Amherst (Town) et al. v. Superintendent of Pensions (N.S.), (2008) 268 N.S.R.(2d) 339 (CA)

• Judge: MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 28, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 268 N.S.R.(2d) 339 (CA);2008 NSCA 74

Amherst v. Superintendent (2008), 268 N.S.R.(2d) 339 (CA);

    857 A.P.R. 339

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. AU.001

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

(CA 291842; 2008 NSCA 74)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A.

August 15, 2008.

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, in a decision reported at 261 N.S.R.(2d) 205; 835 A.P.R. 205, 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. The trustees of the PANS Pension Plan appealed.

The Nova Scotia Court of Appeal allowed the appeal and restored the Superintendent's order.

Master and Servant - Topic 1943.2

Remuneration - Pension or retirement benefits - Funding solvency deficiency - The Superintendent of Pensions ruled that various 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, arguing, inter alia, that they are not employers under the Plan, because they had never entered into an agreement with PANS to participate in the Plan - The Nova Scotia Supreme Court allowed the towns' appeal - The Nova Scotia Court of Appeal restored the Superintendent's order - The Superintendent's reasoning was intelligible, her conclusion was within the range of acceptable outcomes, and her decision was reasonable - See paragraphs 66 to 87.

Master and Servant - Topic 1943.2

Remuneration - Pension or retirement benefits - Funding solvency deficiency - The Superintendent of Pensions ruled that various 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) - 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 had argued that because PANS did not accommodate the towns' involvement in the administration and amendment of the Plan, the towns were not participating employers - The Superintendent concluded that this unresolved issue did not change the towns' obligations to contribute under the Act - The Nova Scotia Court of Appeal held that the Superintendent's conclusion was neither unreasonable nor incorrect - See paragraph 88.

Master and Servant - Topic 1943.2

Remuneration - Pension or retirement benefits - Funding solvency deficiency - The Superintendent of Pensions ruled that various 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 argued that they agreed to pay only the fixed contributions stated in the collective agreements, and should not have to pay additional deficiency amounts to which they did not agree - The Superintendent rejected this argument, stating that the solvency payments were required by the Act and the parties could not contract out of these minimum statutory standards - The Nova Scotia Court of Appeal held that the Superintendent's conclusion was both reasonable and correct - See paragraphs 89 to 99.

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - Judicial review - The Superintendent of Pensions ruled that the various 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 Act - The Nova Scotia Supreme Court held that the standard of review (SOR) in accordance with the "pragmatic and functional approach" was correctness - The Nova Scotia Court of Appeal reviewed the jurisprudence respecting the administrative SOR - The court held that straightforward matters of pure law that did not involve inextricably mixed issues of fact and law, discretion, policy or technical pension expertise, should be reviewed for correctness - Issues of fact, inextricably mixed fact and law, discretion, policy, or complex legal issues under the Act that engaged the Superintendent's pension expertise were governed by reasonableness - The reviewing judge here erred in law by applying an across the board SOR of correctness to all aspects of the Superintendent's ruling - See paragraphs 36 to 62.

Cases Noticed:

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 35].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290, refd to. [para. 35].

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. 37].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 38].

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. 44].

Imperial Oil Ltd. v. Superintendent of Pensions (N.S.) et al. (1995), 142 N.S.R.(2d) 26; 407 A.P.R. 26 (C.A.), refd to. [para. 45].

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. 46].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 47].

Pezim v. Superintendent of Brokers (B.C.) - see Pezim v. British Columbia Securities Commission et al.

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. 48].

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. 51].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2007), 225 O.A.C. 163; 282 D.L.R.(4th) 227; 2007 ONCA 416, leave to appeal granted (2008), 385 N.R.  380 (S.C.C.), refd to. [para. 52].

Kerry (Canada) Inc. v. DCA Employees Pension Committee - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Cousins v. Canada (Attorney General), 2008 FCA 226, refd to. [para. 53].

St. Marys Paper Inc. (Bankrupt), Re (1994), 73 O.A.C. 1 (C.A.), appeal dismissed as moot [1996] 1 S.C.R. 3; 206 N.R. 81; 96 O.A.C. 321, refd to. [para. 57].

Buschau et al. v. Rogers Communications Inc. et al., [2006] 1 S.C.R. 973; 349 N.R. 324; 226 B.C.A.C. 25; 373 W.A.C. 25, refd to. [para. 59].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 61].

Firestone Canada Inc. v. Pension Commission (Ont.) et al. (1990), 42 O.A.C. 176; 1 O.R.(3d) 122 (C.A.), refd to. [para. 91].

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81, refd to. [para. 91].

Schmidt v. Air Products Canada Ltd. - see Stearns Catalytic Pension Plans, Re.

Authors and Works Noticed:

Kaplan, Ari N., Pension Law (2006), pp. 96 to 98 [para. 94]; 129 to 132 [para. 91]; 384 [para. 57]; 418, 419 [para. 94].

Counsel:

Peter Driscoll and Hugh Wright, for the appellant;

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

Agnes E. MacNeil, for the respondent, Nova Scotia Superintendent of Pensions;

David W. Fisher, for the respondent, PANS.

This appeal was heard on May 28, 2008, in Halifax, N.S., by MacDonald, C.J.N.S., Roscoe and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on August 15, 2008.