Cousins et al. v. Canada (Attorney General) et al., (2008) 386 N.R. 223 (FCA)

JudgeNoël, Blais and Ryer, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateMay 20, 2008
JurisdictionCanada (Federal)
Citations(2008), 386 N.R. 223 (FCA);2008 FCA 226

Cousins v. Can. (A.G.) (2008), 386 N.R. 223 (FCA)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2009] N.R. TBEd. MR.036

Dana P. Cousins and Charles McNally (appellants (A-270-07; A-271-07)) and Dana P. Cousins, Donna M. Keith and Charles McNally (appellants (A-269-07); (respondents) (A-266-07; A-267-07)) v. Attorney General of Canada (respondent (A-270-07, A-271-07, A-269-07 and A-267-07); (appellant) (A-266-07)) and Marine Atlantic Inc. (respondent (A-270-07, A-271-07, A-269-07 and A-266-07); (appellant) (A-267-07))

(A-266-07; A-267-07; A-269-07; A-270-07; A-271-07; 2008 FCA 226; 2008 CAF 226)

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

Federal Court of Appeal

Noël, Blais and Ryer, JJ.A.

June 26, 2008.

Summary:

The applicants were employees of Marine Atlantic Inc. Their employment was terminated. The Office of the Superintendent of Financial Services informed them of which benefits they would be receiving from the pension plan and which benefits they would not be receiving, including a distribution of surplus funds. The applicants applied for judicial review. The principal issue was whether s. 29(12) of the Pension Benefits Standards Act (Can.) required that the proportional amount of surplus in a federally regulated pension fund existing at the time of a partial termination of the plan, be paid out. At issue was also whether the applicants had raised the issues within the time limit prescribed by s. 18.1(2) of the Federal Courts Act and, if not, whether they were entitled to an extension of time and whether the Superintendent had the power to reconsider its decisions made several years earlier.

The Federal Court, in a decision reported at 311 F.T.R. 138, determined the issues. The court held that two of the three applications for judicial review were out of time and refused to exercise its discretion to extend the time for filing the applications. The court found that s. 29(12) of the Pension Benefits Standards Act required the distribution of a proportional share of an existing surplus when a federally regulated pension plan was partially terminated. The Attorney General of Canada and Marine Atlantic appealed.

The Federal Court of Appeal allowed the appeals.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicants were employees of Marine Atlantic Inc. - Their employment was terminated - The Office of the Superintendent of Financial Services informed them of which benefits they would be receiving from the pension plan and which benefits they would not be receiving, including a distribution of surplus funds - The applicants applied for judicial review - The principal issue was whether s. 29(12) of the Pension Benefits Standards Act (Can.) required that the proportional amount of surplus in a federally regulated pension fund existing at the time of a partial termination of the plan, be paid out - The applications judge held that the interpretation of s. 29(12) was a question of law of which the appropriate standard of review was correctness - The Federal Court of Appeal held that the applications judge erred - Even if the court concluded that the Superintendent was engaged in deciding a pure question of law, the standard of reasonableness ought to apply - Even a pure question of law could be decided on the basis of reasonableness where the tribunal was interpreting its own statute and/or other factors of the standard of review analysis suggested that such deference was the legislative intention - The decisions of the Superintendent were discretionary - All of the factors under the standard of review analysis pointed to the decision of the Superintendent being given a high degree of deference - See paragraphs 17 to 26.

Master and Servant - Topic 1949

Remuneration - Pension or retirement benefits - Termination of plan - The applicants were employees of Marine Atlantic Inc. - Their employment was terminated - At issue was whether s. 29(12) of the Pension Benefits Standards Act (Can.) (PBSA) required that the proportional amount of surplus in a federally regulated pension fund existing at the time of a partial termination of the plan, be paid out - The Federal Court of Appeal held that  s. 29(12) of the PBSA equalized the rights of members on a partial and full termination - The PBSA defined a "surplus" to mean "the amount by which the assets of a pension plan exceed its liabilities (i.e. the pension benefits owed to members)" - Assets and liabilities could not be precisely determined until a plan was wound-up - As such, the existence of any actual or real surplus was determined at some point after the termination of a plan, and the distribution thereof would be the final step in the wind-up process - Accordingly, the federal scheme appeared to preclude a right to a distribution of surplus from being a right on termination subject to s. 29(12) of the PBSA - The suggestion by counsel for the applicants that while a right to a distribution of surplus crystallized after the time of termination, such right was somehow retroactive to the time of termination was without any merit - Consequently, the applicants did not have a right to a distribution of surplus on a partial termination of the Plan under s. 29(12) - See paragraphs 27 to 52.

Master and Servant - Topic 1959

Remuneration - Pension or retirement benefits - Distribution of surplus funds - [See Master and Servant - Topic 1949 ].

Cases Noticed:

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, dist. [para. 11].

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. 18].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 24].

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. 45].

Statutes Noticed:

Pension Benefits Standards Act, R.S.C. 1985 (2nd Supp.), c. 32, sect. 29(12) [para. 34].

Counsel:

Richard A. Kramer and Michael H. Morris, for Attorney General of Canada;

David A. Stamp and Jean-Marc Leclerc, for Marine Atlantic Inc.;

Ari N. Kaplan, Clio M. Godkewitsch and David Rosenfeld, for Dana P. Cousins et al.

Solicitors of Record:

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

Osler, Hoskin & Harcourt LLP, Toronto, Ontario, for Marine Atlantic Inc.;

Koskie Minsky LLP, Toronto, Ontario, for Dana P. Cousins et al.

These appeals were heard on May 20, 2008, at Toronto, Ontario, by Noël, Blais and Ryer, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Blais, J.A., on June 26, 2008.

To continue reading

Request your trial
10 practice notes
  • Table of Cases
    • Canada
    • Irwin Books Pension Law. Third Edition
    • 5 Agosto 2021
    ...148, 395, 549 Costigan v Canadian Paciic Railway Company, 2017 ABQB 294 ......................341 Cousins v Canada (Attorney General), 2008 FCA 226...............161, 198, 510, 546 Cowan v Scargill, (1984), [1985] 1 Ch D 270, [1984] 2 All ER 750 ...................................................
  • Regulation
    • Canada
    • Irwin Books Pension Law. Third Edition
    • 5 Agosto 2021
    ...Act , 2006.” 224 218 Kerry , above note 167 at para 27. 219 Monsanto , above note 111 at para 11; Cousins v Canada (Attorney General) , 2008 FCA 226 [ Cousins ]. 220 Kerry , above note 167 at para 28. 221 FSTA , s 2(5). 222 Ibid , s 2(2). Members of the Tribunal receive remuneration and rei......
  • McCann et al. v. Canada Mortgage and Housing Corp. et al., 2010 ONSC 65
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 26 Marzo 2010
    ...3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 66]. Cousins et al. v. Canada (Attorney General) et al. (2008), 386 N.R. 223; 2008 FCA 226, refd to. [para. Potter et al. v. Bank of Canada et al. (2007), 223 O.A.C. 166; 85 O.R.(3d) 10 (C.A.), refd to. [para. 81]. Mar......
  • Amherst (Town) et al. v. Superintendent of Pensions (N.S.), (2008) 268 N.S.R.(2d) 339 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • 28 Mayo 2008
    ...Employees Pension Committee - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al. Cousins v. Canada (Attorney General), 2008 FCA 226, refd to. [para. St. Marys Paper Inc. (Bankrupt), Re (1994), 73 O.A.C. 1 (C.A.), appeal dismissed as moot [1996] 1 S.C.R. 3; 206 N.R. 81; 9......
  • Request a trial to view additional results
7 cases
  • McCann et al. v. Canada Mortgage and Housing Corp. et al., 2010 ONSC 65
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 26 Marzo 2010
    ...3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 66]. Cousins et al. v. Canada (Attorney General) et al. (2008), 386 N.R. 223; 2008 FCA 226, refd to. [para. Potter et al. v. Bank of Canada et al. (2007), 223 O.A.C. 166; 85 O.R.(3d) 10 (C.A.), refd to. [para. 81]. Mar......
  • Amherst (Town) et al. v. Superintendent of Pensions (N.S.), (2008) 268 N.S.R.(2d) 339 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • 28 Mayo 2008
    ...Employees Pension Committee - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al. Cousins v. Canada (Attorney General), 2008 FCA 226, refd to. [para. St. Marys Paper Inc. (Bankrupt), Re (1994), 73 O.A.C. 1 (C.A.), appeal dismissed as moot [1996] 1 S.C.R. 3; 206 N.R. 81; 9......
  • Canada (Attorney General) v. Aéroport de Québec Inc., (2011) 384 F.T.R. 240 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 19 Enero 2011
    ...1 S.C.R. 706; 225 N.R. 41; 108 O.A.C. 161; 158 D.L.R.(4th) 193, consd. [para. 25]. Cousins et al. v. Canada (Attorney General) et al. (2008), 386 N.R. 223; 2008 FCA 226, refd to. [para. Buschau et al. v. Canada (Attorney General) et al. (2009), 393 N.R. 337; 2009 FCA 258, refd to. [para. 39......
  • Buschau et al. v. Canada (Attorney General) et al., (2009) 393 N.R. 337 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • 12 Mayo 2009
    ...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. 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.......
  • Request a trial to view additional results
3 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Pension Law. Third Edition
    • 5 Agosto 2021
    ...148, 395, 549 Costigan v Canadian Paciic Railway Company, 2017 ABQB 294 ......................341 Cousins v Canada (Attorney General), 2008 FCA 226...............161, 198, 510, 546 Cowan v Scargill, (1984), [1985] 1 Ch D 270, [1984] 2 All ER 750 ...................................................
  • Regulation
    • Canada
    • Irwin Books Pension Law. Third Edition
    • 5 Agosto 2021
    ...Act , 2006.” 224 218 Kerry , above note 167 at para 27. 219 Monsanto , above note 111 at para 11; Cousins v Canada (Attorney General) , 2008 FCA 226 [ Cousins ]. 220 Kerry , above note 167 at para 28. 221 FSTA , s 2(5). 222 Ibid , s 2(2). Members of the Tribunal receive remuneration and rei......
  • Wind up
    • Canada
    • Irwin Books Pension Law. Third Edition
    • 5 Agosto 2021
    ...the plan terminated, in accordance with PBSA , ss 29(1) & (2). 7 Ibid , s 2(1), “winding up.” 8 Cousins v Canada (Attorney General) , 2008 FCA 226 at para 39 [ Cousins ]. 9 Nolan v Kerry (Canada) Inc , 2009 SCC 39 at para 21 [ Kerry ]. Wind Up 511 wind-up date, and no new employees may join......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT