GenCorp Canada Inc. v. Superintendent of Pensions (Ont.) et al., (1995) 87 O.A.C. 241 (DC)

• Judge: Southey, O'Brien and Corbett, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: December 07, 1995
• Jurisdiction: Ontario
• Citations: (1995), 87 O.A.C. 241 (DC)

GenCorp Can. Inc. v. Supt. of Pensions (1995), 87 O.A.C. 241 (DC)

MLB headnote and full text

GenCorp Canada Inc. (applicant/appellant in appeal) v. The Superintendent of Pensions for Ontario, Local 536 of the United Rubber, Cork, Linoleum & Plastic Workers of America acting on behalf of members and former members of the Consolidated GenCorp Canada Inc. Hourly Pension Plan (The "Hourly Plan") and members and former members of the Consolidated GenCorp Canada Inc. Salaried Pension Plan (The "Salaried Plan") listed in Schedule "A" (respondents/respondents in appeal) and Westinghouse Canada Inc. (intervenor) and National Automobile, Aerospace and Transportation Workers Union of Canada (CAW-Canada) (intervenor)

(644/94)

Indexed As: GenCorp Canada Inc. v. Superintendent of Pensions (Ont.) et al.

Ontario Court of Justice

General Division

Divisional Court

Southey, O'Brien and Corbett, JJ.

December 7, 1995.

Summary:

In 1987, GenCorp sold its plants in Wel­land and Barrie to General Tire. GenCorp's employees transferred and became employees of General Tire. However, Gen­Corp did not transfer the assets and liabil­ities of its pension plans of which the trans­ferred employees were members. The trans­ferred employees remained entitled to the benefits which had accrued to the date of sale. Gen­eral Tire established new pension plans which the transferred employees joined. Section 29(3) of the Pension Ben­efits Act (1980) provided that the employees' service would be deemed to include service with both vendor and purchaser for the purpose of determining eligibility for bene­fits under the various plans. In 1991, Gen­eral Tire closed the Ba­rrie plant and partially wound up its pension plans. In 1992, the Superintendent of Pen­sions issued proposals ordering a partial windup of Gen­Corp's pension plans pursu­ant to s. 69 of the Pen­sion Benefits Act (1990). That order would bring into play early re­tirement benefits or "Grow In" bene­fits for the trans­ferring employees under s. 74 of the Act. Under that section, mem­bers whose combi­nation of age plus years of continuous em­ployment or mem­bership in the pension plan equals at least 55 at the date of windup have the right to receive a pension under certain conditions. The addi­tional cost to GenCorp of these accelerated "Grow In" benefits was $5 mil­lion. GenCorp requested a hearing by the Pension Commis­sion. In 1994, the Com­mis­sion ordered the Superin­tendent to order the partial windup of the GenCorp's pension plans. Gen­corp appealed.

The Ontario Divisional Court, Corbett, J., dissenting, dismissed the appeal.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope of review - General - GenCorp sold a plant to General Tire (General) - GenCorp retained the assets and liabilities of its pension plans covering the employees who transferred to General - General started new pension plans for the transferred employees - Subsequently, General closed the plant and partially wound up its pen­sion plans - The Superin­tendent of Pen­sions ordered a partial windup of Gen­Corp's pension plans under s. 69(1)(d) of the Pension Benefits Act (i.e., layoffs caused by the employer's discon­tinuance of busi­ness) - GenCorp requested a review - The Pension Com­mission of Ontario affirmed the Superin­tendent's decision - GenCorp appealed - The Ontario Divi­sional Court held that the appropriate standard of review of the Commission's decision was not "correct­ness" but "con­siderable deference" - See paragraphs 13 to 20 and 107.

Limitation of Actions - Topic 2423

Actions in contract - Pension plans - When time begins to run - In 1987, Gen­Corp sold a plant to General Tire (Gen­eral) - GenCorp retained the assets and liabilities of its pension plans covering the employees who transferred to General - General started new pension plans for the transferred employees - In 1991, Gen­eral closed the plant and partially wound up its pension plans - In 1993, the Superin­ten­dent of Pensions issued proposals or­dering a partial windup of GenCorp's pension plans under s. 69(1)(d) of the Pension Benefits Act (i.e., layoffs caused by the employer's discon­tinuance of busi­ness) - GenCorp sub­mitted that the Su­perinten­dent's propo­sals were barred by the Act's five year limitation period - The Ontario Divisional Court ruled that the proposals were not barred by the limitation period because it ran from the date of the plant's closing (1991), not the date it was sold (1987) - See para­graphs 25 to 28 and 107.

Master and Servant - Topic 1948.2

Remuneration - Pension benefits - Regu­lation - Superintendent - Windup order - GenCorp sold a plant to General Tire (General) - GenCorp retained the assets and liabilities of its pension plans covering the employees who transferred to General - General started new pension plans for the transferred employees - Subsequently, General closed the plant and partially wound up its pension plans - The Super­in­tendent of Pensions ordered a partial windup of GenCorp's pension plans under s. 69(1)(d) of the Pension Benefits Act (i.e., layoffs caused by the employer's discon­tinuance of business) - GenCorp sub­mitted that s. 69(1)(d) did not apply because the business closed was General's, not that of GenCorp which was the "em­ployer" in relation to the plans in question - The Superintendent's decision was af­firmed by the Pension Commission - GenCorp appealed - The Ontario Divi­sional Court dismissed the appeal.

Cases Noticed:

Wedekind v. Director of Income Main­tenance (Ont.) (1994), 75 O.A.C. 358; 21 O.R.(3d) 289 (C.A.), dist. [para. 13].

Wedekind v. Ontario (Ministry of Com­munity and Social Services) - see Wedekind v. Director of Income Main­tenance (Ont.).

St. Mary's Paper Inc. (Bankrupt), Re (1994), 73 O.A.C. 1; 19 O.R.(3d) 163 (C.A.), consd. [paras. 15, 76].

Imperial Oil Ltd. v. Superintendent of Pensions (N.S.) et al. (1995), 142 N.S.R.(2d) 26; 407 A.P.R. 26; 11 C.C.E.L.(2d) 134 (C.A.), consd. [paras. 18, 97].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385, consd. [para. 18].

Firestone Canada Inc. v. Pension Commis­sion (Ont.) (1990), 42 O.A.C. 176; 1 O.R.(3d) 122 (C.A.), consd. [paras. 24, 76].

Collins and Batchelor et al. v. Pension Commission (Ont.) and Dominion Stores Ltd. (1986), 16 O.A.C. 24; 56 O.R.(2d) 274 (Div. Ct.), consd. [para. 76].

Otis Canada Inc. v. Pension Commission (Ont.) (1992), 55 O.A.C. 211; 89 D.L.R.(4th) 746 (Div. Ct.), consd. [para. 78].

Allan et al. v. Superintendent of Pensions (Ont.) (October 1992, Issue 2), 3 PCO Bulletin 36, consd. [para. 79].

Imperial Oil Ltd. v. Superintendent of Pen­sions (N.S.) et al. (1994), 131 N.S.R.(2d) 321; 371 A.P.R. 321; 115 D.L.R.(4th) 108 (S.C.), consd. [para. 87].

Hawker Siddeley Canada Inc. v. Superin­tendent of Pensions (N.S.) et al. (1994), 129 N.S.R.(2d) 194; 362 A.P.R. 194; 113 D.L.R.(4th) 424 (C.A.), consd. [para. 95].

Statutes Noticed:

Pension Benefits Act, R.S.N.S. 1989, c. 340, sect. 85(1), sect. 85(2), sect. 85(3), sect. 85(4) [para. 97].

Pension Benefits Act, R.S.O. 1980, c. 373, sect. 29 [para. 65].

Pension Benefits Act, R.S.O. 1990, c. P-8, sect. 1 [paras. 10, 50, 53, 56]; sect. 69(1)(a), sect. 69(1)(b) [paras. 8, 33]; sect. 69(1)(c) [para. 33]; sect. 69(1)(d) [paras. 8, 33, 42]; sect. 69(1)(e), sect. 69(1)(f) [paras. 8, 33]; sect. 69(1)(g) [para. 33]; sect. 69(1)(i), sect. 69(2) [para. 8]; sect. 74(1) [para. 34]; sect. 81(1) [para. 78]; sect. 96 [para. 14]; sect. 110(6) [para. 25].

Authors and Works Noticed:

Ontario, Pension Commission, Guide to Pension Plan Windups, gen­erally [para. 82].

Counsel:

J. Brett Ledger and Ian J. McSweeney, for the appellant;

Leslie M. McIntosh and Peggy McCal­lum, for the respondent, Superintendent;

Barrie Chercover, for the respondent, Union;

Derek L. Rogers, for the intervenor, Westinghouse Canada Inc.;

Lennox A. MacLean, Q.C., for the intervenor, Union.

This appeal was heard on October 11 and 12, 1995, before Southey, O'Brien and Cor­bett, JJ., of the Ontario Divisional Court.

On December 7, 1995, the following judg­ment was released from the Divisional Court and the following opinions were filed:

Southey, J. (O'Brien, J., concurring) - see paragraphs 1 to 29;

Corbett, J., dissenting - see paragraphs 30 to 108.