ELB question

actually she IN FACT did keep both pension and damages because she only lost part of the pension and kept the damages not related to wage loss .

the thing is they deducted the wage loss portion of damages from the pension . these two things are not alike in any way and paid for completely different reasons thus offending the Indemnity principle .

sure they could have very well detected the other damages in whole or in part as they do seem to act somewhat like the PA pension . but not the wage loss .

cost the client 235,000 tax free dollars .

bad move

propat

There was no chance of Sulz keeping both pension & damages as that would violate the Indemnity principle.

I talked to to lawyer & offered him a way to get her the money back, maybe. Because the Federal law should have come first. While this might seem no difference, the Pension Act (I read recently) only takes HALF. She would have been 2x as well off.

What I told the lawyer was to ask for the pension + damages due to the mistake in law by failing to note the Pension Act came first. It was a slim chance BUT that new point is a dman good one. I should email him again. Barry Carter, seems like a very good lawyer, represents RCMP & CF members a lot I think. Practicing 36 years.

ya know what bugs me in the sulz case is why the PA pension deduction was not contested . yup in the end they may have deducted it from the entire general damage award or part of that . thing is even if the judge likened the PA pension to general damages in its entirety . they were 125,000

the total amount for past and future wage loss was around 360,000

the lawyer could have put an extra 235,000 tax free dollars in his clients pocket .

huge mistake I think .

propat

propat

War Amps ONCA 1997:

From its inception the basic pension has been paid to the disabled veteran because

of the particular gravity of the disability he suffered in the service of his country

and

its impact on his capacity to earn a basic living.

- The pension is loss of earning capacity.

As I have indicated, the basic pension is paid to the disabled veteran because of the degree of particular disability he suffered in the service of his country and its relative impact on his capacity to earn a basic living.

- loss of earning capacity; not a word about pain yet...

It is based entirely on the level of disability with which he must live for the rest of his life.

- why ELB must be lifelong...

The underlying rationale is to provide some compensation for the severity of the particular disability endured and its relative impact on earning capacity.

- "Some compensation..." Compensation means to be paid in full for loss. "Some" indicates less than full... Earning capacity keeps getting repeated so it MUST be important ☺

The basic pension depends only on the degree of disability burden that continues to rest on the veteran throughout his life.

- I'm trying to get vets behind converting ELB to:

1. Lifetime;

2. No clawbacks;

3. No mandatory Rehab as a condition of damages;

4. No tax, CAPITAL isn't taxed (Jennings SCC 1966)

bigrex you make some good points but it isn't up to me & you.

The Supreme Court pronounced on damages in 1978 (I was 12, they didn't ask me☺) & they said Andrews was to be paid in Capital as that was what he lost. The pension & WCB were mentioned briefly in that case as they are Tort law replacements.

Paul Weiler stated that WCB does not include a non-economic loss component. I have not verified his' statement but he is (or was, if dead) an expert in Compensation. I disagree with him on some points.

The much quoted, by me anyway, Sarvanis SCC 2002 case reveals the Pension Act pension to be an Indemnity payment based on an event causing injury, death or loss in service. That is the very definition of Tort damages. However, like WCB, it is a compromise & you only get some Compensation, not full Compensation.

Now, on to what I came to post in the 1st place ☺

"The earnings loss benefit is provided in recognition of the economic impacts of a career ending and/or service-related health problem on a veteran’s ability to earn income following release from the military."

ELB is CAPITAL too. Therefore it is not supposed to be taxed. Interesting point, huh.

I seem to gravitate to taxes a lot as I worked for those bastards at CRA for 16 years. I have a $2.6 Million lawsuit pending vs CRA that I've placed on hold until I fix the veteran's issues.

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

propat

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.

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

currently zero sum for ELB .

propat

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.

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 .

propat

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

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.

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 ???

propat

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 ☺

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.