Askin et al. v. Ontario Hospital Association et al., (1991) 46 O.A.C. 278 (CA)

• Judge: Tarnopolsky, Carthy and Osborne, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Wednesday February 20, 1991
• Jurisdiction: Ontario
• Citations: (1991), 46 O.A.C. 278 (CA)

Askin v. Ont. Hospital (1991), 46 O.A.C. 278 (CA)

MLB headnote and full text

John A. Askin, Robert Hebdon, Bruce Land and Isabel Goodland, Frank Steele Errol Downey, Ed Charlebois, Robert Waddell and Ruth Letouzel on their own behalf and on behalf of all members and beneficiaries of the Hospitals of Ontario Pension Plan (applicants/appellants) v. Ontario Hospital Association, Joyce Bailey, Brian Birkness, Robert Browne, Jim Bruce, Paul Donoghue, Jim Holland, Peter Johnson, Jim Kitching, Duncan McAlpine, Roald Oss, Robert Seaby, Harry Simpson, Charles Vaillancourt, William J. Walker, W.G. Rogers, Darcie Beggs, Elma G. Heidemann, R.J. Hiscock, M. Alley, P.R. Carruthers, L.B. Doiron, S. Dreezer, H.S. Follon, Margrie Isabella Gunton, Robert Hawkes, Robert J. Jackson, H.S. Judges, J. Lindores, D.H. Martin, K. McCuaig, E. Menich, J.A. Radford, William M. Mercer Limited, Daniel McCaw and respondents named on schedule "A" attached to the Notice of Application (respondents)

(No. 546/88)

Indexed As: Askin et al. v. Ontario Hospital Association et al.

Ontario Court of Appeal

Tarnopolsky, Carthy and Osborne, JJ.A.

February 20, 1991.

Summary:

Employee beneficiaries of the Hospitals of Ontario Pension Plan alleged that their employer hospitals had effectively diverted approximately $240 million from the pension trust fund for their own benefit by reducing their annual contributions to the pension plan and thus eroding the surplus in the fund. The employee beneficiaries commenced an action for a declaration that the decisions taken by the pension committee leading to this situation be declared void.

The Ontario High Court of Justice, per Yates, J., dismissed the action. The employer beneficiaries appealed.

The Ontario Court of Appeal dismissed the appeal.

Master and Servant - Topic 1943

Remuneration - Pension benefits - Contribution by employer - Calculation of - Where surplus in fund - The Hospitals of Ontario Pension Plan was a nonstatutory pension plan unilaterally created by the Ontario Hospitals Association - The Pension Plan Committee allowed the hospitals involved to reduce their contribution to the fund because of a surplus, thus allegedly eroding the surplus - The Ontario Court of Appeal affirmed that the Committee acted properly.

Master and Servant - Topic 1943

Remuneration - Pension benefits - Contribution by employer - Calculation of - Where surplus in fund - Carthy, J.A., of the Ontario Court of Appeal stated that "the ratio I take from the [C.U.P.E. et al. v. Ontario] Hydro case [33 O.A.C. 63] is that, if a specific calculated contribution is mandated by the statute or by the plan itself, it is an indirect use of trust funds to apply surplus to meet that obligation. The intended ratio of the present case is that, where the specific method of calculation is not mandated, it is inoffensive and in accordance with statutory authorization and normal actuarial practice to consider a surplus as one factor in the calculation of the contribution" - See paragraph 33.

Cases Noticed:

Canadian Union of Public Employees - C.L.C. Ontario Hydro Employees, Local 1000 v. Ontario Hydro (1989), 33 O.A.C. 63; 68 O.R.(2d) 620, consd. [para. 24 et seq.].

Statutes Noticed:

Pension Benefits Act, R.S.O. 1980, c. 373, generally [para. 8 et seq.].

Pension Benefits Act Regulations, Reg. 746, sect. 2 [paras. 9, 24, 30, 53]; sect. 2(1) [para. 9]; sect. 2(2) [paras. 9, 32]; sect. 2(3)(a), sect. 2(3)(c) [para. 9]; sect. 5 [para. 48]; sect. 5(2)(a) [para. 49].

Power Corporation Act, R.S.O. 1980, c. 384, sect. 20(4) [paras. 24, 25, 54].

Authors and Works Noticed:

Actuary's Annual Certificates, and Guides, Opinions and Recommendations of the Canadian Institute of Actuaries, generally [para. 55].

Counsel:

R. Koskie, Q.C., M. Zigler and F. Campbell, for the applicants/appellants;

J. Brett Ledger, Ian J.F. McSweeney and Lawrence E. Ritchie, for the respondents William M. Mercer Limited and Daniel McCaw;

Chris G. Paliare and Martha Milczynski, for the respondent Darcie Beggs;

D.J.M. Brown, Q.C., and F.J. McLaughlin, for the respondents the Ontario Hospital Association et al.

This appeal was heard on November 27 to 30, 1990, before Tarnopolsky, Carthy and Osborne, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on February 20, 1991, including the following opinions:

Carthy, J.A. - See paragraphs 1 to 36;

Osborne, J.A. - See paragraphs 37 to 58;

Tarnopolsky, J.A. - See paragraph 59.