Amherst (Town) et al. v. Superintendent of Pensions (N.S.), (2007) 261 N.S.R.(2d) 205 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 28, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 261 N.S.R.(2d) 205 (SC);2007 NSSC 344

Amherst v. Superintendent (2007), 261 N.S.R.(2d) 205 (SC);

    835 A.P.R. 205

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. DE.033

In the matter of: An appeal pursuant to Section 89(9) of the Pension Benefits Act, R.S.N.S. 1989, c. 340

The Towns of Amherst, Bridgewater, New Glasgow, Springhill, Stellarton, Trenton, Truro, and Westville, and The Regional Municipality of Cape Breton (appellants) v. Nova Scotia (Superintendent of Pensions) (respondent)

(S.H. 267196; 2007 NSSC 344)

Indexed As: Amherst (Town) et al. v. Superintendent of Pensions (N.S.)

Nova Scotia Supreme Court

LeBlanc, J.

November 27, 2007.

Summary:

The Superintendent of Pensions ruled that the appellant towns were employers under the Pension Benefits Act and were therefore liable to make up an unfunded liability and solvency deficiency in the Pension Plan for the members of the Police Association of Nova Scotia (PANS). The towns had negotiated collective agreements with several PANS locals. Although the towns did not formally join the pension plan, the Superintendent determined that they were "employers" for the purposes of the Act. The towns appealed the Superintendent's decision and reconsideration under s. 89(9) of the Pension Benefits Act.

The Nova Scotia Supreme Court allowed the appeal. The Superintendent erred in concluding that the towns were obligated to make good the unfunded liabilities, either under the PANS Pension Plan or as a result of the operation of the Pension Benefits Act or the Municipal Government Act.

Evidence - Topic 3630

Documentary evidence - Private documents - Letters or documents written without prejudice - Admissibility in subsequent proceedings - The Superintendent of Pensions ruled that the appellant towns were employers under the Pension Benefits Act and were therefore liable to make up an unfunded liability and solvency deficiency in the Pension Plan for the members of the Police Association of Nova Scotia (PANS) - In doing so, the Superintendent held that a letter marked "without prejudice" from the solicitor for PANS to a clerk of one of the towns was privileged and inadmissible - The towns argued that the Superintendent erred in excluding the letter, which was relevant to the issue of whether the towns were employers under the Pension Plan - The Nova Scotia Supreme Court held that the letter met the threshold of relevance and ought to have been admitted - See paragraphs 81 to 87.

Master and Servant - Topic 1943.2

Remuneration - Pension or retirement benefits - Funding solvency deficiency - The Superintendent of Pensions ruled that the appellant towns were employers under the Pension Benefits Act and were therefore liable to make up an unfunded liability and solvency deficiency in the Pension Plan for the members of the Police Association of Nova Scotia (PANS) - The towns had negotiated collective agreements with several PANS locals - Although the towns did not formally join the pension plan, the Superintendent determined that they were "employers" for the purposes of the Act - The collective agreements did not state that the towns became members of the Pension Plan, nor did they explicitly require the towns to fund deficiencies that might arise - The collective agreements were the only agreements entered into by the towns that related to the Pension Plan - Section 45(2) of the Municipal Government Act required town councils to "establish a pension plan to provide pensions for full-time employees in such manner as the council shall, by policy, determine" - The Nova Scotia Supreme Court allowed the towns' appeal - The Superintendent erred in concluding that the towns were obligated to make good the unfunded liabilities, either under the PANS Pension Plan or as a result of the operation of the Pension Benefits Act or the Municipal Government Act - See paragraphs 1 to 24 and 56 to 88.

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - Judicial review - The Superintendent of Pensions ruled that the appellant towns were employers under the Pension Benefits Act and were therefore liable to make up a deficiency in the Pension Plan for the members of the Police Association of Nova Scotia (PANS) - The towns appealed the Superintendent's decision and reconsideration under s. 89(9) of the Pension Benefits Act - The Nova Scotia Supreme Court held that the standard of review in accordance with the "pragmatic and functional approach" was correctness - The court found that there was no privative clause, but there was a broad right of appeal - There was a limited expertise by the Superintendent, but it did not extend to questions of general law - The question before the Superintendent was one of law - See paragraphs 25 to 55.

Cases Noticed:

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48 (C.A.), refd to. [para. 25].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 26].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 26].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 26].

Spectrum Pension Plan (Administrator) v. Superintendent of Pensions (N.S.) et al. (1997), 161 N.S.R.(2d) 1; 477 A.P.R. 1 (C.A.), refd to. [para. 31].

Hawker Siddeley Canada Inc. v. Superintendent of Pensions (N.S.) et al. (1994), 129 N.S.R.(2d) 194; 362 A.P.R. 194 (C.A.), refd to. [para. 33].

Dustbane Enterprises Ltd. v. Superintendent of Financial Services (Ont.), 2001 CarswellOnt 673 (F.S. Trib.), [2002] O.J. No. 2943 (Sup. Ct.), refd to. [para. 35].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 46].

Schriver v. Securities Act (2006), 239 N.S.R.(2d) 306; 760 A.P.R. 306 (C.A.), refd to. [para. 50].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 53].

White et al. v. Halifax (Regional Municipality) Pension Committee (2007), 252 N.S.R.(2d) 39; 804 A.P.R. 39 (C.A.), refd to. [para. 57].

St. Marys Paper Inc. (Bankrupt), Re (1994), 73 O.A.C. 1; 116 D.L.R.(4th) 448 (C.A.), affd. (1996), 206 N.R. 81; 96 O.A.C. 321; 131 D.L.R.(4th) 606 (S.C.C.), dist. [para. 73].

Begg v. East Hants (Municipal District) and Director of Assessment (N.S.) (1986), 75 N.S.R.(2d) 431; 186 A.P.R. 431 (C.A.), refd to. [para. 82].

Université du Québec à Trois-Rivières v. Laroque - see Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières et al.

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières et al., [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171, refd to. [para. 85].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), pp. 5, 6 [para. 57].

Kaplan, Ari N., Pension Law, pp. 96, 97 [para. 61].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 810 to 813 [para. 82].

Counsel:

Ronald A. Pink, Q.C. and Bettina Quistgaard, for the appellants;

Peter J. Driscoll and Brian P. Casey, for the Trustees of the PANS Pension Plan;

David W. Fisher, for the Police Association of Nova Scotia;

Agnes E. MacNeil, for the respondent, Superintendent of Pensions.

This appeal was heard in Halifax, Nova Scotia, on May 28, 2007, by LeBlanc, J., of the Nova Scotia Supreme Court. The following decision was delivered by LeBlanc, J., on November 27, 2007.