Indalex Ltd. et al., Re, (2013) 301 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Abella, Rothstein, Cromwell and Moldaver, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 05, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 301 O.A.C. 1 (SCC);2013 SCC 6;[2013] 1 SCR 271;439 NR 235

Indalex Ltd., Re (2013), 301 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2013] O.A.C. TBEd. MR.035

Sun Indalex Finance, LLC (appellant) v. United Steelworkers, Keith Carruthers, Leon Kozierok, Richard Benson, John Faveri, Ken Waldron, John (Jack) W. Rooney, Bertram McBride, Max Degen, Eugene D'Iorio, Neil Fraser, Richard Smith, Robert Leckie and Fred Granville (respondents)

George L. Miller, the Chapter 7 Trustee of the Bankruptcy Estates of the U.S. Indalex Debtors (appellant) v. United Steelworkers, Keith Carruthers, Leon Kozierok, Richard Benson, John Faveri, Ken Waldron, John (Jack) W. Rooney, Bertram McBride, Max Degen, Eugene D'Iorio, Neil Fraser, Richard Smith, Robert Leckie and Fred Granville (respondents)

FTI Consulting Canada ULC, in its capacity as court-appointed monitor of Indalex Limited, on behalf of Indalex Limited (appellant) v. United Steelworkers, Keith Carruthers, Leon Kozierok, Richard Benson, John Faveri, Ken Waldron, John (Jack) W. Rooney, Bertram McBride, Max Degen, Eugene D'Iorio, Neil Fraser, Richard Smith, Robert Leckie and Fred Granville (respondents)

United Steelworkers (appellant) v. Morneau Shepell Ltd. (formerly known as Morneau Sobeco Limited Partnership) and Superintendent of Financial Services (respondents) v. Superintendent of Financial Services, Insolvency Institute of Canada, Canadian Labour Congress, Canadian Federation of Pensioners, Canadian Association of Insolvency and Restructuring Professionals and Canadian Bankers Association (intervenors)

(34308; 2013 SCC 6; 2013 CSC 6)

Indexed As: Indalex Ltd. et al., Re

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Abella, Rothstein, Cromwell and Moldaver, JJ.

February 1, 2013.

Summary:

Indalex Limited was the sponsor and administrator of two pension plans (the executive plan and the salaried plan). Members of the salaried plan included seven employees for whom the United Steelworkers (USW) acted as bargaining agent. Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA). At the time, both plans were underfunded and the salaried plan was in the process of being wound up. A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement (see [2009] O.T.C. Uned. 9360). The order created a "super-priority" charge in favour of the DIP lenders. The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.). Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders. Indalex U.S. paid the shortfall in accordance with its obligation under the guarantee. The CCAA monitor retained $6.75 million of the sale proceeds in reserve (an amount approximating the deficiencies in the plans). In accordance with a process designed by the CCAA court, beneficiaries under the Plans commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act and should be paid to them in priority to Indalex U.S. They also asserted that, during the CCAA proceedings, Indalex breached the fiduciary obligation that was owed to them. Indalex moved to lift the stay of proceedings and assign itself into bankruptcy.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 1114, dismissed the beneficiaries' motions on the basis that, at the date of sale, no deemed trust under the Pension Benefits Act had arisen in respect of either plan. The court found it unnecessary to decide Indalex's motion. The beneficiaries appealed.

The Ontario Court of Appeal, in a decision reported at 276 O.A.C. 347, allowed the appeals and ordered the monitor to pay, from the reserve fund, amounts sufficient to satisfy the deficiencies in the plans. The parties made submissions on costs.

The Ontario Court of Appeal approved an agreement between the Ontario Superintendent of Financial Services and the members of the executive plan whereby the members' legal fees and disbursements would be paid on a full indemnity basis from the executive plan's fund attributable to each of the 14 members who participated in the appeal. The court declined to order the payment of costs to USW from the fund of the salaried plan. The beneficiaries and USW, as the successful parties, were entitled to their costs on a partial indemnity basis from Sun Indalex and the U.S. Trustee, payable jointly and severally. The monitor, Sun Indalex, a secured creditor of Indalex U.S., and Indalex U.S.'s trustee in bankruptcy, appealed the decision to allow the beneficiaries' appeal. USW appealed the refusal to order payment of its costs from the fund of the salaried plan.

The Supreme Court of Canada, Lebel and Abella, JJ., dissenting, allowed the main appeal and restored the Superior Court's order. The court set aside the Court of Appeal's costs decision and ordered the parties to bear their own costs of this appeal and the appeal to the Court of Appeal. The court dismissed USW's appeal.

Company Law - Topic 251

Nature of corporations - General - Distinct legal personality - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - The Ontario Court of Appeal held that a deemed trust existed with respect to the salaried plan - Further, Indalex owed fiduciary obligations to the plans' beneficiaries - The court imposed a constructive trust over the reserved funds in favour of the beneficiaries - The court stated that, inter alia, unless a constructive trust were imposed, the reserve funds would end up in the hands of other Indalex entities which were not operating at arm's length from Indalex and that this would effectively permit the party who breached its fiduciary obligation to take the benefit of those breaches to the detriment of those to whom the fiduciary obligations were owed - The Supreme Court of Canada stated that "There are two difficulties with this approach, in my respectful view. The U.S. debtors paid real money to honour their guarantees. Moreover, unless there is a legal basis for ignoring the separate corporate personality of separate corporate entities, those separate corporate existences must be respected. Neither the parties nor the Court of Appeal advanced such a reason." - See paragraphs 236 and 237.

Company Law - Topic 313

Nature of corporations - Lifting the corporate veil - Related companies - [See Company Law - Topic 251 ].

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - The Ontario Court of Appeal held that a deemed trust existed with respect to the salaried plan and that Indalex breached fiduciary obligations owed to the beneficiaries of both plans - While the super-priority charge provided that it ranked in priority over trusts, "statutory or otherwise", it did not take priority over the deemed trust because the deemed trust was not identified by the court at the time the charge was granted and the affidavit evidence suggested that such a priority was unnecessary - As no finding of paramountcy was made, valid provincial laws continued to operate - The super-priority charge did not override the PBA deemed trust - The two operated sequentially, with the deemed trust being satisfied first from the reserve fund - The Supreme Court of Canada held that to the extent that a deemed trust existed, it was superseded by the DIP loan because of the operation of the doctrine of federal paramountcy - Paramountcy was a question of law - As a result, subject to the application of the rules on the admissibility of new evidence, it could be raised if it was not invoked in an initial proceeding - The federal and provincial laws were inconsistent, as they gave rise to different, and conflicting, orders of priority - See paragraphs 48 to 60 and 241.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See Constitutional Law - Topic 3504 ].

Creditors and Debtors - Topic 8581.1

Debtors relief legislation - Companies' creditors arrangement legislation - Priorities - [See Constitutional Law - Topic 3504 ].

Creditors and Debtors - Topic 8598

Debtors' relief legislation - Companies' creditors arrangement legislation - Costs - Legal fees and disbursements - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Beneficiaries of the salaried plan included seven employees for whom the United Steelworkers (USW) acted as bargaining agent - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - The Ontario Court of Appeal held that a deemed trust existed with respect to the salaried plan and that Indalex breached fiduciary obligations owed to the beneficiaries of both plans - The court imposed a constructive trust over the reserved funds in favour of the beneficiaries - The court approved an agreement between Ontario Superintendent of Financial Services and the members of the executive plan whereby the members' legal fees and disbursements would be paid on a full indemnity basis from the executive plan's fund attributable to each of the 14 members who participated in the appeal - The court declined to order the payment of costs to USW from the salaried plan's fund - USW appealed the refusal to order payment of its costs from the fund - The Supreme Court of Canada dismissed the appeal - The decision whether to award costs from a pension fund was a discretionary matter - USW relied on what it referred to as the Costs Payment Test which was the factors set out in Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (SCC) - It was incorrect to elevate the Nolan inquiries to a test for entitlement to costs in the pension context - Nolan factors were best understood as highly relevant considerations guiding the exercise of judicial discretion - Here, the litigation raised novel points of law - The Court of Appeal essentially decided that USW, representing only seven of the plan's 169 members, should not without consultation be able to in effect impose the risks of that litigation on all of the plan's members, the vast majority of whom were not union members - The Court of Appeal did not apply the Nolan factors to the executive plan because the costs order was the product of an agreement and did not order payment of costs out of the fund as a whole - In the case of USW, there was no such agreement and no such limitation of risk to the supporters of the litigation - See paragraphs 242 to 257.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - Indalex moved to lift the stay and assign itself into bankruptcy - The motions judge dismissed the beneficiaries' motion and found it unnecessary to decide Indalex's motion - The Ontario Court of Appeal allowed the beneficiaries' appeal - A deemed trust existed with respect to the salaried plan - Further, Indalex owed fiduciary obligations to the plans' beneficiaries which it breached during the CCAA proceedings by not protecting the beneficiaries' interests and seeking voluntarily bankruptcy - Also, Indalex's ultimate corporate duty to act in the corporation's best interests conflicted with its duty as administrator to act in the beneficiaries' best interests - The court imposed a constructive trust over the reserved funds in favour of the beneficiaries - The Supreme Court of Canada concluded that the Court of Appeal erred in finding a fiduciary breach based on the steps that Indalex took in the CCAA proceedings and it having sought voluntarily bankruptcy - Indalex's dual role as administrator and employer was authorized by s. 8(1)(a) the PBA - Indalex's only breach occurred when, upon insolvency, its corporate interests were in obvious conflict with its fiduciary duty as plan administrator to ensure that all contributions were made to the plans when due - The breach was not in failing to avoid that conflict as the conflict was unavoidable - The breach was in failing to address the conflict to ensure that the beneficiaries had the opportunity to have representation as if there were an independent plan administrator - A remedial constructive trust was not an appropriate remedy for that breach - It was far from clear that any of the conditions for a constructive trust were present, including the requirement that the wrongdoer's act gave rise to an identifiable asset which would be unjust for the wrongdoer to retain - Indalex's breach did not give rise to the proceeds in the reserve - See paragraphs 179 to 240.

Master and Servant - Topic 1941.4

Remuneration - Pension or retirement benefit - Plan administrator - Duties - [See Equity - Topic 3606 ].

Master and Servant - Topic 1941.4

Remuneration - Pension or retirement benefit - Plan administrator - Duties - The Supreme Court of Canada stated the legal framework within which an administrator of a pension plan functioned was established primarily by the plan documents and the Ontario Pension Benefits Act (PBA) - In addition to the duties set out in the plan, s. 22 of the PBA listed the general duties of the administrator - The powers and duties conferred on the administrator by legislation were administrative in nature and mostly pertained to the internal management of the pension fund and to the relationship among the pension administrator, the beneficiaries, and the Superintendent of Financial Services - Section 8(1)(a) of the PBA authorized an employer to act as an administrator of a pension plan and created a situation where a single entity potentially owed two sets of fiduciary duties (one to the corporation and the other to the plan members) - The fiduciary duties that an employer-administrator owed to plan beneficiaries related to statutory and other tasks - Those tasks were the "specific legal interests" with respect to which the employer-administrator's fiduciary duties attached - In deciding what was in the corporation's best interests, the board of directors had to look to the shareholders' interests, employees, creditors and others - Where those interests were not aligned or might conflict, it was for the directors to decide what was in the corporation's overall best interests - Accordingly, a board of directors, acting as an employer-administrator, could not always act exclusively in the interests of the plan beneficiaries - The simple existence of the sort of conflicts inherent in the employer's exercise of business judgment could not of themselves be a breach of the administrator's fiduciary duty - Such would be inconsistent with the statutory scheme that expressly permitted an employer to act as plan administrator - A situation of conflict occurred where there was a substantial risk that the employer-administrator's representation of the plan beneficiaries would be materially and adversely affected by the employer-administrator's duties to the corporation - However, the employer-administrator's obligation to represent the beneficiaries extended only to those tasks and duties described above - See paragraphs 186 to 200.

Master and Servant - Topic 1941.4

Remuneration - Pension or retirement benefit - Plan administrator - Duties - Section 8(1)(a) of the Ontario Pension Benefits Act (PBA) authorized an employer to act as an administrator of a pension plan - The Supreme Court of Canada referred to the type of conflicts that can arise for an employer-administrator when proceedings are taken under Companies' Creditors Arrangement Act (CCAA) - In such a situation, first and foremost, the employer-administrator must bring the conflict to the attention of the CCAA judge - It was not enough to include the beneficiaries in the list of creditors - The judge had to be made aware that the debtor, as an administrator of the plan, was, or might be, in a conflict of interest - CCAA judges were well placed to decide how best to ensure that the beneficiaries interests were fully represented in the context of "real-time" litigation under the CCAA - See paragraphs 216 and 217.

Master and Servant - Topic 1949.3

Remuneration - Pension or retirement benefits - Deemed trust on windup - Indalex was the sponsor and administrator of a pension plan - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, the plan was underfunded and being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor- in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds in reserve - In accordance with a process designed by the CCAA court, the plan's beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and should be paid to them in priority to Indalex U.S. - A motions judge concluded that, because Indalex had made the going-concern and special payments to the salaried plan, at the date of closing there were no amounts due and therefore there was no deemed trust - The Ontario Court of Appeal allowed an appeal, holding that the deemed trust under s. 57(4) of the PBA applied to the plan's wind-up deficiency, the payment of which was provided for in s. 75(1)(b) - The Supreme Court of Canada disagreed with the Court of Appeal - To be subject to a deemed trust, the pension plan had to be wound up and the amount in question had to meet three requirements - There had to be (1) "employer contributions", (2) "accrued to the date of the wind-up" and (3) "not yet due" - A wind-up deficiency arose "Where a pension plan is wound up" (s. 75(1)) - The most plausible grammatical and ordinary sense of "accrued to the date of the wind up" was that the amounts referred to were precisely ascertained immediately before the effective date of the plan's wind-up - The wind-up deficiency only arose upon wind-up and it was neither ascertained nor ascertainable on the date fixed for wind up - That view was supported by the broader statutory context and the legislative evolution and history - See paragraphs 116 to 178.

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See Equity - Topic 3606 ].

Statutes - Topic 1450

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - The Supreme Court of Canada stated that "Legislative history and evolution may form an important part of the overall context within which a provision should be interpreted. Legislative evolution refers to the various formulations of the provision while legislative history refers to evidence about the provision's conception, preparation and enactment ..." - See paragraph 154.

Statutes - Topic 1641

Interpretation - Legislative history - General - [See Statutes - Topic 1450 ].

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - [See Company Law - Topic 251 and Equity - Topic 3606 ].

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds ($6.75 million) in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - The Ontario Court of Appeal held that a deemed trust existed with respect to the salaried plan - Further, Indalex breached its fiduciary obligations to the plans' beneficiaries - The court imposed a constructive trust over the reserved funds in favour of the beneficiaries - The Supreme Court of Canada stated that imposing a constructive trust was wholly disproportionate to Indalex's breach of fiduciary duty (a failure to meaningfully address the conflicts of interest that arose during the CCAA proceedings) - Imposing a $6.75 million penalty on the other creditors as a remedial response to the breach was so grossly disproportionate to the breach as to be unreasonable - See paragraph 238.

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - Indalex was the sponsor and administrator of two pension plans (the executive plan and the salaried plan) - Indalex obtained protection under the Companies' Creditors Arrangement Act (CCAA) - At the time, both plans were underfunded and the salaried plan was being wound up - A court order enabled Indalex to borrow funds pursuant to a debtor-in-possession (DIP) credit agreement - The order created a "super-priority" charge in favour of the DIP lenders - The obligation to repay the DIP lenders was guaranteed by Indalex's U.S. parent company (Indalex U.S.) - Indalex was sold through the CCAA proceedings, but the sale proceeds were insufficient to pay the DIP lenders - Indalex U.S. paid the shortfall in accordance with the guarantee - The CCAA monitor retained sale proceeds ($6.75 million) in reserve - In accordance with a process designed by the CCAA court, the plans' beneficiaries commenced motions, asserting that the reserved funds were subject to the deemed trust provisions of the Ontario Pension Benefits Act (PBA) and that Indalex as the plans' administrator breached its fiduciary obligations - The Ontario Court of Appeal held that a deemed trust existed with respect to the salaried plan - Further, Indalex breached its fiduciary obligations to the plans' beneficiaries - The court imposed a constructive trust over the reserved funds in favour of the beneficiaries - The Supreme Court of Canada, in setting aside the constructive trust, stated that "A judicially ordered constructive trust, imposed long after the fact, is a remedy that tends to destabilize the certainty which is essential for commercial affairs and which is particularly important in financing a workout for an insolvent corporation. To impose a constructive trust in response to a breach of fiduciary duty to ensure for the plan beneficiaries some procedural protections that they in fact took advantage of in any case is an unjust response in all of the circumstances." - See paragraphs 239.

Words and Phrases

Accrued - The Supreme Court of Canada considered the meaning of this word as used in s. 57(4) of the Pension Benefits Act, R.S.O. 1990, c. P-8 - See paragraphs 138 to 145.

Cases Noticed:

Husky Oil Operations Ltd. v. Minister of National Revenue et al., [1995] 3 S.C.R. 453; 188 N.R. 1; 137 Sask.R. 81; 107 W.A.C. 81, refd to. [para. 8].

Ontario Hydro-Electric Power Commission v. Albright (1922), 64 S.C.R. 306, refd to. [paras. 35, 140].

Canadian Pacific Ltd. v. Ontario (Minister of National Revenue) et al. (1998), 114 O.A.C. 217; 41 O.R.(3d) 606 (C.A.), refd to. [paras. 37, 143].

Century Services Inc. v. Canada (Attorney General) - see Leroy (Ted) Trucking Ltd. et al., Re.

Leroy (Ted) Trucking Ltd. et al., Re, [2010] 3 S.C.R. 379; 409 N.R. 201; 296 B.C.A.C. 1; 503 W.A.C. 1; 2010 SCC 60, refd to. [paras. 50, 112].

Crystalline Investments Ltd. v. Domgroup Ltd., [2004] 1 S.C.R. 60; 316 N.R. 1; 184 O.A.C. 33; 2004 SCC 3, refd to. [para. 52].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 55].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 57].

Burke et al. v. Hudson's Bay Co. et al., [2010] 2 S.C.R. 273; 406 N.R. 109; 268 O.A.C. 1; 2010 SCC 34, affing. (2008), 236 O.A.C. 140; 67 C.C.P.B. 1 (C.A.), refd to. [paras. 62, 183].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank, [1992] 3 S.C.R. 558; 143 N.R. 321; 131 A.R. 321; 25 W.A.C. 321, refd to. [para. 77].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 135].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, refd to. [para. 139].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 154].

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, refd to. [para. 173].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [paras. 184, 271].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 184].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 185].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [paras. 185, 267].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 185].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 185].

BCE Inc. v. 1976 Debentureholders - see Aegon Capital Management Inc. et al. v. BCE Inc. et al.

Aegon Capital Management Inc. et al. v. BCE Inc. et al., [2008] 3 S.C.R. 560; 383 N.R. 119; 2008 SCC 69, refd to. [para. 193].

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73; 2002 SCC 70, refd to. [para. 200].

Elan Corp. and Nova Metal Products Inc. v. Comiskey (1990), 41 O.A.C. 282 (C.A.), refd to. [para. 204].

Algoma Steel Inc., Re (2001), 147 O.A.C. 291; 25 C.B.R.(4th) 194 (C.A.), refd to. [para. 207].

Marine Drive Properties Ltd. et al., Re, [2009] B.C.T.C. Uned. 145; 52 C.B.R.(5th) 47; 2009 BCSC 145, refd to. [para. 208].

Timminco Ltd. et al., Re, [2012] O.T.C. Uned. 506; 85 C.B.R.(5th) 169; 2012 ONSC 506, refd to. [para. 208].

AbitibiBowater Inc., Re, 2009 QCCS 6459, refd to. [para. 208].

First Leaside Wealth Management Inc. et al., Re, [2012] O.T.C. Uned. 1299; 2012 ONSC 1299, refd to. [para. 217].

Nortel Networks Corp., Re (2009), 75 C.C.P.B. 206 (Ont. Sup. Ct.), refd to. [para. 217].

Royal Oak Mines Inc., Re (1999), 96 O.T.C. 272; 6 C.B.R.(4th) 314 (Gen. Div.), refd to. [para. 217].

Donkin v. Bugoy - see Bugoy Estate v. Bugoy.

Bugoy Estate v. Bugoy, [1985] 2 S.C.R. 85; 61 N.R. 172; 44 Sask.R. 178, refd to. [para. 223].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [paras. 223, 276].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 229].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 246].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 246].

Royal Oak Mines Inc., Re (1999), 96 O.T.C. 279; 7 C.B.R.(4th) 293 (Gen. Div.), refd to. [para. 275].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 276].

Statutes Noticed:

Pension Benefits Act, R.S.O. 1990, c. P-8, sect. 57(4) [Appendix]; sect. 75(1) [para. 123, Appendix].

Authors and Works Noticed:

American Law Institute, Restatement of the Law (Third), The Law Governing Lawyers (2000), § 121 [para. 200].

Arnold, Brian J., Timing and Income Taxation: The Principles of Income Measurement for Tax Purposes (1983), p. 44 [para. 141].

Canadian Institute of Chartered Accountants, CICA Handbook, Part II, Accounting (2012), s. 1000, paras. 41 to 44 [para. 141].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 135].

Dukelow, Daphne A., The Dictionary of Canadian Law (4th Ed. 2011), p. 13 [para. 140].

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Hogg, Peter W., Magee, Joanne E., and Li, Jinyan, Principles of Canadian Income Tax Law (7th Ed. 2010), s. 6.5(b) [para. 141].

Jackson, Georgina R., and Sarra, Janis P., Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters, in Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), pp. 78, 79 [para. 277].

Kaplan, Ari N., Pension Law (2006), pp. 395 [para. 129]; 532 [para. 144]; 541, 542 [para. 122].

Mercer, William M., Mercer Pension Manual (1994) (2009 Looseleaf Update, Release 6), vol. 1, p. 10-41 [para. 126].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 99, 2nd Sess., 32nd Parliament (July 7, 1982), p. 3568 [para. 167].

Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), pp. 78, 79 [para. 277].

Sarra, Janis P., Rescue! The Companies' Creditors Arrangement Act (2007), pp. 55 [paras. 207, 208, 275]; 56 [para. 275]; 97 [para. 59]; 278 [para. 217].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), p. 454 [para. 228]; 471 [para. 230].

Counsel:

Benjamin Zarnett, Frederick L. Myers, Brian F. Empey and Peter Kolla, for the appellant, Sun Indalex Finance, LLC;

Harvey G. Chaiton and George Benchetrit, for the appellant, George L. Miller, the Chapter 7 Trustee of the Bankruptcy Estates of the U.S. Indalex Debtors;

David R. Byers, Ashley John Taylor and Nicholas Peter McHaffie, for the appellant, FTI Consulting Canada ULC, in its capacity as court-appointed monitor of Indalex Limited, on behalf of Indalex Limited;

Darrell L. Brown, for the appellant/respondent, the United Steelworkers;

Andrew J. Hatnay and Demetrios Yiokaris, for the respondents, Keith Carruthers, et al.;

Hugh O'Reilly and Amanda Darrach, for the respondent, Morneau Shepell Ltd. (formerly known as Morneau Sobeco Limited Partnership);

Mark Bailey, Leonard Marsello and William MacLarkey, for the respondent/intervener, the Superintendent of Financial Services;

Robert I. Thornton and D. J. Miller, for the intervener, the Insolvency Institute of Canada;

Steven Barrett and Ethan Poskanzer, for the intervener, the Canadian Labour Congress;

Kenneth T. Rosenberg, Andrew K. Lokan and Massimo Starnino, for the intervener, the Canadian Federation of Pensioners;

Éric Vallières, Alexandre Forest and Yoine Goldstein, for the intervener, the Canadian Association of Insolvency and Restructuring Professionals;

Mahmud Jamal, Jeremy Dacks and Tony Devir, for the intervener, the Canadian Bankers Association.

Solicitors of Record:

Goodmans, Toronto, Ontario, for the appellant, Sun Indalex Finance, LLC;

Chaitons, Toronto, Ontario, for the appellant, George L. Miller, the Chapter 7 Trustee of the Bankruptcy Estates of the U.S. Indalex Debtors;

Stikeman Elliott, Toronto, Ontario, for the appellant, FTI Consulting Canada ULC, in its capacity as court-appointed monitor of Indalex Limited, on behalf of Indalex Limited;

Sack Goldblatt Mitchell, Toronto, Ontario, for the appellant/respondent, United Steelworkers;

Koskie Minsky, Toronto, Ontario, for the respondents, Keith Carruthers, et al.;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the respondent, Morneau Shepell Ltd. (formerly known as Morneau Sobeco Limited Partnership);

Attorney General of Ontario, Toronto, Ontario, for the respondent/intervener, the Superintendent of Financial Services;

Thornton Grout Finnigan, Toronto, Ontario, for the intervener, the Insolvency Institute of Canada;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Canadian Labour Congress;

Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the intervener, the Canadian Federation of Pensioners;

McMillan, Montreal, Quebec, for the intervener, the Canadian Association of Insolvency and Restructuring Professionals;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Bankers Association.

This appeal was heard on June 5, 2012, by McLachlin, C.J.C., LeBel, Deschamps, Abella, Rothstein, Cromwell and Moldaver, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on February 1, 2013, with the following opinions:

Deschamps, J. (Moldaver, J., concurring) - see paragraphs 1 to 83;

Cromwell, J. (McLachlin, C.J.C., Rothstein, J., concurring) - see paragraphs 84 to 261;

LeBel, J., dissenting (Abella, J., concurring) - see paragraphs 262 to 279.