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A-651-79
The Queen (Appellant) v.
Eileen Ethel Beaton and Betty Frances Bryant (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Verchere D.J.—Vancouver, April 1; Ottawa, May 29, 1981.
Crown — The Returned Soldiers' Insurance Act — Appeal from Trial Division decision whereby respondents were held to be the beneficiaries of proceeds of an insurance policy issued under the Act in 1922, notwithstanding a change of beneficiar ies made by the insured pursuant to subsequent amendments to the Act — Whether rights of the respondents under the policy must yield to the appointment of new beneficiary — The Returned Soldiers' Insurance Act, S.C. 1919-20, c. 54, as amended — Interpretation Act, R.S.C. 1927, c. 1, s. 19(1)(c).
The question on appeal is whether the rights of the respond ents as the beneficiaries of the proceeds of an insurance policy issued in 1922 under The Returned Soldiers' Insurance Act on the life of their father must yield to his appointment in 1960 of his son as sole beneficiary in their place. As it stood in 1922, the Act did not provide that an insured could change the designation of a beneficiary save in order to replace a benefici ary who had died. In 1951 the Act was amended and a new section 6 was enacted which made it possible for an insured to change the beneficiaries at any time by so stating in a docu ment that was satisfactory to the Minister. The Trial Judge held that the respondents were entitled to the proceeds on the basis of the presumption that section 6 as enacted in 1951 was not intended to authorize interference with the rights of such previously designated beneficiaries as the respondents here.
Held, the appeal is allowed.
Per Pratte J.: This is not a case governed by section 19(1)(c) of the Interpretation Act. The problem is not to determine the effect of the repeal of an enactment but to determine the effect of a new enactment. The new section 6 is clear: it simply gives to all persons insured under the Act the right to change the beneficiary or beneficiaries. It cannot be conceived that this provision would have been formulated in that straightforward way if Parliament had wanted it to have the very limited effect ascribed to it by the Trial Division.
Per Verchere D.J.: Even if the words endorsed on the policy on June 1, 1922 gave the respondents some right in law to receive the insurance money on their father's death, it cannot be said that the 1951 amendment to the statute had a retro spective effect when it was applied to them and hence ran counter to the presumption referred to. The expression "beneficiary or beneficiaries" contained in section 6 as enacted in 1951, comprised a description of the subject of the enact ment as it existed both after as well as before the section was
enacted; and the application of it to those persons did not mean that it was being given retrospective effect.
West v. Gwynne [1911] 2 Ch. 1, referred to.
APPEAL. COUNSEL:
W. B. Scarth, Q.C. and H. Robertshaw for
appellant.
G. F. Culhane for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
MacQuarrie, Hobkirk, McCurdy, Schuman, Culhane & van Eijnsbergen, Vancouver, for respondents.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is an appeal from a judgment of the Trial Division [[1980] 2 F.C. 527] holding that the respondents are entitled to the proceeds of an insurance policy on the life of their father, Major Ralph Asser, issued by the Dominion of Canada under The Returned Soldiers' Insurance Act.'
On March 29, 1922, Major Asser took advan tage of The Returned Soldiers' Insurance Act and applied for an insurance policy of $5,000. The policy was issued on June 1, 1922; it specified that the proceeds of the policy were payable to the insured's wife, Frances Louisa Asser, and, in the event of her predeceasing her husband, to their two daughters, the respondents.
On August 2, 1960, Major Asser changed the designation of beneficiaries contained in the policy; he then signed a form, which was registered with the Superintendent of Veterans' Insurance at Ottawa on August 8, 1960, revoking the designa tion contained in the policy and designating his son, Donald Asser, as sole beneficiary.
Major Asser died after his wife on October 14, 1972. His daughters, the two respondents, sued the appellant claiming to be entitled to the proceeds of
' S.C. 1919-20, c. 54, as amended by S.C. 1921, c. 52.
the insurance policy in spite of the change of beneficiaries made by their father on August 2, 1960.
The sole question to be resolved on this appeal is whether the Trial Division was right in holding that the purported change of beneficiaries made by Major Asser in 1960 was unauthorized by The Returned Soldiers' Insurance Act and, for that reason, devoid of any legal effect.
As it stood in 1922, The Returned Soldiers' Insurance Act did not provide that an insured could change the designation of a beneficiary save in order to replace a beneficiary who had died. From the absence of such a provision as well as from certain provisions of the statute showing that the insurance moneys were payable to the benefici aries and not to the insured's estate, the Trial Division inferred that, once appointed, a benefici ary had, under the Act, proprietary rights in the contract of insurance and its proceeds- and could not be deprived of those rights by any act of the insured.
The statute, however, was amended in 1951 2 so as to provide, in section 6, that:
6. Subject to the provisions of this Act, the insured may at any time change the beneficiary or beneficiaries ... by so stating in a document that is satisfactory to the Minister.
That amendment clearly applied to insurance policies that had been issued prior to 1951 since, under the Act as amended, no application for insurance could be received after the thirty-first day of August 1933. The Trial Division neverthe less invoked the presumption that an amendment is not intended to adversely affect vested rights to support its conclusion that the only effect of the new section 6 was to empower an insured to change beneficiaries whom he had appointed after the date of the amendment in replacement of beneficiaries who had predeceased him.
I cannot agree with that conclusion. Contrary to what the learned Judge seems to have assumed, this is not a case which is governed by section
2 S.C. 1951, e. 59.
19(1)(c) of the Interpretation Act. 3 The problem, here, is not to determine the effect of the repeal of an enactment but, rather, to determine the effect of a new enactment. True, the amendment of 1951, in addition to enacting a new section 6, repealed other provisions of the Act, but, in so far as I know, the rights of the respondents were in no way affected by the repeal of those provisions. The sole question to be answered in this case relates to the effect of the new section 6.
In order to correctly appreciate that effect, one must have present in mind the rule of statutory construction according to which, it is presumed, in the absence of a clear intention to the contrary, that Parliament did not intend to interfere with vested rights. However, one should not forget that, as Driedger says, 4 that presumption "is not a prima facie presumption, but only a presumption that may be invoked when the statute is reasonably susceptible of two meanings."
In my respectful opinion, the new section 6 is clear: it simply gives to all persons insured under the Act the right to change the beneficiary or beneficiaries. I cannot conceive that this provision would have been formulated in that straightfor ward way if Parliament had wanted it to have the very limited effect ascribed to it by the Trial Division.
In my view, the amendment of 1951 clearly gave to Major Asser the right to change the beneficiar ies named in his insurance policy.
For those reasons, I would allow the appeal, set aside the decision of the Trial Division and declare that the proceeds of Policy No. 11255 issued by the Dominion of Canada under The Returned Soldiers' Insurance Act are payable to Donald Asser, the son of the insured. I would also grant
3 R.S.C. 1927, c. 1:
19. Where any ... enactment is repealed, ..., then, unless the contrary intention appears, such repeal ... shall not, save as in this section otherwise provided,
(c) affect any right ... acquired ... under the ... enact ment ... so repealed ....
4 Driedger, The Construction of Statutes, p. 139.
the appellant her costs both in this Court and in the Trial Division.
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The following are the reasons for judgment rendered in English by
LE DAIN J.: I have had the advantage of read ing the reasons of my brothers Pratte and Ver- chere, and t agree that the appeal should be allowed on the ground that the presumption against interference with vested rights, assuming that The Returned Soldiers' Insurance Act had the effect of creating such rights, is displaced in this case by what must be taken to be the clear intention of Parliament, arising from the terms and possible effect of section 6 of the Act, as enacted in 1951 and amended in 1958, that the section should apply to all existing policies and all appointments of beneficiary, whenever made.
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The following are the reasons for judgment rendered in English by
VERCHERE D.J.: The question raised on this appeal can be briefly stated, namely, whether the rights of the respondents as the beneficiaries of the proceeds of an insurance policy issued June 1, 1922 under the provisions of The Returned Sol diers' Insurance Act on the life of their father must yield to his appointment in 1960 of their half-brother, Donald Asser, as such beneficiary in their place. The appellant contends that the answer to that question is in the affirmative, that is to say, that Mr. Donald Asser is the person entitled to receive the proceeds of the policy; and in support of the validity of the insured's right to appoint a beneficiary of the policy in the place of his earlier appointed daughters, relies on section 6 of the Act as enacted in 1951, which reads as follows:
6. Subject to the provisions of this Act, the insured may at any time change the beneficiary or beneficiaries ... by so stating in a document that is satisfactory to the Minister.
The learned Trial Judge was of the opinion that section 6 as enacted in 1951 was not intended to authorize interference with the rights of such pre-
viously designated beneficiaries as the respondents here. After a detailed examination of sections 4-12 and sections 16 and 20, he concluded [at page 540] that the statute, by providing that the con tract of insurance was for the benefit of the desig nated beneficiaries and that its proceeds should be paid to them, "in my view, confers on them the legal, as well as the equitable, right to payment of the insurance money in accordance with such limi tations to them as are expressed in the policy." And then, because section 6 was by its wording made subject to all the provisions of the Act, including the right to name beneficiaries when a named beneficiary had died, he further concluded [at page 544] "that the presumption that the amendment was not intended to authorize interfer ence with the rights of beneficiaries under designa tions existing at the time of the enactment should prevail." Accordingly, he held that the action should succeed.
With great respect, I have concluded that an opposite result should prevail, that is to say, that after the enactment of section 6 in 1951 it was open to the insured to revoke a previous appoint ment and appoint a new beneficiary as was done here. I agree with the opinion expressed by Pratte J., whose reasons for judgment I have had the privilege of reading, that the 1951 amendment gave the insured a right to change the beneficiary of the proceeds of his insurance policy because, as I respectfully comprehend his opinion, as a new enactment and not a repeal of a former provision, it was not governed by section 19(1)(c) of the Interpretation Act, R.S.C. 1927, c. 1; and because its straightforward formulation negated any view of its effect other than that it gave an insured the right to change the beneficiary of his policy.
I wish to add, however, that even if the words endorsed on the policy on June 1, 1922 gave the respondents some right in law to receive the insur ance money on their father's death, it cannot be said, in my respectful opinion, that the 1951 amendment to the statute had a retrospective effect when it was applied to them and hence ran counter to the presumption to which reference has already been made. It seems to me that the expres sion "the beneficiary or beneficiaries" contained in
section 6 as enacted in 1951, comprised a descrip tion of the subject of the enactment as it existed both after as well as before the section was enact ed; and that the application of it to those persons did not mean that it was being given retrospective effect.
On this subject, Driedger, in his text entitled The Construction of Statutes says this at page 144:
The subject and the fact-situation can be described either by reference to some characteristic possessed by them, or by reference to the happening of some event. Where the subject or the fact-situation is described by reference to a characteristic, the statute is not being given retrospective effect when it is applied to persons or things that possessed that characteristic prior to the enactment of the statute if they possess it after the statute is enacted; but where the subject or fact-situation is described by reference to the happening of an event, then the statute would be given retrospective effect if it is applied so as to impose a new duty or attach a new disability in respect of events that took place before the statute was enacted.
I respectfully agree with the views expressed by the learned author and accordingly I hold, as already indicated, that the action of the insured in 1960, when he revoked the designation endorsed on his insurance policy and by a form, which was then registered with the Superintendent of Veter ans' Insurance, designated Donald Asser as the sole beneficiary of its proceeds, did not entail any retrospective effect being given to the amendment to the statute made in 1951. Support for that view emerges from West v. Gwynne [1911] 2 Ch. 1, to which counsel for the appellant referred us. There the question was whether section 3 of the Con- veyancing Act, 1892, was of general application or whether its operation was confined to leases made after the commencement of the Act, and at page 12 Buckley L.J. said this:
But if at the date of the passing of the Act the event has not happened, then the operation of the Act in forbidding the subsequent coming into existence of a debt is not a retrospec tive operation, but is an interference with existing rights in that it destroys A.'s right in an event to become a creditor of B. As matter of principle an Act of Parliament is not without suffi cient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this section I have simply to read it, and, looking at the Act in which it is contained, to say what is its fair meaning.
I adopt those words as applicable here to provide the support to which reference has just been made.
For these reasons I would accordingly allow the appeal and declare that the proceeds of Policy Number 11255 issued to Major Ralph Asser by the Dominion of Canada under The Returned Soldiers' Insurance Act be payable to his son Donald Asser as the properly named beneficiary of them.
The appellant will have her costs in this Court and in the Trial Division.
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