Buschau et al. v. Rogers Communications Inc., (2012) 434 N.R. 44 (FCA)

• Judge: Dawson, Gauthier and Stratas, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 20, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 434 N.R. 44 (FCA);2012 FCA 197

Buschau v. Rogers Com. Inc. (2012), 434 N.R. 44 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. JL.014

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 (appellants) v. Rogers Communications Incorporated (respondent)

(A-290-11; 2012 FCA 197; 2012 CAF 197)

Indexed As: Buschau et al. v. Rogers Communications Inc.

Federal Court of Appeal

Dawson, Gauthier and Stratas, JJ.A.

June 28, 2012.

Summary:

This application arose in the context of a long-running dispute between Rogers Communications Inc. and a group of former employees over an actuarial surplus that had accumulated in a defined benefit employee pension plan. The employees applied for judicial review of a decision of a senior supervisor in the Private Pension Plans Division of the Office of the Superintendent of Financial Institutions Canada (Superintendent). The employees had requested that eight questions be answered regarding their dispute with Rogers. The Superintendent found that the bulk of the arguments submitted by the employees had already been decided in a 2007 decision by the Superintendent that had been judicially reviewed and appealed up to the Federal Court of Appeal and that the Superintendent did not have legislative authority to re-open or reconsider the matter.

The Federal Court, in a decision reported at 396 F.T.R. 11, dismissed the application. The employees appealed.

The Federal Court of Appeal dismissed the appeal.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - This application arose in the context of a long-running dispute between Rogers Communications Inc. and a group of former employees over an actuarial surplus that had accumulated in a defined benefit employee pension plan - The employees applied for judicial review of a decision of a senior supervisor in the Private Pension Plans Division of the Office of the Superintendent of Financial Institutions Canada (Superintendent) - The employees had requested that eight questions be answered regarding their dispute with Rogers - The Superintendent found that the bulk of the arguments submitted by the employees had already been decided in a 2007 decision by the Superintendent that had been judicially reviewed and appealed up to the Federal Court of Appeal - The Federal Court judge dismissed the application on the basis on issue estoppel - The employees appealed - They did not deny the applicability of the doctrine of issue estoppel - Rather, they submitted that there were special circumstances which should permit them to reopen the questions decided against them previously by the court - The special circumstances were said to be that: "1. The previous decision of this Court was made 'in ignorance of the binding S.C.C. decision in [Nolan et al. v. Superintendent of Financial Services (Ont.) et al.] and was therefore made per incuriam'; 2. This Court 'itself left considerable uncertainty as to what conclusions it reached regarding Rogers' right to "get at the surplus"'; and, 3. This Court 'appeared to take the unprecedented step of following the minority rather than the majority opinion in the S.C.C.'." - The Federal Court of Appeal dismissed the appeal - The judge's analysis was correct and there was no basis for the court's intervention.

Cases Noticed:

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; 2006 SCC 28, refd to. [para. 3].

Buschau et al. v. Canada (Attorney General) et al. (2008), 335 F.T.R. 131; 2008 FC 1023, revd. (2009), 393 N.R. 337; 2009 FCA 258, leave to appeal refused (2010), 406 N.R. 396, refd to. [para. 3].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 9].

Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331; 291 N.R. 61; 2002 FCA 218, refd to. [para. 15].

Counsel:

John N. Laxton, Q.C., and Robert D. Gibbens, for the appellants;

Stephen R. Schachter, Q.C., and Peter R. Senkpiel, for the respondent.

Solicitors of Record:

Laxton Gibbens & Company, Vancouver, British Columbia, for the appellants;

Nathanson, Schachter & Thompson LLP, Vancouver, British Columbia, for the respondent.

This appeal was heard at Vancouver, British Columbia, on June 20, 2012, by Dawson, Gauthier and Stratas, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Dawson, J.A., at Ottawa, Ontario, on June 28, 2012.