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.
* * *
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.
* * *
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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.