LAW REPORTS.

Dominion, Volume 2, Issue 564, 20 July 1909, Page 7

LAW REPORTS.

COURT OF APPEAL, -SHALL BROKEN SERVICE COUNT? RAILWAY SUPERANNUATION. Whether broken borvioe in the railway service shall count for superannuation purposes was a question, submitted to the Court of Appeal yesterday. On the Bench were Wieir Ecmours Justics Williams (Acting-Chief Jtrstico), Edwards, Cooper, and Chapman Preeeeding on an originating summens under tbe Declaratory Judgments Act, 1508, John Donds (plaintiff) called upon tho Minister for Railways (defendant) 4)0, disproro his clauns Mr C. P. Skerrett, K.C., and Mr. Ostler, for tho plaintiif, and Professor Silmdhd on behalf of the. Minister for Railways. - Mr. Skeirett said that tho question eroso undor the Government Railways Superannuatien. Act, 1902 Donds was a railway guard,, and had been in tVio service for fourteen years. He wa-s a permanent hand from February, 1893, until April 7, 1899-six years and two months. Then no resigned, but returned to pornianont employment in the Department in Mnrch, 1900, after an absence of eleven months. He rejoined as s permanent hand, anterior to tho passing of the Act of 1902; since March, 1900, ho had been in permanent service. Tho question was whether the 1 period antecedent to his resignation and the ponod subsequent to his rcappomtment might bo added together for the purpose of computing Ins annual superannuation allowance. Tho circumstances would have been similar had Douds been reduced, or had his period of absence been only one day. Counsel's chipf difficulty did not ansa so much from the construction of the original Acts, as from the effect of the amendment of 1908, which was for tho benefit of the class of persons for whom he waa appealing ' In the' Railway Department "permanent" service was mero or less-of a temporary nature In this respect that Department differed from tho police force, and' the Civil Service'in general, for it included in the permanent list, guards, gaagors, and skilled and unskilled labourers. Obviously the exigencies of tho service frequently reifuired a reduction m some branches of tho permanent stuff. . % „ Mr. J-ustice Chapman: When tho hoavy traiEo season comes round, n number of men ero taken on. Those are mostly casuals? Mr. Skerrett; Yes, they are temporarily engaged, but the exigencies of tho llaihwiy Department are such that there is more broken, time than m any other branch of the Civil, Service. ' i Counsel continued that, until the- Amendment, Act of 1908 uas passed, there was no word m the statutes from which it could be inferred that only continuous service should count. The Government Railways Classification Act, 1896, and its amendments, "included broken service for'pkrposea of classification. There was no superannuation at that time/ and this was an indication that the Legislature contemplated that there i might be non-connnnous service Broken service counted for teachers, but in tho Civil Service it was expressly provided that berVico must be continuous. In regard ito other branches, such as the police force, i tho statute was silent on the point. 'Mr. Justico Williams. How did tho bioken ponods come about? Mr. SkerreH. Douds lesigned, for his own purposes, ' His position mhld have been the &amo if he hud been reduced. 'Mr. Justice Cooper: In tbe ease of a person who is reduced, say, from a guard to a portei Mr. Skerrett. I was' not referring to that, your Honour. I was using the word in a colloquial sense, and intended to indicate who is dismissed through a reduction in. tbe staff. Mr. 'Justice Edwards: Ho is extinguished, not reduced. , %• Justice Chapman: Is thore a-system by.iwhich "you can distinguish the permanent men and tho casual men ?.i i i>. inn, Mr. Skerrett: Yes, there is a Departmental system.' All'the permanontViands are classified and put' in a hat, and the casual - ■-,'---- "- Mr,, Justice Chapman mentioned that Distrtft Judge, Ward had resigned his position from time to time to take commiseions in ' another Court, and ho had a statute passed to protect his rights. , Mr Skorrett said that Sections 55 and 56 ot the Fublio Semee Classification and SuporannuatMn Amendment Act, 1908, w«re tho stumbling-block. The main question for fa ni Lo aß Seotion 17 of the Act of <■ 1902; and tno amending Act of 1908 were sufficient to show that tho Lerfs< laturo > contemplated non-oootinuoue employment. Hβ contended that Section 17 was not sufficient,to justify the inference that service waa to be continuous. Tho absonco o£ the word "continuous" qualifying "length of service and "years OS service" was significant, and the natural and prima facie meaning of tho words should be followed. i beotion 17 only applied te contributors who had left the seme* or beon suspend*d My reductions after the coming into forco of the Act of 1902 Hβ submitted that the section ought not to prejudice the claims of persons whose sorrice was anterior to tho passing of that Act. He was forced to admit that tie Act of 1008 was a declaration qf the intention of tho Legislature, but the tonrt Should read'ivith it the Act of 1902 Professor Salmond said that the granting of tho order asked by tho plaintiff would impose a oonsideraWe burden upon the Railway Department] Superannuation Fund. Tho amount waa \cstimated at £12,000 to £15,000 per annum, and 'tho fund was unable to bear this burden. The result of plaintiff's interpretation of the Acts being uphold would be the prompt insolvency of the trust fund. Any interpretation \/hich nould have that effect was prima facie inadmissible. There weio two grounds on which he contended that no such order should be mado: (1) In tho interpretation 6f the oris" 1 ?! , ' c 01 1 * 1* "10 ," servico was essential; , (2) If that wore not so, or if it w«ro doubtful, the amending Act of 1908 had rendered continuous service necessary now. Fictuio the occurronco of a strike under tho interpretation supported by plaintiff. All contributors would bo entitled to toko out the total amount of their contributions, and when tho stnke was ovor. they would bo taken on again compnlsorily. They would become oontiibutors again, and could claim precisely tbo same letirmg allowance as if the strike had not taken piaco. If broken serncp counted, tho scbomo of compulsory contribution provided by tho Legislature would be absolutely mefiectife. Tho contributor ttould get for nothing tnat for nhicli J;ho Legislature had provided he should pay annual reductions in his salary to obtain. Roadmg the Act as meaning "contmuons service only," the wholfi schomo was logical clear, simplo, and just Tho other scliemo would give- greater privileges to the dishonest and unfaithful servant than to tho man who gavo continuous and faithful service during many years. That waa an application of the parablo of the prodigal son which was not within the contemplation of tho Legislature. The assumption that broken service should count was mconoistent with tho provisions for joining provincial service to Government sorvico, and with the provisions for taking out tho whole of the contribution* as a matter of right when retired or dismissed. If tho Court held that the defendant contended rightly that brokon service *vas not to be counted, it was advisable that judgment ehould proceed on tho original Act, not merely on tho amending Act of 1908. Judgment was* reserved, and *he Court adjourned until this morning.