IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20050923
Docket: S041533
Registry: Vancouver

Between:

Judith Emma Robinson and Stephen Kenneth Sleigh

Plaintiffs

And

The British Columbia Pension Corporation

Defendants

Before: The Honourable Mr. Justice Ehrcke

Reasons for Judgment

[1]                George William Robinson was married to Judith Emma Robinson (the “plaintiff”) for 28 years, during which time he was accruing pension benefits.  He and the plaintiff divorced in August 2001.

[2]                Mr. Robinson retired in November 2003.  He elected to take a single life pension guaranteed for 15 years.  On December 5, 2003, he married the defendant Judith Lee Robinson.  Mr.  Robinson died less than a month later, on January 2, 2004.  The defendant BC Pension Corporation then began making monthly pension payments to the defendant Judith Lee Robinson, and has continued to make those payments to her.

[3]                The plaintiff Judith Emma Robinson commenced an action against the defendant Judith Lee Robinson and the BC Pension Corporation, claiming, among other things, that she is entitled to the pension benefits.  At issue in that lawsuit will be the validity of a separation agreement which purports to show that the plaintiff relinquished all rights to Mr. Robinson’s pension.  The plaintiff claims that the document is not genuine.

[4]                The defendant BC Pension Corporation has brought an interpleader application pursuant to Rule 48.  Its position is that the dispute is between the first Mrs. Robinson and the second Mrs. Robinson, and it should not be put to the expense of appearing at trial as a defendant.

[5]                The plaintiff sought to have the application adjourned to the first day of trial, which is set to commence October 3, 2005.  That is only one week from now.  I heard full submissions from the parties both on the question of the adjournment and on the substantive issue of whether the interpleader application should be granted.  I have decided not to grant the adjournment.  The parties will be in no better position on October 3, 2005 to determine this application, and indeed, it is better for all involved to know now, rather than on the first day of trial, whether the BC Pension Corporation remains as a defendant.

[6]                The merits of the interpleader application were vigorously argued by the BC Pension Corporation, who submitted that it will be of no benefit to anyone for them to remain involved as a defendant, and by the plaintiff, who submitted that she could be seriously prejudiced if the trial were to proceed without the Corporation as a defendant.  The defendant Judith Lee Robinson took no position on the interpleader application.

[7]                On this application the BC Pension Corporation seeks an order in the following terms:

1.         All further steps against the British Columbia Pension Corporation and the Municipal Pension Board of Trustees in  this action are hereby stayed;

2.         The rights of the plaintiff, Judith Emma Robinson and the defendant Judith Leigh (Lee Alexander) Robinson, to the pension benefit of George William Robinson (Deceased) (the “Pension Entitlement”) be determined at trial;

3.         Any liability of the British Columbia Pension Corporation and the Municipal Pension Board of Trustees is extinguished with respect to the Pension Entitlement upon payment of the Pension Entitlement as directed by the Court;

4.         If any party claiming an interest in the Pension Entitlement fails to attend the hearing of this motion, or attends and fails or refuses to comply with an order made in the proceeding, that party and all persons claiming through or under that party are forever barred from prosecuting a claim for the Pension Entitlement against the British Columbia Pension Corporation or the Municipal Pension Board of Trustees; and

5.         The plaintiffs shall pay to the British Columbia Pension Corporation its costs of this application, assessed as special costs.

[8]                The defendant BC Pension Corporation relies on the affidavits of Colin Hanson, who is the Manager of Legal Services & Corporate Secretary of the Corporation.

[9]                On an interpleader application, the applicant must establish three things, as set out in Rule 48(7):

(a)        The applicant must claim no beneficial interest in the property in dispute, other than for costs, fees or expenses;

(b)        The applicant must not collude with any of the claimants of the property;

(c)        The applicant must be willing to deliver the property in dispute to the Court or to dispose of it as the Court may direct.

[10]            The Corporation argues, based on Mr. Hanson’s affidavits, that all three requirements have been established.  The Corporation says that it has no interest in the property, that it has not colluded with either party, and that although it cannot pay the property into Court because of various statutory obligations, it will abide by a determination of the Court as to pension entitlement.

[11]            The plaintiff submits that the requirements for interpleader have not been met.  She argues that the Corporation has colluded with the defendant Judith Lee Robinson by supporting the defendant Robinson’s initial position that this case should be determined by a summary trial under Rule 18A.  Further, the plaintiff argues that the Corporation has colluded with the defendant Robinson by continuing to make pension payments to her of over $1,000 per month throughout the time that this litigation has been pending.  The plaintiff says that these payments provide the defendant Robinson with cash to pay her legal fees to support the position she takes in this litigation.

[12]            There is merit in the plaintiff’s submission.  It is difficult to see how the Corporation can claim the role of a completely neutral stakeholder, when it continues to pay out a part of the property which is the subject matter of the lawsuit to one of the claimants and not to the other.

[13]            However, I prefer to base my decision on a different consideration.  In my view, the Corporation has not established that it has satisfied the third requirement set out in Rule 48(7)(c), namely, the requirement of delivering the disputed property to Court, or being willing to dispose of it as the Court may direct.

[14]            The Corporation has not agreed that it will inevitably pay the plaintiff the full amount she is claiming if the plaintiff is successful in this lawsuit.

[15]            The position of the Corporation is set out in para. 29 of its outline, where it states:

29.       Moreover, if, at trial, the court were to determine that Judith Emma was entitled to all or part of the Pension Entitlement, the Corporation would pay that portion from the date of that determination, as directed by the court.

[16]            The critical words here are “from the date of that determination”.  The effect of those words is that the Corporation is not willing to pay the plaintiff any portion of the pension that it has already paid out to the defendant Robinson.  This is potentially less than the full amount that the plaintiff might recover from the Corporation if the Corporation retains its status as a defendant in this lawsuit.

[17]            The Corporation does not agree with that analysis.  It argues that the only way the plaintiff could recover amounts already paid out to the defendant Robinson would be to seek damages from the Corporation for negligence, and that has not been pleaded by the plaintiff in her statement of claim.  The relevant portion of the statement of claim frames the relief sought against the Corporation in this way at para. 63(f):

(f)         The Plaintiff Robinson seeks an Order against the BC Pension Corporation reinstating her entitlement and enforcing her rights to compensation pursuant to The Public Sector Pension Plans Act and any other such legislation which may apply to her circumstances.

[18]            The Corporation advances various arguments why the amount which the plaintiff might recover from it as a defendant could not exceed the amount of the pension remaining at the time of the trial determination, but in my view, those arguments are not so obviously conclusive that they should be determined in its favour on this application.  Rather, they are arguments to be made and decided at trial, by the trial judge, in the context of all the issues and all the evidence at trial.  As the plaintiff has put it, there is a case to be tried against the Corporation, and the issues raised in the pleadings should not be litigated by slices.

[19]            Perhaps another way of expressing the same point is this.  At common law, and as well under the requirements of Rule 48, an applicant for interpeader relief must demonstrate a willingness to bring the entire amount of the property in question into Court, and not just some portion of the property in dispute between the two claimants.

[20]            This requirement is summarized in Halsbury’s Laws of England (4th Ed.) Vol. 25 at para. 1020:

It is generally necessary that a stakeholder applicant should be able to bring the whole amount into court, and it is no excuse that, before the adverse claim was made, the applicant paid a part of the sum claimed to the claimant.

Halsbury’s supports this proposition by a reference to the case of Allen v. Gilby (1834), 3 Dowl 143.  The head note in that case accurately states the principle that was applied by the Court:

If a part of a sum claimed by the parties has been paid to one of them before adverse claim made, the adverse claimant has a right to have the whole sum he claims paid into Court on the holder applying for relief under the Interpleader Act.

[21]            In this case, the Corporation has not demonstrated its willingness to pay the whole sum in dispute between the two claimants into Court.  Just as in the case of Allen v. Gilby, it has paid some of the amount in dispute to one of the claimants, namely to the defendant Robinson, by making monthly pension payments to her while this litigation has been pending.  The Corporation has not agreed to make the plaintiff whole if, at the end of the trial, it is determined that the plaintiff should have been entitled to the entire pension benefit from the time of Mr. Robinson’s death.

[22]            Accordingly, the Corporation’s application for interpleader is refused.

[23]            The plaintiff Robinson shall have her costs of this application as costs in the cause pursuant to Rule 57(12)(b).

“W.F. Ehrcke, J.”
The Honourable Mr. Justice W. F. Ehrcke