Buschau et al. v. Rogers Communications Inc., (2011) 396 F.T.R. 11 (FC)

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: June 29, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 396 F.T.R. 11 (FC);2011 FC 911

Buschau v. Rogers Com. Inc. (2011), 396 F.T.R. 11 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.084

Sandra Buschau, Sharon M. Parent, Albert Poy, David Allen, Eileen Anderson, Christine Ash, Federick 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 (applicants) v. Rogers Communications Incorporated (respondent)

(T-2006-10; 2011 FC 911)

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

Federal Court

Tremblay-Lamer, J.

July 21, 2011.

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 dismissed the application.

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 dismissed the application - The Superintendent's decision that questions one through four had already been answered was reasonable - To the extent that the fourth question raised a "new" question, the Superintendent provided a reasonable answer - Given the Superintendent's reasonable determination that the first four questions were the same questions as had previously been determined, the only reasonable course of action available was to find that the employees were estopped from raising the issues again - The public interest in finality was strong - In these circumstances, a determination that issue estoppel applied to prevent the employees from re-raising questions one to four was the only decision available to the Superintendent within the range of possible, acceptable outcomes defensible in respect of the facts and law - The court also rejected the employees' assertion that the law had changed since the 2007 decision - See paragraphs 50 to 93.

Master and Servant - Topic 1948.1

Remuneration - Pension or retirement benefits - Regulation - Superintendent - 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) - They asserted that the Superintendent erred in her determination as to legal costs - The employees submitted that since the British Columbia Supreme Court had indicated that pension plan members should seek redress primarily from the Superintendent, as opposed to the courts, then this had to mean that the Superintendent had the power to award costs to be paid out of pension funds - Otherwise, pension plan members in general would never be able to afford to hold their employers accountable - The Superintendent rejected the employees' request on the basis that neither the Pension Benefits Standards Act (PBSA), nor the terms of the plan itself, provided for the payment of member legal costs from the pension fund - The Federal Court dismissed the application - The Superintendent could only exercise the powers that were assigned to her by statute - Nowhere in the PBSA did it provide the Superintendent with authority to award costs out of a pension fund - In the absence of express legislative authority, the Superintendent was correct to conclude that she did not have jurisdiction to order that the employees' legal costs be paid out of the pension fund - See paragraphs 94 to 97.

Master and Servant - Topic 1948.1

Remuneration - Pension or retirement benefits - Regulation - Superintendent - 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 asserted that the Superintendent erred in her determination as to requested disclosure with respect to new plan members - The Superintendent pointed out that there was no requirement under the Pension Benefits Standards Act (PBSA) for an employer or administrator to provide members with access to the employment and pension data of potential new members - Furthermore, the employer and administrator were required to abide by the provisions of the Personal Information Protection and Electronic Documents Act - The Federal Court dismissed the application - The Superintendent's decision was reasonable - Section 28 of the PBSA sets out the members' "Rights to Information" - It also indicated that the plan members were entitled to certain information as set out in the Pension Benefits Standards Regulations - Neither s. 28 of the PBSA nor the associated Regulations mandated that Rogers was obligated to disclose the type of information that the employees were seeking - See paragraphs 98 to 102.

Cases Noticed:

Buschau et al. v. Rogers Cablesystems Inc. et al., [1998] B.C.T.C. Uned. D32; 82 A.C.W.S.(3d) 1014 (S.C.), refd to. [para. 15].

Buschau et al. v. Rogers Communications Inc. et al. (2001), 148 B.C.A.C. 263; 243 W.A.C. 263; 2001 BCCA 16, refd to. [para. 16].

Saunders v. Vautier (1841), Cr. & Ph. 240; 41 E.R. 482 (Ch. D.), refd to. [para. 17].

Buschau v. Rogers Communications Inc. [2002] B.C.T.C. 624; 2002 BCSC 624, refd to. [para. 19].

Buschau et al. v. Rogers Communications Inc. et al., [2003] B.C.T.C. 683; 2003 BCSC 683, refd to. [para. 19].

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. 20].

Buschau et al. v. Rogers Communications Inc. et al. (2004), 197 B.C.A.C. 279; 323 W.A.C. 279; 27 B.C.L.R.(4th) 17; 2004 BCCA 282, refd to. [para. 21].

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. 21].

Buschau et al. v. Canada (Attorney General) et al. (2008), 335 F.T.R. 131; 2008 FC 1023, refd to. [para. 30].

Buschau et al. v. Canada (Attorney General) et al. (2009), 393 N.R. 337; 2009 FCA 258, refd to. [para. 32].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2009), 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, consd. [para. 38].

Burke et al. v. Hudson's Bay Co. et al. (2010), 406 N.R. 109; 268 O.A.C. 1; 2010 SCC 34, consd. [para. 38].

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. 48].

Cousins et al. v. Canada (Attorney General) et al. (2008), 386 N.R. 223; 2008 FCA 226, refd to. [para. 49].

O'Brien v. Canada (Attorney General) (1993), 153 N.R. 313 (F.C.A.), refd to. [para. 77].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 77].

Bourdon et al. v. Stelco Inc., [2005] 3 S.C.R. 279; 341 N.R. 207; 2005 SCC 64, refd to. [para. 78].

Canada (Attorney General) v. Canadian Human Rights Commission et al. (1991), 43 F.T.R. 47 (T.D.), refd to. [para. 78].

Pillai v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 896; 2001 FCT 1417, refd to. [para. 78].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544, refd to. [para. 79].

Erdos v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 11; 2005 FCA 419, refd to. [para. 82].

Hockin et al. v. Bank of British Columbia et al. (1995), 57 B.C.A.C. 255; 94 W.A.C. 255; 123 D.L.R.(4th) 538; 3 B.C.L.R.(3d) 193 (C.A.), refd to. [para. 85].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2007), 225 O.A.C. 163; 2007 ONCA 416, refd to. [para. 96].

Counsel:

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

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

Solicitors of Record:

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

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

This application was heard at Vancouver, British Columbia, on June 29, 2011, by Tremblay-Lamer, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on July 21, 2011.