Baxter v. Superintendent, (2004) 192 O.A.C. 293 (DC)

• Judge: Cunningham, A.C.J., Kozak and Pitt, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 01, 2004
• Jurisdiction: Ontario
• Citations: (2004), 192 O.A.C. 293 (DC)

Baxter v. Superintendent (2004), 192 O.A.C. 293 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. DE.022

T. Stewart Baxter, Gary Hotrum, George Wilbur and June Williams, representatives of certain Members and Former Members of the Amended Pension Plan for Salaried Employees of National Steel Car Limited (appellants/applicants) v. Superintendent of Financial Services (respondent in appeal/respondent) and National Steel Car Limited (respondent in appeal/respondent) and Maurice Rozon, Chris Winterburn and Al Reichert of the United Steelworkers of America, Local 7135 (The "USWA") on their own behalf and on behalf of the USWA Members of the Amended Pension Plan for Hourly-Paid Employees of National Steel Car Limited (respondents in appeal/respondents)

(416/02)

Indexed As: Baxter et al. v. Superintendent of Financial Services (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J., Kozak and Pitt, JJ.

December 1, 2004.

Summary:

In 1952, an employer established a pension plan for salaried and hourly-paid employees. The employer, in its absolute discretion, could, inter alia, merge the plan with another pension plan. In 1965, the original pension plan was split into a Salaried Plan and an Hourly Plan. In 1972, the Salaried Plan was amended to permit reversion of any surplus on termination to the employer. In 2000, the employer wished to merge the two Plans and requested that the Superintendent of Finan­cial Services consent to a transfer of Salaried Plan assets to the Hourly Plan. The Superin­tendent consented. Former and cur­rent em­ployees requested a hearing under s. 89 of the Pension Benefits Act to review the Superintendent's decision. The Financial Services Tribunal held that it lacked jurisdic­tion (only employer could request review), but a majority of the Tribunal provisionally decided the matter in the employer's favour. The employees appealed. The issues were (1) whether the Tribunal had jurisdiction to review the Superintendent's decision; (2) the standard of review of the Tribunal's deci­sion; and (3) whether the transfer complied with s. 81(5) of the Act.

The Ontario Divisional Court dismissed the appeal. The Tribunal had jurisdiction to review the Superintendent's decision at the request of employees. The Tribunal's deci­sion was subject to review on the reasonable­ness simpliciter standard. The transfer com­plied with s. 81(5), as the Salaried Plan assets and "other benefits" were protected.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Ontario Divi­sional Court stated that, applying a func­tional and pragmatic approach, the standard of review of a decision of the Financial Services Tribunal, reviewing a decision of the Superintendent of Financial Services, was reasonableness simpliciter - The Tri­bunal had exclusive jurisdiction to deter­mine all matters of fact or law, had spe­cialized administrative expertise, the deci­sion being reviewed was at the heart or core of the Tribunal's regulatory mandate and the interpretation of the section at issue fell squarely within the Tribunal's expertise - See paragraphs 34 to 54.

Master and Servant - Topic 1946.1

Remuneration - Pension or retirement ben­efits - Merger of pension plans (incl. asset transfers) - In 1952, an employer estab­lished a pension plan for salaried and hourly-paid employees - The employer, in its absolute discretion, could, inter alia, merge the plan with another pension plan - In 1965, the original pension plan was split into a Salaried Plan and an Hourly Plan - In 1972, the Salaried Plan was amended to permit reversion of any surplus on termination to the employer - In 2000, the employer wished to merge the two Plans and requested that the Superintendent of Financial Services consent to a trans­fer of Salaried Plan assets to the Hourly Plan - At issue was whether the Superin­tendent, in consenting, erred in finding that the transfer complied with s. 81(5) of the Pension Benefits Act, which required a refusal of consent to a transfer of assets that did not protect the pension benefits or "any other benefits" of the members of the original plan - The salaried employees objected to the use of the Salaried Plan surplus being used to fund the Hourly Plan deficit, arguing that the transfer did not protect "any other benefits" - The Ontario Divisional Court held that this was a defined benefit plan - The employees' claim was in effect a claim to the actuar­ial surplus, which was not "any other benefit" under s. 81(5) - The employees had no right to any surplus and the Salar­ied Plan assets were expressly not subject to any trust at the relevant time (1972) - Accordingly, the transfer did not fail to protect pension benefits or "any other benefits" - See paragraphs 55 to 74.

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - Judicial review - An employer wished to merge two pension plans (one for salaried employees and one for hourly paid employees) and applied to the Super­intendent of Financial Services for consent to transfer Salaried Plan assets to the Hourly Plan - The Superintendent con­sented - Former and current employees requested a hearing under s. 89 of the Pension Benefits Act to review the Super­intendent's decision - The Financial Ser­vices Tribunal held that it lacked jurisdic­tion, because s. 89(4) of the Pension Bene­fits Act only permitted a review of a Su­perintendent's decision by the party whose request was denied - Since the employer made the request and it was consented to, there was no right of review by the em­ployees - The Ontario Divisional Court rejected this narrow interpretation of s. 89(4) - The court agreed that consent to an employer's request could reasonably be interpreted as a refusal to consent to an opposing party's request - The denial of the rights of one party (employees), while protecting the rights of the other party (employer), where both had substantial interests at stake, required much clearer and less ambiguous legislative language - There existed a right of review for both parties - See paragraphs 18 to 33.

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement ben­efits - Regulation - Superintendent or tribunal - Judicial review - [See Adminis­trative Law - Topic 9102 ].

Cases Noticed:

Huus et al. v. Superintendent of Pensions (Ont.) et al. (2000), 133 O.A.C. 375 (Div. Ct.), refd to. [para. 7].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al. (2004), 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 23].

Canadian Union of Public Employees et al. v. Ontario Hospital Association (1992), 91 D.L.R.(4th) 436 (Ont. Div. Ct.), refd to. [para. 28].

Maynard v. Superintendent of Pensions (Ont.) et al., [2000] O.A.C. Uned. 66; 23 C.C.P.B. 145 (Div. Ct.), refd to. [para. 30].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 35].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al. (2002), 166 O.A.C. 131; 62 O.R.(2d) 305 (C.A.), refd to. [para. 35].

GenCorp Canada Inc. v. Superintendent of Pensions (Ont.) et al. (1998), 114 O.A.C. 170; 158 D.L.R.(4th) 497 (C.A.), refd to. [para. 47].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 49].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 49].

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

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; 114 D.L.R.(4th) 385, refd to. [para. 53].

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

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81; 115 D.L.R.(4th) 631, refd to. [para. 60].

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

Heilig and Andrews et al. v. Dominion Securities Pitfield Ltd. et al. (1989), 33 O.A.C. 229; 67 O.R.(2d) 577 (C.A.), refd to. [para. 61].

Aegon Canada Inc. et al. v. ING Canada Inc. et al. (2003), 179 O.A.C. 196 (C.A.), dist. [para. 68].

Buschau et al. v. Rogers Cablesystems Inc. et al. (2001), 148 B.C.A.C. 263; 243 W.A.C. 263 (C.A.), refd to. [para. 72].

Saunders v. Vautier (1841), 4 Beav. 115; 49 E.R. 282, refd to. [para. 72].

Bower et al. v. Cominco Ltd. et al. (2003), 187 B.C.A.C. 287; 307 W.A.C. 287 (C.A.), refd to. [para. 72].

Howitt v. Howden Group Canada Ltd., [1999] O.J. No. 706 (C.A.), refd to. [para. 73].

Statutes Noticed:

Pension Benefits Act, R.S.O. 1990, c. P-8, sect. 81(5) [para. 55].

Counsel:

Warren S. Rapoport and Ari Kaplan, for the appellants;

Deborah McPhail and Mark Bailey, for the respondent, Superintendent of Financial Services;

Andrew K. Lokan and Craig Collins-Williams, for the respondent, National Steel Car Ltd.;

Dona Campbell, for the respondents, United Steelworkers of America, Local 7135 and USWA Members of the Hourly Paid Plan.

This appeal was heard on September 13-14, 2004, before Cunningham, A.C.J., Kozak and Pitt, JJ., of the Ontario Divisional Court.

The following judgment by the Court was released on December 1, 2004.