ELB question

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Re: ELB question

Post by bigrex on Sat 27 Aug 2016, 23:51

The thing was with Sarvanis, the case was about whether or not getting CPP(D) absolved the government from being held liable in a lawsuit. It had nothing to do about CPP(D) being deducted from the damages that were paid out, as the result of a lawsuit. It does not involve ELB or SISIP.

"38 Simply put, s. 9  of the Crown Liability and Proceedings Act  establishes Crown immunity where the very event of death, injury, damage or loss that forms the basis of the barred claim is the event that formed the basis of a pension or compensation award.  The CPP, a contributory plan not contingent on death, injury, damage or loss, but rather on physical condition and on adequate quantum and duration of contribution, is a significantly different animal."

The second lawsuit quoted involved an RCMP officer who sued for harassment, which led to her quitting her job, and was awarded damages for loss of income and general damages.  So even though the judge did not deduct the money she received from her RCMP pension and LTD from the damages awarded, he did deduct the money she had received from the PA.

"The Superannuation pension is a pension that the plaintiff contributed to and is entitled to as a result of her years of service with the RCMP.  The fact is that if she had worked for thirty-five years she would have contributed more to her pension, and it would have been much larger.  She also contributed to the Great West Life insurance disability plan.  Payments received from those sources are collateral benefits that should not be taken into account when calculating her past and future wage losses.  A tortfeasor should not receive the benefit of the plaintiff’s foresight in contributing to insurance and pension plans.  Thus, the monies paid and payable under the Veteran’s Affairs pension are the only monies that should be deducted from the plaintiff’s wage loss claim."


The third lawsuit that I was able to find, involved lawsuit that was filed after a MV hit a commercial vehicle, that was improperly lit at night, causing death. In that case, the judge deducted CPP benefits that the surviving spouse received due to the death of her husband, from the damages that were awarded.

"The trial judge held that A and D were equally to blame for the accident. He fixed the damages awarded to the plaintiff on behalf of herself and her children at $34,681 plus funeral expenses of $375. In arriving at the amount of $34,681, he deducted $21,318.42 which he found to be the value of the Canada Pension Plan  benefits to which the plaintiff and her children became entitled as a result of the death of G. In the result, the trial judge ordered the defendants CP Ltd. and D to pay to the plaintiff 50 per cent of $34,681 plus $375 or $17,528."

None of these explain how someone could prove that it is illegal to deduct CPP(D), the CF pension, or even SISIP, from the ELB, and are therefor irrelevant.
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Re: ELB question

Post by Vet1234 on Sun 28 Aug 2016, 08:53

I couldn't figure out how it was all related.. Good to know. Thanks Big Rex
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Re: ELB question

Post by LawnBoy77777 on Sun 28 Aug 2016, 12:10

Bigrex, the Sulz BCCA 2006 case took the Pension Act pension off the $950,000 damages.

The CPPD, RCMP pension (same as CF pension) & GWL (same as SISIP) were not deducted from either Tort damages or the pension.

I spoke to the lawyer who represented Sulz appreciated my input when I told him that PA s. 25 allowed Tort damages to be deducted from the PA pension.

In other words, they did it backwards.

At the time, I missed the fact that s. 26 only takes half of the Tort damages. That is a significant advantage.

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Re: ELB question

Post by LawnBoy77777 on Sun 28 Aug 2016, 12:14

Barry Carter is his' name, here is his' reply to me

thanks that is helpful. I don't handle class actions but have connections with those who do.

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Re: ELB question

Post by bigrex on Sun 28 Aug 2016, 16:32

The thing that I read, from Sulz is, it seemed that the judge did not deduct the RCMP pension plan, and the GWL LTD plan, because he believed that it been something that she had done voluntarily and paid for on her own, because he states "tortfeasor should not receive the benefit of the plaintiff’s foresight in contributing to insurance and pension plans". That may be true for RCMP memebers, but not so for CF members. We are automatically enrolled in the CF pension plan and SISIP. But if you had wanted to purchase private LTD insurance, and paid 100% of those premiums, you would be able to collect that in its entirety, without any deductions from SISIP or ELB.
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Re: ELB question

Post by LawnBoy77777 on Mon 29 Aug 2016, 11:28

RCMP Great West Life is a copy of SISIP.

Sulz excerpt with analysis:

Deduction of Superannuation Pension from Damages

[52] The respondent received, on her medical discharge from the R.C.M.P., two kinds of pensions under the R.C.M.P. Superannuation Act. She received a disability pension under s. 32 of the Act (the Veterans Affairs pension) and a superannuation pension under s. 4(1) of the Act.

[53] The trial judge awarded damages to the respondent for past wage loss ($225,000) and loss of earning capacity ($600,000).

He deducted the Veterans Affairs pension from the award of damages for past wage loss, but did not deduct the superannuation pension.

- why BC appealed. No one disputed the right of BC to reduce Tort liability by the Pension Act pension as they are both Tort based & getting both would violate the Compensation principle which states you cannot profit from indemnity.

The trial judge said (at para. 172):

The Superannuation pension is a pension that the plaintiff contributed to and is entitled to as a result of her years of service with the RCMP.

The fact is that if she had worked for thirty-five years she would have contributed more to her pension, and it would have been much larger.

She also contributed to the Great West Life insurance disability plan.

- we contribute to SISIP LTD.

Payments received from those sources are collateral benefits that should not be taken into account when calculating her past and future wage losses.

- GWL = collateral source (not related to the event giving rise to Tort damages) so were not deducted (Bradburn Rule).

A tortfeasor should not receive the benefit of the plaintiff's foresight in contributing to insurance and pension plans.

- we should not lose the value of things we earned to save the WRONGDOER money. That is a Public Policy reason for this.

Thus, the monies paid and payable under the Veteran's Affairs pension are the only monies that should be deducted from the plaintiff's wage loss claim.

- this is the OPPOSITE of the Manuge case. The BCSC judge rightly (sort of) deducted 1 indemnity from another. I saw "sort of" as Sulz would only have lost half had the value of the Tort damages been deducted from VAC instead of the other way around. (Pension Act s. 26)

[54] The Province says that the trial judge erred in failing to deduct the superannuation pension “from the respondent’s income loss awards to prevent double recovery.”

- Indemnity principle or Compensation principle, only applies to indemnity & SISIP isn't indemnity

It acknowledges that the respondent made contributions to the pension, but says that the trial judge did not cite any authorities for his conclusion that the pension was not deductible from the damages award.

- BC said the judge was arbitrary in his' reasoning by not citing his common law authority. Since this case, IBM v Waterman SCC 2013 came out, a level higher than Sulz. A better precedent. Waterman's Defined Benefit pension was not used to reduce his contractual damages even though IBM paid 100%. It paid 100% "on behalf of" Waterman, like the SISIP LTD premiums.

- that 100% payment by us means:

1. ELB cannot clawback SISIP LTD;

2. SISIP LTD has to be tax free as Income Tax Act s. 6(1)(f) does not apply.

I've done a lot of research on this & the odds of being wrong are zero.

Precedents provide order in law. Manuge's case violated precedent.

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Re: ELB question

Post by LawnBoy77777 on Mon 29 Aug 2016, 11:38

bigrex, here is an interesting policy

Resolve Doubt in Favour of Client

Should the decision maker be unable to determine with certainty whether a reported income is employment earnings, self-employment earnings, or investment income, the calculation of the EL benefit will be done in such a way as to provide the Veteran with the higher monthly EL benefit before taxes.

- with certainty is 100%, scientific proof.

- easy to disprove:

A. CFSA s. 83 & FAA s. 67 say no one can touch the CF pension. They can no longer be 100% certain due to conflicting laws ☺

B. Same for CPPD: CPP Act s. 65(1) & FAA s. 67;

C. SISIP LTD: Bradburn Rule & SISIP's non-assignability clause. We can't give it away if we wanted to ☺

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Re: ELB question

Post by Guest on Mon 29 Aug 2016, 15:26

ya lawnboy the sulz case doesn't seem to set any president in law for deducting PA pension from the wage loss under tort at least as I can see . seems to me he had to make a decision on the other deductions but the PA pension deduction seems went uncontested so not really requiring a decision at all .

I would have contested it and probably won .

1. PA pension is NOT tort never has been never will be . the PA pension is the PA pension that's it that's all its an entity unto itself .

2. yup judges have to quantify it somehow to solve for double recovery and often liken it to tort damages but tort damages cover a wide range of damages such as wage loss general damages pain and suffering yada yada yada . leaving the question WHAT TYPE of tort damages does the PA pension resemble the closest ? one of them ? all of them ? some of them ?

certainly there are some arguments for each case . the thing is to me .

3. the PA pension in no way resembles wage loss under tort thus no part of it should be considered for set off against tort wage loss .

by the way the big decision the judge made in the Manuge's case was is the PA pension income ?????

answer NO IT IS NOT !!!!! and he was right because EVEN IF it was wage loss under tort it is still NOT considered income .

ya see what I'm saying ???

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Re: ELB question

Post by LawnBoy77777 on Mon 29 Aug 2016, 20:36

propat, Justice Barnes was either crooked or stupid.

Sulz BCCA was a year earlier & a level higher so he had no choice but to follow it. Like the Cain of Command. Lower level judges must obey higher level judges.

Manuge's case was Federal Court which is the same as provincial Supreme Court.

Federal Court of Appeal is the same as BC Court of Appeal.

Supreme Court of Canada is the last court of Appeal.

The pension is not income, I agree totally.

It is Capital.

Bodily damage is replaced by Capital as your body is Capital.

So the judge was right in one regard, the pension is not income.

Income is an increase in wealth. Insurance, by definition, replaces what you owned but lost. Therefore, SISIP & the pension are BOTH not income.

SISIP LTD is non-indemnity & contributory insurance whereas the pension is contributory (service + Right to sue) & indemnity insurance. They are apples & oranges & we can get both.

The judge got that right. He just screwed the pooch calling the pension a pain & suffering award. It is no such thing.

It is payable to replace lost earning capacity.

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Re: ELB question

Post by LawnBoy77777 on Mon 29 Aug 2016, 20:45

propat, leading case on damages is Andrews SCC 1978:

b) Prospective loss of earnings
We must now gaze more deeply into the crystal ball. What sort of a career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made: The Queen v. Jennings, supra. A capital asset has been lost: what was its value?

- Personal injury damages are a replacement for Capital, ability to earn

- for this reason, it has to be tax free too

- the capital nature of the pension meant it was tax free so ELB/PIA/PIAS/DA must be tax free

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Re: ELB question

Post by Guest on Mon 29 Aug 2016, 21:01

hold on buds although I agree with a lot of that on its premise and I'm half in the bag so I aint doin anymore research tonight . I don't recall barns EVER deciding that the PA pension is pain and suffering ( could be wrong ) but he did decide it is NOT INCOME . love your legal posts BTW .

now I would love to argue it is 100% pain and suffering I may lose but would love to have that conversation regardless . but two things I know I can prove is that the PA pension does not in any way resemble wage loss in tort and AT LEAST a part of that pension resembles pain and suffering under tort .

so ya IF he decided 100% of the PA pension resembles pain and suffering and nothing else I would like to agree with him but admit he could have been wrong .

BTW when you previously mentioned they took the PA pension from the 900 plus Gs ya might want to double check that . when you read again you might figure out what I'm saying .

thanks for your reply buds much appreciated .

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Re: ELB question

Post by LawnBoy77777 on Tue 30 Aug 2016, 18:40

I was simplifying the Sulz case, I think it was taken off the "past wage loss." Not really sure if that is right but if I'm right, she would have been better off had they reversed it as Pension Act s. 26 only takes half. That would be 50% better☺

BTW, anyone here want to confirm something & see if VAC/SISIP are doing the clawbacks too high.

The problem is SISIP adds COLA to the clawback when the policy says not to.

1. Reg F: Division 2, s. 24(b);

2. Res F: Division 3, s. 44(b).

SISIP are ignoring me & I don't get ELB, yet.

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Re: ELB question

Post by Guest on Tue 30 Aug 2016, 19:06

was zero sum for SISIP after the suit they were doing it to me . I made them stop .

currently zero sum for ELB .

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Re: ELB question

Post by bigrex on Tue 30 Aug 2016, 20:14

Actually Lawnboy, since the PA pension/disability award amounts are based solely on the extent of the injury, and the affect it has on ones quality of life, it is seen as more akin to pain and suffering awards that are assigned by the courts, than as damages for loss of earnings capacity. The courts, for income related damages have to look at the type of work the person was doing, the wages that the appellant was earning in that job, as well as possible wage increases that they could receive in the future, the age of the appellant (someone who is 25 when injured is going to lose more earnings over their lifetime, than someone in their 60's), and the likelihood of further career progression in that job. If any of that was ever taken into account by VAC when deciding a disability pension/award, even a totally disabled NCO in the infantry, with only a HS diploma, would never get the same or more compensation, as an officer, who was a specialist, like a Doctor, lawyer or pilot. And considering that a person can be granted a disability pension/award, without any career implications, and easily transition into civilian life, because the disability does not interfere with their occupation. Where as someone else, could receive the same disability amount, be kicked out of the CF, and never be able to work a full time job ever again, simply because of how the disability affects their type of employment opportunities.
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Re: ELB question

Post by Guest on Tue 30 Aug 2016, 20:30

correct bigrex the PA pension behaves nothing like wage loss under tort as I stated earlier .

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