Law Times

Page 6 March 11, 2013 • Law TiMes COMMENT u Editorial obitEr By Glenn Kauth Logic prevails on doubledipping pensioners F ormer Ontario government employees involved in the administration of the former retail sales tax who became federal public servants with the advent of the harmonized sales tax won't be able to collect their provincial pensions, the Divisional Court has determined. Ruling in Ontario Pension Board v. Ratansi on March 1, the court reversed a decision of the Financial Services Tribunal that allowed the employees to immediately receive unreduced pensions from the provincial public service pension plan. They could do so even as they continued working for the federal government as a result of the switch from one tax to another a couple of years ago. From the public's perspective, it was a ridiculous situation. The employees didn't lose their jobs, so why should they be able to collect a provincial pension while receiving a federal salary? It's little wonder our public finances are in such trouble when the law supposedly allows such double dipping. Of course, the law doesn't actually allow that, as the Divisional Court found. The ruling centred on the interpretation of s. 80 of the Pension Benefits Act that deals with employee transfers from one employer to another. According to s. 80(3), "Where a transaction described in subsection (1) takes place, the employment of the employee shall be deemed, for the purposes of this act, not to be terminated by reason of the transaction." The tribunal found the provision applies only to employment and not pension plan membership, meaning that as the move to the federal government meant the employees were no longer mandatory members of the provincial plan, they could now apply for their Ontario pensions. The Divisional Court, however, found the tribunal's interpretation was "not a reasonable one, largely because of its error in interpreting s. 80(3) too narrowly." As the court noted, "the language 'for the purposes of the act' in s. 80(3) of the [Pension Benefits Act] makes it clear that an employee's deemed continuation of employment is effective for purposes of pension benefits and not, for example, vis-a-vis the Human Rights Code, the Employment Standards Act or some other statute. That is, the phrase is meant to clarify the scope of the deeming provisions, not restrict it." Thank goodness for such logic. It would have obviously been unfair for the situation as held by the tribunal to continue. There's no room for double-dipping pensioners in the current fiscal environment. — Glenn Kauth Native protests spark fine words but little material change T his winter, aboriginal issues pushed their way into the headlines with the hunger strike of Chief Theresa Spence and the emergence of the Idle No More movement. With Spence's protest over and the movement considering its next steps, now is a useful time to reflect on a similar protest that occurred almost 40 years ago. The early 1970s were also a time of renewed aboriginal activism across North America, especially among young people. The 1969 federal white paper calling for a new approach to the First Nations based on equal rights and the elimination of so-called native privileges faced widespread opposition. At the same time, the American Indian Movement (AIM) was calling for a renewal of the treaty relationship with the United States and the restoration of Indian lands. In February 1973, traditionalist Sioux occupied the hamlet of Wounded Knee, S.D. The occupation resulted in a 71-day siege by the FBI that gained worldwide attention. In Canada, highway blockades arose in Cache Creek, B.C., and traditionalist warriors occupied a park in Kenora, Ont., in the summer of 1974. While seen as successful efforts, native groups decided to Law Times to Parliament to present their appeal to the public through more peaceful means. Thus That's petition. Naively, they thought some MP would come out arose the Native People's CaraHistory to meet them. Despite their van, a cross-Canada journey proclaimed non-violent phidesigned to draw attention to losophy and the fact that entire aboriginal issues. It began with families marched together, the several busloads of participants RCMP took no chances. Poin Vancouver on Sept. 15, 1974, lice stood with arms linked and and aimed to arrive in Ottawa four officers deep behind barriat the end of the month when it cades while the caravan memwould present native grievancbers drummed and chanted. es at the opening of Parliament. Philip Girard Behind the protective Like Idle No More, the caravan screen of security, the usual cerwasn't a product of the official native leadership. Activists at Cache Creek emonies continued, albeit in a somewhat and Kenora, members of AIM Canada, surreal atmosphere. While MPs gathered and others such as Métis leader Vern inside, native leaders made their own speeches and demanded a meeting with Harper came up with the idea. Once in Ottawa, the caravan mem- the prime minister. After the speech from bers headed for Victoria Island, the same the throne was over, the crowd surged place chosen by Spence for her protest. forward and those in front were thrown Situated above the Chaudière Falls, the against the barricades. The RCMP reacted island has been a site of cultural, eco- with force and violent scuffles ensued unnomic, and spiritual significance for na- til they re-established an uneasy peace. Some time after, however, a fully equipped tive peoples for thousands of years. But in 1974, the reality was rather grit- RCMP riot squad swept in, forcing all of tier. About 200 caravan members took the protesters off Parliament Hill and into shelter in an abandoned factory on Vic- the street and leaving many injured. Despite the similarities, there are also toria Island on the evening of their arrival on Sept. 29. The next day, they marched interesting contrasts between the protests Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . 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Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com of then and now. The North American backdrop that was key in 1974 has disappeared. The role of women in native politics is much more evident now compared to 1974. Police now use violence as a last resort in interactions with native protesters; indeed, some judges criticize them for not being aggressive enough with those blocking railways and highways. In 1974, native leaders addressed their demands to Parliament. In the intervening years, a renewed focus on the Crown and the governor general has emerged. So did the caravan achieve anything? The first demand in their 10-point manifesto was that "the hereditary and treaty rights of all native peoples in Canada, including Indian, Métis, non-status, and Inuit, must be recognized." Only eight years later, almost those very words appeared in s. 35 of the Constitution Act of 1982. The challenge for the future remains translating those fine words into material change for Canada's First Nations. LT Philip Girard is a legal historian and professor at Dalhousie University's Schulich School of Law. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is philip.girard@dal.ca. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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