Buschau et al. v. Canada (Attorney General) et al., (2009) 393 N.R. 337 (FCA)

• Judge: Noël, Nadon and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 12, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 393 N.R. 337 (FCA);2009 FCA 258

Buschau v. Can. (A.G.) (2009), 393 N.R. 337 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. OC.002

Rogers Communications Inc. (appellant) v. Sandra Buschau, Sharon M. Parent, Albert Poy, David Allen, Eileen Anderson, Christine Ash, Frederick Scott Atkinson, Jaspal Badyal, Mary Balfry, Carolyn Louise Barry, Raj Bhamber, Evelyn Bishop, Deborah Louise Bissonnette, George Boshko, Colleen Burke, Brian Carroll, Lynn Cassidy, Florence K. Colbeck, Peter Colistro, Ernest A. Cottle, Ken Dann, Donna de Freitas, Terry Dewell, Katrin Dolemeyer, Elizabeth Engel, Karen Engleson, George Fierheller, Joan Fisher, Gwen Ford, Don R. Fraser, Mabel Garwood, Cheryl Gervais, Rose Gibb, Roger Gilodo, Murray Gjernes, Daphne Goode, Karen L. Gould, Peter James Hadikin, Marian Heibloem-Reeves, Thomas Hobley, John Iannantuoni, Vincent A. Iannantuoni, Ron Inglis, Mehroon Janmohamed, Michael J. Jervis, Marlyn Kellner, Karen Kilba, Douglas James Kilgour, Yoshinori Koga, Martin Kosuljandic, Ursula M. Kreiger, Wing Lee, Robert Leslie, Thomas A. Lewthwaite, Holly Li, David Liddell, Rita Lim, Betty C. Lloyd, Rob Lowrie, Che-Chung Ma, Jennifer MacDonald, Robert John MacLeod, Sherry M. Madden, Tom Makortoff, Fatima Manji, Edward B. Mason, Glenn A. McFarlane, Onagh Metcalfe, Dorothy Mitchell, Shirley C.T. Mui, William Neal, Katherine Sheila Nimmo, Gloria Paiement, Lynda Pasacreta, Barbara Peake, Vera Piccini, Inez Pinkerton, Dave Podworny, Doug Pontifex, Victoria Prochaska, Frank Radelja, Gale Rauk, Ruth Roberts, Ann Louise Rodgers, Cifford James Roe, Pamela Mamon Roe, Delores Rose, Sabrina Roza-Pereira, Sandra Rybchinsky, Kenneth T. Salmond, Marie Schneider, Alexander C. Scott, Inderjeet Sharma, Hugh Donald Shiel, Michael Shirley, George Allen Short, Glenda Simoncioni, Norm Smallwood, Gilles A. St.Dennis, Geri Stephen, Grace Isobel Stone, Mari Tsang, Carmen Tuvera, Sheera Waisman, Margaret Watson, Gertrude Westlake, Robert E. White, Patricia Jane Whitehead, Aileen Wilson, Elaine Wirtz, Joe Wuychuk, Zlatka Young (respondents)

(A-453-08; 2009 FCA 258)

Indexed As: Buschau et al. v. Canada (Attorney General) et al.

Federal Court of Appeal

Noël, Nadon and Pelletier, JJ.A.

September 9, 2009.

Summary:

A pension plan was established in 1974, consisting of two documents: a trust agreement and the plan itself, a series of "rules" attached to the trust agreement. A surplus began to accumulate in 1983. From 1984 the employer took continuous uninterrupted "contribution holidays". In 1985 the employer withdrew over $968,000 from the surplus as a refund to itself. In 1992 the employer merged the pension plan with those of four other companies which amalgamated with the employer. In 2006, employees applied to the Office of the Superintendent of Financial Institutions to terminate the plan pursuant to the Pension Benefits Standards Act. The Superintendent refused the request. The employees applied for judicial review.

The Federal Court, in a decision reported at 335 F.T.R. 131, allowed the application and remitted the matter to the Superintendent for reconsideration. The employer appealed.

The Federal Court of Appeal allowed the appeal.

Master and Servant - Topic 1949

Remuneration - Pension or retirement benefits - Termination or revocation of plan - A pension plan was established in 1974, consisting of two documents: a trust agreement and the plan itself, a series of "rules" attached to the trust agreement - A surplus began to accumulate in 1983 - From 1984 the employer took continuous uninterrupted "contribution holidays" - In 1985 the employer withdrew over $968,000 from the surplus as a refund to itself - In 1992 the employer merged the pension plan with those of four other companies which amalgamated with the employer - In 2006, employees applied to the Office of the Superintendent of Financial Institutions to terminate the plan pursuant to s. 29(2) the Pension Benefits Standards Act - The Superintendent refused the request - The employees applied for judicial review - The application judge allowed the application - The employer appealed - The Federal Court of Appeal allowed the appeal - The key issue was the opening of the plan to new employees - The only possible basis for considering that the amendments to the plan were irrevocable and that the employer could not open the plan to new members was the view that the employees had acquired rights to the surplus by operation of the rule in Saunders v. Vautier (Ch. D. 1841) - Since Saunders v. Vautier did not apply to pension plans, there was nothing unreasonable about the Superintendent's decision to allow the employer to unwind its ill-considered amendments - There were still two employees who were accruing pension credits under the plan so that the plan did not fall within the definition of "termination" under the Act - Thus, the plan was viable - The Superintendent also found that the objects of the plan and of the Act were better served by using the actuarial surplus in the plan to fund pensions for members of the plan, including new members, than by providing a windfall to the current members of the plan at the cost of terminating a viable pension plan - These findings were reasonable - The Superintendent found that the amendments to the plan satisfied the objectives of the plan and of the Act - In those circumstances, it was difficult to see how winding up the plan and the trust would represent a more faithful adherence to the objectives of the Act than the measures approved by the Superintendent - Finally, the application of res judicata did not prevent the Superintendent from allowing the employer to revoke the merger of the plan into the consolidated plan and to reopen the plan to new employees - See paragraphs 44 to 65.

Cases Noticed:

Buschau et al. v. Rogers Communications Inc. et al. (2001), 148 B.C.A.C. 263; 243 W.A.C. 263; 195 D.L.R.(4th) 257; 2001 BCCA 16, revd. [2006] 1 S.C.R. 973; 349 N.R. 324; 226 B.C.A.C. 25; 373 W.A.C. 25; 2006 SCC 28, refd to. [para. 6].

Buschau et al. v. Rogers Communications Inc. et al. (2004), 193 B.C.A.C. 258; 316 W.A.C. 258; 2004 BCCA 80, refd to. [para. 8].

Saunders v. Vautier (1841), 4 Beav. 115; 49 E.R. 282 (Rolls Ct.), affd. (1841), Cr. & Phy. 240; 49 E.R. 282 (Ch. D.), refd to. [para. 8].

Cousins et al. v. Canada (Attorney General) et al. (2008), 386 N.R. 223; 2008 FCA 226, refd to. [para. 44].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 45].

British Columbia v. Henfrey Samson Belair Ltd., [1989] 2 S.C.R. 24; 97 N.R. 61, refd to. [para. 49].

Statutes Noticed:

Pension Benefits Standards Act, R.S.C. 1985 (2nd Supp.), c. 32, sect. 29(2) [para. 15].

Counsel:

Irwin G. Nathanson, Q.C., and Stephen R. Schachter, Q.C., for the appellant;

John N. Laxton, Q.C., and Robert D. Gibbens, for the respondent, Sandra Buschau and others;

Wendy Divoky, for the respondent, Attorney General of Canada.

Solicitors of Record:

Nathanson, Schachter & Thompson LLP, Vancouver, B.C., for the appellant;

Laxton Gibbens & Company, Vancouver, B.C., for the respondent, Sandra Buschau and others;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada.

This appeal was heard on May 12, 2009, at Vancouver, British Columbia, by Noël, Nadon and Pelletier, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Pelletier, J.A., at Ottawa, Ontario, on September 9, 2009.