Hockin et al. v. Bank of British Columbia et al., (1995) 57 B.C.A.C. 255 (CA)

• Judge: Cumming, Hollinrake and Finch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 31, 1995
• Jurisdiction: British Columbia
• Citations: (1995), 57 B.C.A.C. 255 (CA)

Hockin v. Bk. of B.C. (1995), 57 B.C.A.C. 255 (CA);

    94 W.A.C. 255

MLB headnote and full text

T. Andrew Hockin, Charles R. Tricker and Denis H. Pender, on their own behalf and on behalf of all Retired Members and Other Members who are entitled to a Paid Up Deferred Annual Plan established by the Bank of British Columbia March, 1969 (appellants/plaintiffs) v. The Bank of British Columbia (respondents/defendants) and The Canada Trust Company (defendant) and Victor Dobb and others (appellants/defendants) and The Bank of British Columbia (respondent/third party) and The Canada Trust Company (third party)

(CA017643; CA017652)

Indexed As: Hockin et al. v. Bank of British Columbia et al.

British Columbia Court of Appeal

Cumming, Hollinrake and Finch, JJ.A.

March 31, 1995.

Summary:

The issue in this case was the entitlement to surplus monies in a bank's pension fund. The trial judge found for the bank. The employees appealed.

The British Columbia Court of Appeal allowed the appeal in part.

Estoppel - Topic 386

By record - Res judicata - As a bar to subsequent proceedings - Issues decided in prior proceedings - At issue was entitle­ment to surplus in a bank's pension plan - In 1989 a trial judge ruled the plan's amendment clause empowered the bank to remove surplus prior to termination - The Court of Appeal affirmed the decision in 1990 - Leave to appeal to the Supreme Court of Canada was denied in 1991 - A second trial decision again ruled the amendments regarding surplus were valid and the employees were not entitled to the surplus - The Supreme Court of Canada, in 1994, in an unrelated case, disagreed with the 1990 Court of Appeal decision - The British Columbia Court of Appeal held that there was no issue estoppel bar­ring further litigation, on the ground of special circumstances - The employees were entitled to reopen the case - See paragraphs 22 to 37.

Master and Servant - Topic 1943

Remuneration - Pension benefits - Con­tribution by employer - In a pension plan there was no requirement that the employ­er's contribution be as calculated by an actuary - The British Columbia Court of Appeal held that this prohibited the employer from taking into account surplus when making its required contribution, even though the employer followed the advice of its actuary in making the contri­bution - The employer was not permitted to take contribution holidays when there was a surplus in the plan - See paragraphs 38 to 56.

Cases Noticed:

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81, consd. [para. 18].

Canadian Pacific Airlines Ltd. and Pacific Western Airlines Ltd. v. British Columbia (1985), 67 B.C.L.R. 1 (C.A.), affd. [1989] 1 S.C.R. 1133; 96 N.R. 1, refd to. [para. 22].

Diamond v. Western Realty Co., [1924] S.C.R. 308, refd to. [para. 22].

Bailey v. Guaranty Trust Co. of Canada (1987), 77 A.R. 387; 39 D.L.R.(4th) 111 (C.A.), refd to. [para. 22].

Arnold et al. v. National Westminster Bank plc, [1991] 2 A.C. 93; 142 N.R. 31 (H.L.), consd. [para. 23].

Stellar Properties Ltd. et al. v. Botham Holdings Ltd. (1994), 41 B.C.A.C. 185; 66 W.A.C. 185; 94 B.C.L.R.(2d) 42 (C.A.), refd to. [para. 28].

Clayton et al. v. Garrett (1995), 56 B.C.A.C. 81; 92 W.A.C. 81 (C.A.), refd to. [para. 28].

Dorion v. Roberge et autres, [1991] 1 S.C.R. 374; 124 N.R. 1; 39 Q.A.C. 81, refd to. [para. 31].

Bathgate et al. v. National Hockey League Pension Society et al. (1994), 69 O.A.C. 269; 16 O.R.(3d) 761 (C.A.), refd to. [para. 44].

Askin et al. v. Ontario Hospital Association et al. (1991), 46 O.A.C. 278; 2 O.R.(3d) 641 (C.A.), refd to. [para. 45].

Statutes Noticed:

Pension Benefits Standards Act Regula­tions, C.R.C., c. 1252, reg. 12(2) [para. 53].

Counsel:

D. Harbottle and G. Lewis, for the appel­lants, T. Andrew Hockin and others;

J.N. Laxton, Q.C., and R.D. Gibbens, for the appellants, Victor Dobb and others;

I.G. Nathanson, Q.C., S.R. Schachter and G.B. Gomery, for the respondent, Bank of British Columbia.

This appeal was heard on June 7, 8, 9 and October 11, 12, 13 and 14, 1994, in Vancouver, British Columbia, before Cumming, Hollinrake and Finch, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on March 31, 1995.