Mike Duffy, Pamela Wallin and Patrick Brazeau have been suspended without pay from the Senate over their expense claims, but they may have other avenues to collect money from the taxpayers of Canada.
Conservatives are scrambling to figure out whether the three, who remain senators even though they are no longer collecting a salary, are still accruing time toward their Senate pensions. Senators, like MPs, must have spent at least six years as a parliamentarian before they can apply for pension benefits. Mr. Duffy, Ms. Wallin and Mr. Brazeau were all appointed to the Red Chamber in January, 2009.
Treasury Board President Tony Clement told reporters on Wednesday that his Conservative caucus is seeking a legal opinion about the pension eligibility of the three disgraced senators.
Claude Carignan, the leader of the government in the Senate who moved the motion to suspend the senators, and then amended it to allow them to keep their medical, dental and life insurance benefits, said the intention was to suspend them without pay.
That includes the pension plan, said Mr. Carignan, and the Senate administration has been asked to take "every step that they need to apply the spirit and the letter of these three motions."
But, said Mr. Carignan, "it could have, perhaps, little technical problems."
Senators must make their own contributions to the pension plan – something that Mr. Duffy, Ms. Wallin and Mr. Brazeau presumably will not do while they are suspended. But the Senate administration could not say Wednesday whether that would disqualify them, or perhaps delay their eligibility.
James Cowan, the Liberal leader in the Senate, said "I would have thought [the Conservatives] would have figured this all out before they moved the motion."
Meanwhile, Mr. Duffy, who has been on medical leave since Oct. 17 and will undergo heart surgery later this week, may qualify for disability benefits that would pay him $94,640 annually until he is 75 years old – if he decides to retire now.
The Parliament of Canada Act says senators who resign because of a disability are entitled to collect 70 per cent of their annual salary, provided they are aged 65 or over. Mr. Duffy is 67. And labour lawyers say it is an open question whether Mr. Duffy would be eligible for those benefits.
The suspension motion says: "Senator Duffy shall not receive any other benefit from the Senate during the duration of his suspension." But, if Mr. Duffy resigned, he would no longer be suspended.
Typically, an employee who was disabled prior to being terminated would not be precluded from receiving disability benefits related to that disability, said Hugh Scher, the chair of the Ontario branch of the labour law section of the Canadian Bar Association.
"It remains unclear if he [Mr. Duffy] would be precluded from these benefits in light of the purpose of the motion to address health-related concerns, and the impact of the suspension on disability benefits," said Mr. Scher.
Kevin Banks, a law professor and the director of the Centre for Law in the Contemporary Workplace at Queen's University, says the clause in the motion that prevents Mr. Duffy from receiving benefits while under suspension may not apply after a resignation.
"Retirement benefits are usually considered accrued entitlements, so it is rare and often problematic for disciplinary measures to take them away," said Prof. Banks.
It probably does not matter that Mr. Duffy did not resign before he was suspended, said Mr. Banks. In the case of most suspensions, he said, the employment relationship is maintained and there is "a nominal salary" which they may not be collecting but is still in effect.
"I would suggest that, unless the Senate was quite explicit about dis-entitling him to retire with the disability benefit during the period of the suspension," said Mr. Banks, "that he would maintain that because he would have a nominal salary that would serve for the purposes of calculating the disability benefit."