Law Times

Law Times • May 25, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Constitutional Law COURTS 'Courts of Quebec' contemplated by s. 98 of Constitution Act, 1867 are Superior Court and Court of Appeal of Quebec Governor General of Canada appointed judge to Quebec Court of Appeal. Prior to ap- pointment, judge was member of Barreau du Quebec, judge of Federal Court and then Federal Court of Appeal Judge. Quebec solicited opinion of court on two constitutional questions: which Quebec courts are cov- ered by s. 98 of Constitution Act, 1867, and what conditions for appointing judges to Que- bec courts are required under s. 98 and, specifically, whether s. 98 permits appointment of persons who are members of federal courts. Historic context takes on particular importance in determining purpose of s. 98 in almost total absence of case law or learned commentary. Important fundamental dis- tinction between compromise of 1867 that permitted civil law tradition to f lourish in Quebec and creation of general court of appeal for Canada. In matters of constitutional interpretation, provision that embodies his- toric compromise must be in- terpreted in manner to preserve compromise. Section 3 of Judges Act (Can.) (JA), lists conditions of appointment of judiciary more detailed than those in s. 98. Section 3 requires link to Bar of province from which judge named, but addresses both ad- vocates or barristers who per- formed duties and functions of judicial nature on full-time basis after admission to Bar and contemplates promotions from inferior provincial or federal courts to superior trial or appel- late court. Practice of appoint- ing judges to superior courts who are jurists with substan- tial degree of skill in local law, whether acquired by practice or by exercise of judicial functions, followed in Canada for almost 175 years. Section 98 is consti- tutional provision made subject to legislative interpretation via s. 3 of JA. Nothing in s. 3 incom- patible with s. 98. "Courts of Quebec" contemplated by s. 98 are Superior Court and Court of Appeal of Quebec. Candidate for appointment to judiciary in accordance with s. 98 must be- long or have belonged to Bar of Province of Quebec. Judge of federal courts who was mem- ber of Barreau du Quebec prior to becoming judge may be ap- pointed to Court of Appeal of Quebec of Superior Court of Quebec. Appeal by AGQ, LSUC and CRC dismissed. Supreme Court of Canada agreed with reasons of Quebec Court of Ap- peal. Quebec (Attorney General) v. Canada (Attorney General) (Apr. 24, 2015, S.C.C., McLach- lin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., and Côté J., File No. 36231) 251 A.C.W.S. (3d) 442. Insurance AUTOMOBILE INSURANCE Applying established 'nexus' test, first insurance company to receive com- pleted SABS application was obliged to pay while disputing coverage Pursuant to Statutory Accident Benefits regulatory scheme, first insurer to receive application for statutory accident benefits (SABS) following accident pays them, provided there is some connection between claimant and insurer. If insurer takes position another insurer is re- sponsible for SABS, it must give notice within 90 days; insurers then follow statutory scheme of arbitration to determine which insurer should pay. SS rented ve- hicle from "Wheels 4 Rent" in- sured pursuant to motor vehicle liability policy issued by Zurich. Chubb issued accident policy to Wheels 4 Rent which provided optional death and dismem- berment insurance to Wheels 4 Rent customers, but contained no coverage for motor vehicle accident liability. SS did not purchase Chubb's optional cov- erage. Following single vehicle motor vehicle accident, she sub- mitted SABS claim to Chubb, having received pamphlet from Wheels 4 Rent. Chubb refused to pay. Zurich paid SABS and insurers submitted dispute to arbitration, agreeing that liabil- ity depended on whether Chubb was insurer within meaning of s. 268 of Insurance Act (Ont.). Arbitrator held Chubb not "in- surer" for purposes of prior- ity dispute settlement statutory regime as insufficient nexus between Chubb and SS since Chubb never issued motor ve- hicle liability policy to either Wheels 4 Rent or SS. Zurich's appeal allowed, but Chubb's ap- peal to Ontario Court of Appeal also allowed. Majority of Court of Appeal held application judge erred in concluding Chubb pol- icy was motor vehicle liability policy as no element of that pol- icy insured against liability to others arising out of damage or injury caused by automobile or use or operation thereof. Justice Juriansz in dissent, held that ap- plying established "nexus" test, Chubb, as first insurance com- pany to receive completed SABS application, was obliged to pay while disputing coverage. Leg- islature could not have intended regulation would apply to insur- ers that do not offer motor vehi- cle liability policies to public but Chubb regularly writes motor vehicle liability policies and not "non-motor vehicle liability in- surer" in broad sense. SS's choice to send application to Chubb not random or arbitrary. Public policy to provide timely delivery of benefits would be seriously eroded by allowing insurance company that writes motor ve- hicle liability policies to argue, in case in which nexus test satis- fied, that it is non-motor vehicle liability insurer. Zurich's appeal to Supreme Court of Canada al- lowed. Supreme Court of Can- ada agreed with dissenting rea- sons of Justice Juriansz. Zurich Insurance Co. v. Chubb Insurance Co. of Canada (Apr. 17, 2015, S.C.C., Abella J., Roth- stein J., Cromwell J., Karakat- sanis J., Wagner J., Gascon J., and Côté J., File No. 36002) De- cision at 239 A.C.W.S. (3d) 997 was reversed. 251 A.C.W.S. (3d) 488. FEDERAL COURT OF APPEAL Employment PUBLIC SERVICE Matter was referred back to Veterans Review and Appeal Board for reconsideration of retroactivity of pension in light of breach of duty to inform Veteran had fought for Canada during Second World War. In 1996, veteran filed applica- tion for disability pension for stomach ulcers. Veteran passed away in 2005, and his daugh- ter continued proceedings on his behalf. Minister rendered decision whereby pension ap- plication was denied because veteran's condition did not arise from military service. That de- cision was confirmed by review panel of Veterans Review and Appeal Board (VRAB) in 2007. However, appeal panel of VRAB held that daughter and surviv- ing spouse were entitled to pen- sion and established effective date of pension retroactively to November 9, 2005, but no ad- ditional award was granted. In 2009, reconsideration panel of VRAB established effective date of pension as October 30, 2004, and granted additional award of 24 months, taking into consid- eration administrative difficul- ties experienced by daughter. In 2010, VRAB rejected new ap- plication for review, finding that that Department of Veterans Affairs of Canada (VAC) did not breach duty to provide coun- selling service under s. 81(3) of Pension Act (Can.), when pro- cessing disability pension appli- cation and that disability pen- sion payment date of October 30, 2004 should be confirmed. On application for judicial re- view, judge concluded that VAC breached duty to inform under s. 81(3) of Act, which caused delay in paying pension. Ap- plication for judicial review was allowed and matter was referred back to VRAB for reconsid- eration of retroactivity of pen- sion in light of breach of duty to inform. VRAB confirmed maximum retroactivity pe- riod that set pension's effective date at October 30, 2004, and maximum additional award equivalent to two years' pension. VRAB rejected argument that case should be remitted back to Minister for additional award. Surviving spouse and daughter unsuccessfully brought mo- tion seeking judicial review of VRAB's decision. Federal Court Judge found that VRAB correctly refused to remit mat- ter back to Minister and deci- sion was reasonable. Surviving spouse and daughter appealed. Appeal dismissed. Federal Court Judge did not err with re- spect to relevant standard of re- cASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. 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