Buschau et al. v. Rogers Communications Inc. et al., 2004 BCCA 80

• Judge: Newbury, Low and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 20, 2004
• Jurisdiction: British Columbia
• Citations: 2004 BCCA 80;(2004), 193 B.C.A.C. 258 (CA)

Buschau v. Rogers Com. Inc. (2004), 193 B.C.A.C. 258 (CA);

    316 W.A.C. 258

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. MR.010

In The Matter Of a pension plan established by Premier Cablesystems Ltd. in February 1974; and ss. 30, 31, 36 and 39 of the Trustee Act, R.S.B.C. 1996, c. 464, s. 8 of the Pension Benefits Standards Act, R.S.C. 1985, c. 32, and s. 1 of the Trust and Settlement Variation Act, R.S.B.C. 1996, c. 463.

Sandra Buschau, Sharon M. Parent, Albert Poy [name of other respondents/petitioners omitted] (respondents/petitioners) v. Rogers Communications Incorporated (appellant/respondent) and National Trust Company (respondent)

(CA030787; 2004 BCCA 80)

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

British Columbia Court of Appeal

Newbury, Low and Thackray, JJ.A.

February 20, 2004.

Summary:

A non-contributory "defined benefit" employment 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. When the plan was declared "closed" in 1984, the trust had an actuarial surplus of several million dollars. The petitioners were former employees of the original settlor of the trust (Premier) and were all members of the pension plan and beneficiaries of the trust. The petitioners sought an order that, inter alia, the plan be terminated and the trust funds distributed to the members. The petition stated that 20 some individuals who were identified as members of the plan could not be located. The current settlor of the trust (Rogers) was opposed to the termina­tion.

The British Columbia Supreme Court, in a decision reported at [2002] B.C.T.C. 624, assumed that the rule in Saunders v. Vautier applied to modern pension trusts, and to the particular plan in question. The court held that it had jurisdiction to consent to termina­tion of the trust on behalf of those desig­nated beneficiaries who had not been located by the petitioners.

The British Columbia Supreme Court, in its second set of reasons reported at [2003] B.C.T.C. 683, allowed the petition and granted the orders sought. Rogers appealed.

The British Columbia Court of Appeal concluded that the trial judge lacked jurisdiction to consent on behalf of the missing members and erred in allowing the petition. Although the court would normally have allowed the appeal and dismissed the petition, it gave the parties an opportunity to make submissions on their options in light of the court's reasons. The court set out the procedure to be followed. Failing that procedure being followed, an order allowing the appeal and dismissing the petition was to be entered after three months.

Master and Servant - Topic 1949

Remuneration - Pension or retirement benefits - Termination of plan - [See Trusts - Topic 8441 , Trusts - Topic 8442 , Trusts - Topic 8445 and Trusts Topic 8450 ].

Trusts - Topic 8441

Termination of trusts - By request of beneficiary - General - The British Colum­bia­ Court of Appeal held that the rule in Saunders v. Vautier may be invoked by all the beneficiaries of a "mod­ern pension trust" provided the pre-condi­tions of the rule were met, i.e., that the termination was agreed to by those persons who together were entitled to all the rights of beneficial ownership, actual and poss­ible, in the trust property, and those per­sons were sui juris - See paragraphs 11, 41 to 55.

Trusts - Topic 8442

Termination of trusts - By request of beneficiary - Jurisdiction of court - A non-contributory "defined benefit" em­ployment pension plan was established in 1974 - When the plan "closed" in 1984, the trust had a large actuarial surplus - The benefi­ciaries sought to terminate the trust - Some identified members of the plan could not be located - The British Columbia Court of Appeal held that the court lacked jurisdic­tion to consent to a termination or other arrangement on behalf of those "missing" designated beneficiaries who were "sui juris" and who had an "interest" in the trust, whether vested or contingent - The Trust and Settlement Variation Act, s. 1(b), did not confer such a jurisdiction - See paragraphs 11, 71 to 85, 99.

Trusts - Topic 8445

Termination of trusts - By request of beneficiary - On agreement of all bene­ficiaries - A non-contributory "defined benefit" employment pension plan was established in 1974 - When the plan was "closed" in 1984, the trust had a large actuarial surplus - The beneficiaries sought to terminate the trust pursuant to the rule in Saunders v. Vautier, and to receive the trust estate, including the sur­plus, abso­lutely - The employer/settlor opposed the petition - The British Colum­bia Court of Appeal held that the consents of all mem­bers and designated benefici­aries under the trust were necessary for the rule to be invoked - Otherwise, benefici­aries repre­senting "all" the rights of bene­ficial owner­ship, actual and potential, could not be said to have agreed to the termination - See paragraphs 11, 64, 99.

Trusts - Topic 8450

Termination of trusts - By request of beneficiary - Grounds for refusal - Oppo­sition of settlor - A non-contributory "defined benefit" employment pension plan was established in 1974 - When the plan was "closed" in 1984, the trust had a large actuarial surplus - The beneficiaries sought to terminate the trust pursuant to the rule in Saunders v. Vautier, and to receive the trust estate, including the sur­plus, abso­lutely - The employer/settlor opposed the petition - The British Colum­bia Court of Appeal held that the employer did not have rights analogous to rights of beneficial ownership - Therefore, its op­position did not preclude operation of the rule - Nor did the fact that it had certain powers specified in the trust documents, which might also be described as contrac­tual rights, preclude operation of the rule - See paragraphs 11, 56 to 63.

Cases Noticed:

Saunders v. Vautier (1841), 4 Beav. 115; 49 E.R. 282, affd. (1841), Cr. & Ph. 240; 41 E.R. 482 (Ch. D.), appld. [para. 2].

Smith, Re, [1928] 1 Ch. 915, refd to. [para. 3].

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

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81, refd to. [para. 6].

Buschau et al. v. Rogers Cablesystems Inc. et al. (2001), 148 B.C.A.C. 263; 243 W.A.C. 263; 83 B.C.L.R.(3d) 261; 2001 BCCA 16, leave to appeal refused (2001), 275 N.R. 389; 160 B.C.A.C. 320; 261 W.A.C. 320 (S.C.C.), refd to. [para. 6].

Imperial Group Pension Trust Ltd. v. Imperial Tobacco Ltd., [1991] 1 W.L.R. 589 (Ch. D.), refd to. [para. 6].

Sandwell & Co. v. Royal Trust Corp. of Canada (1985), 17 D.L.R.(4th) 337 (B.C.C.A.), not folld. [para. 10].

Knocker v. Youle, [1986] 2 All E.R. 914 (Ch. D.), apprvd. [para. 11].

Bentall Corp. v. Canada Trust Co. (1996), 26 B.C.L.R.(3d) 181 (S.C.), disagreed with [para. 33].

Gosling v. Gosling (1859), 70 E.R. 423, refd to. [para. 45].

Goulding v. James, [1997] 2 All E.R. 239 (C.A.), refd to. [para. 46].

Russ v. Public Trustee (B.C.) et al. (1994), 43 B.C.A.C. 209; 69 W.A.C. 209; 89 B.C.L.R.(2d) 35 (C.A.), refd to. [para. 46].

Knox United Church v. Royal Trust Corp. of Canada (1996), 110 Man.R.(2d) 81; 118 W.A.C. 81; 12 E.T.R.(2d) 40 (C.A.), refd to. [para. 46].

Steed's Will Trusts, Re; Sandford v. Ste­venson, [1960] 1 All E.R. 487 (C.A.), refd to. [para. 46].

Irving, Re (1975), 66 D.L.R.(3d) 387 (Ont. H.C.), refd to. [para. 46].

Lock v. Westpac Banking Corp. (1991), 25 N.S.W.L.R. 593 (S.C.), refd to. [para. 48].

Bathgate v. National Hockey League Pen­sion Society (1992), 11 O.R.(3d) 449 (Gen. Div.), refd to. [para. 52].

Bower et al. v. Cominco Ltd. et al., [2004] 1 W.W.R. 25; 187 B.C.A.C. 287; 307 W.A.C. 287; 2003 BCCA 537, refd to. [para. 59].

White, Re, [1901] 1 Ch. 570, refd to. [para. 61].

Davidson v. Kimpton (1881), 18 Ch. D. 213, refd to. [para. 61].

Widdows' Trust, Re (1871), L.R. 2 Eq. 408, refd to. [para. 61].

Whichelow, Re, [1954] 1 W.L.R. 5 (Ch. D.), refd to. [para. 61].

Chapman v. Chapman, [1954] A.C. 429 (H.L.), refd to. [para. 66].

Holmden's Settlement Trusts, Re; Inland Revenue Commissioners v. Holmden, [1968] 1 All E.R. 148 (H.L.), refd to. [para. 69].

Holt's Settlement, Re; Wilson v. Holt, [1968] 1 All E.R. 470 (Ch. D.), refd to. [para. 69].

Ball's Settlement, Re, [1968] 2 All E.R. 438 (Ch. D.), refd to. [para. 69].

Spens v. Inland Revenue Commissioners; Hunt v. Inland Revenue Commissioners, [1970] 3 All E.R. 294 (Ch. D.), refd to. [para. 69].

Suffert's Settlement, Re, [1960] 3 All E.R. 561 (Ch. D.), refd to. [para. 70].

McGavin et al. v. National Trust Co. et al. (1998), 106 B.C.A.C. 199; 172 W.A.C. 199; 49 B.C.L.R.(3d) 253 (C.A.), refd to. [para. 70].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63, refd to. [para. 75].

Moncrieff's Settlement Trusts, Re, [1962] 1 W.L.R. 1344 (Ch. D.), refd to. [para. 80].

Midleton's Will Trusts, Re, [1969] 1 Ch. 600, refd to. [para. 81].

Dursley (Lord) v. Fitzhardinge Berkeley (1801), 6 Ves. Rep. 251 (Ch. D.), refd to. [para. 81].

Parsons, Re (1890), 45 Ch. D. 51, refd to. [para. 81].

Geraci, Re (1971), 14 C.B.R.(N.S.) 253 (Ont. C.A.), consd. [para. 84].

Versatile Pacific Shipyards v. Royal Trust Corp. of Canada (1991), 84 D.L.R.(4th) 761 (B.C.S.C.), consd. [para. 91].

Statutes Noticed:

Trust and Settlement Variation Act, R.S.B.C. 1996, c. 463, sect. 1(a), sect. 1(b) [para. 65].

Authors and Works Noticed:

Bernstein, William S., The Rule in Saun­ders v. Vautier and its Proposed Repeal (1986), 7 E.T.Q. 251, p. 258 [para. 42].

Cullity, Maurice, Personal Liability of Trustees and Rights of Indemnification (1996), 16 E.T.J. 115, pp. 124, 125 [para. 49].

Dickson, Mary Louise, Pension Surplus in Youdan, T.G., Equity, Fiduciaries and Trusts (1989), pp. 131, 132 [para. 48]; 134, 135 [para. 51]; 148 [para. 58].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Farquhar, K.B., Recent Themes in the Variation of Trusts (2001), 20 E.T.P.J. 181, pp. 186 to 191 [para. 46].

Gillese, E., Contribution Holidays (1995), 15 E.S.T. & T.R.J. 136, pp. 142 to 147 [para. 58].

Gillese, E., Pension Plans and the Law of Trusts (1996), 75 Can. Bar Rev. 221, pp. 231 [para. 51]; 232 [para. 47]; 248 [para. 70].

Halsbury's Laws of England (1995) (4th Ed. - Reissue), vol. 48, para. 627 [para. 3].

Lewin on Trusts (17th Ed. 2000), pp. 1437, 1438, 1439 [para. 69]; para. 3-35 [para. 82].

Luxton, Peter, An Unascertainable Problem in Variation of Trusts (1986), 136 New L.J. 1057, generally [para. 32].

McClean, A.J., Variation of Trusts in England and Canada (1965), 43 Can. Bar Rev. 181, pp. 236 to 241 [para. 46]; 248 [para. 74].

Ontario, Law Reform Commission, Report on the Law of Trusts (1984), pp. 390 [para. 70]; 409 [para. 68].

Pearce, R.A., and Stevens, J., The Law of Trusts and Equitable Obligations (1998), p. 431 [para. 69].

Riddall, J.G., Does It or Doesn't It - Con­tingent Interests and the Variation of Trusts Act 1958 (1987), 51 Conv. and Property Lawyer 144, generally [para. 32].

Riddall, J.G., The Law of Trusts (5th Ed. 1996), pp. 360 to 363 [para. 83].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 163 [para. 75].

Underhill, Arthur, and Hayton, David J., Law Relating to Trusts and Trustees (15th Ed. 1995), pp. 475 [para. 69]; 710 to 716 [para. 2]; 711 [paras. 4, 43]; 715 [para. 61].

United Kingdom, Law Reform Committee, Court's Power to Sanction Variation of Trust (6th Report) (1957), Cmnd. 310, para. 18 [para. 66].

Waters, Donovan, Law of Trusts in Canada (2nd Ed. 1984), pp. 291 [para. 43]; 292 [para. 70]; 962 [para. 41]; 963 [paras. 2, 41]; 964 [para. 2]; 1070 [para. 76]; 1071 [paras. 32, 76].

Youdan, T.G., Equity, Fiduciaries and Trusts (1989), pp. 131, 132 [para. 47].

Counsel:

I.G. Nathanson, Q.C., and S.R. Schachter, Q.C., for the appellant;

J.N. Laxton, Q.C., and R.D. Gibbens, for the respondents.

This appeal was heard at Vancouver, British Columbia, on December 4-5, 2003, by Newbury, Low and Thackray, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Newbury, J.A., on February 20, 2004.