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FOR TORTS - Fraud and misrepresentation

Friday, September 13, 2019 @ 8:47 AM  


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Appeal by the plaintiffs from the trial judge’s interpretation of Schedule 6 of the Public Sector Pension Plans Act. In 1992, Alberta created two separate public sector pension plans to replace the Old Plan. The Public Sector Pension Plans Act established 1992 as the inception date. The plaintiff Calder worked for the Province until 1986 and then returned in 1995 until his retirement in 2011. The respondent initially calculated Calder’s pension entitlement based on a 2009 Interpretation, pursuant to which the highest annual salary on which pension calculations were based included any post-inception salary. In 2014, the respondent invoked a 2012 Interpretation, pursuant to which the benefits were confined to the Old Plan salary earned after inception in 1992 but before division in 1994. The effect was to reduce Calder’s entitlement from $8,000 per month to $2,000 per month. The trial judge concluded the 2012 Interpretation was correct. He found the respondent liable for negligent misrepresentation. He determined if Calder was properly advised, he would have deferred retirement for three additional years. He awarded $265,017 in damages, being the difference in pension Calder would have received.

HELD: Appeal dismissed. The trial judge correctly found the 2009 Interpretation would lead to an absurdity. He correctly concluded the 2012 Interpretation should be adopted to prevent the absurdity. The 2012 Interpretation was consistent with the purpose of the Act. The usage of the 2009 Interpretation was not workable or sufficiently entrenched to justify imposing it in favour of a more reasonable interpretation. The trial judge applied the correct legal test for assessing damages for negligent misrepresentation. He made reasonable findings based on the record before him.

Calder v. Alberta, [2019] A.J. No. 978, Alberta Court of Appeal, M.G. Crighton, E.A. Hughes and J. Antonio JJ.A., July 25, 2019. Digest No. TLD-September92019015