Nolan et al. v. Superintendent of Financial Services (Ont.) et al., (2009) 253 O.A.C. 256 (SCC)

JudgeBinnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateAugust 07, 2009
JurisdictionCanada (Federal)
Citations(2009), 253 O.A.C. 256 (SCC);2009 SCC 39

Nolan v. Superintendent (2009), 253 O.A.C. 256 (SCC)

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] O.A.C. TBEd. AU.045

Elaine Nolan, George Phillips, Elisabeth Ruccia, Paul Carter, R.A. Varney and Bill Fitz, being members of the DCA Employees Pension Committee representing certain of the members and former members of the Pension Plan for the Employees of Kerry (Canada) Inc. (appellants) v. Kerry (Canada) Inc. and Superintendent of Financial Services (respondents) and Association of Canadian Pension Management and Canadian Labour Congress (intervenors)

(32205; 2009 SCC 39; 2009 CSC 39)

Indexed As: Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Supreme Court of Canada

Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

August 7, 2009.

Summary:

Former employees of Kerry (Canada) Inc. (or its predecessors), who were beneficiaries under Kerry's pension plan, complained about contribution holidays taken by the employer and amendments to the pension plan which purported to give the employer power to pay expenses from the fund. The Financial Services Tribunal held that all but a very few plan expenses could be paid from the fund (first hearing) and that Kerry was entitled to take a contribution holiday (second hearing). The Tribunal also refused to award costs, holding, in the second hearing, that it did not have the authority to order costs from the Fund and that regardless it did not think a costs award against either party was justified. The employees appealed.

The Ontario Divisional Court, in a decision reported at 209 O.A.C. 21, allowed the appeals in part, largely overturning the Tribunal's substantive decisions. The court ruled that the Tribunal was correct that it did not have jurisdiction to award costs out of the fund; however the court could award costs from the fund. The court heard submissions on costs.

The Ontario Divisional Court, in a decision reported at 213 O.A.C. 271, made a costs award requiring Kerry to pay the employees' costs, on a partial indemnity basis, of the second Tribunal hearing and the appeals to the Divisional Court. That award also required Kerry, as administrator of the Plan, to cause the Fund to pay the balance of the employees' costs of the appeals to the Divisional Court. Kerry appealed and the employees cross-appealed.

The Ontario Court of Appeal, in a decision reported 225 O.A.C. 163, allowed the appeal. The court set aside the judgment of the Divisional Court in respect of plan expenses and contribution holidays and restored the decisions of the Financial Services Tribunal in that regard. The court also set aside the costs order of the Divisional Court. The court dismissed the employees' cross-appeal.

The Ontario Court of Appeal, in a decision reported 229 O.A.C. 82, awarded Kerry costs of the Divisional Court appeals on a partial indemnity basis fixed at $45,000. Kerry was also entitled to costs of appeal and cross-appeal at the Court of Appeal level on a partial indemnity basis, fixed at $40,000. Costs were payable by the employees. The employees appealed both Court of Appeal decisions.

The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, dismissed the appeal.

Master and Servant - Topic 1943.1

Remuneration - Pension or retirement benefits - Contribution by employer - Contribution holiday - The Supreme Court of Canada discussed contribution holidays in the context of defined benefit pension plans - The court stated that when plan documents provided that funding requirements would be determined by actuarial practice, the employer could take a contribution holiday unless other wording or legislation prohibited it - See paragraphs 67 to 77.

Master and Servant - Topic 1943.1

Remuneration - Pension or retirement benefits - Contribution by employer - Contribution holiday - The Supreme Court of Canada discussed contribution holidays in the context of defined contribution pension plans - See paragraphs 78 to 86.

Master and Servant - Topic 1943.1

Remuneration - Pension or retirement benefits - Contribution by employer - Contribution holiday - Former employees of Kerry (Canada) Inc. (or its predecessor companies) were receiving pensions under Kerry's pension plan which was established in 1954 - The plan was originally a defined benefit pension plan, but was amended in 2000 to add a defined contribution component - Between 1985 and 2001 the employer took contribution holidays from its funding obligations of approximately $1.5 million - Employees challenged the employer's right to take a contribution holiday - In this context, the Supreme Court of Canada discussed whether an employer could use the surplus from a defined benefit pension plan to fund its contribution obligations toward a defined contribution pension plan - See paragraphs 87 to 114 and 134 to 204.

Master and Servant - Topic 1943.1

Remuneration - Pension or retirement benefits - Contribution by employer - Contribution holiday - Former employees of Kerry (Canada) Inc. (or its predecessor companies) were receiving pensions under Kerry's pension plan which was established in 1954 - The plan was originally a defined benefit pension plan, but was amended in 2000 to add a defined contribution component - Between 1985 and 2001 the employer took contribution holidays from its funding obligations of approximately $1.5 million - The employees complained - The Financial Services Tribunal held that Kerry was entitled to take contribution holidays respecting both the defined benefit and defined contribution components of the plan - The employees appealed - The Ontario Divisional Court, applying the standard of correctness to the Tribunal's decision, held that Kerry could take contribution holidays respecting the defined benefit component of the plan - Kerry appealed and the employees cross-appealed - The Ontario Court of Appeal held that the Divisional Court erred in the standard of review it applied - The proper standard was that of reasonableness and, as the Tribunal's decisions were reasonable, they should be allowed to stand (i.e., contribution holidays were allowed) - Moreover, the court opined that even if the Tribunal's decisions had to be correct, the court would not interfere with them - The employees appealed - The Supreme Court of Canada held that in accordance with Dunsmuir v. N.B. (2008 SCC), the appropriate standard of review was reasonableness - Here, the Tribunal's decision that the employer could take contribution holidays respecting the defined benefit component of the plan and the defined contribution component (after the retroactive amendments were made) was not unreasonable - See paragraphs 22 to 30 and 67 to 114.

Master and Servant - Topic 1943.1

Remuneration - Pension or retirement benefits - Contribution by employer - Contribution holiday - Former employees of Kerry (Canada) Inc. (or its predecessor companies) were receiving pensions under Kerry's pension plan which was established in 1954 - The plan was originally a defined benefit pension plan, but was amended in 2000 to add a defined contribution component - Between 1985 and 2001 the employer took contribution holidays from its funding obligations of approximately $1.5 million - The employees complained - The Financial Services Tribunal held that Kerry was entitled to take contribution holidays respecting both the defined benefit and defined contribution components of the plan - An issue arose as to whether the 2000 amendment created two pension plans - The Supreme Court of Canada held that in this case there was a retroactive amendment to the overall pension plan indicating that the intention was to create a single plan with two components (i.e., a defined benefit component and a defined contribution component) which expressly allowed for contribution holidays in respect of each component of the plan - Nothing in the relevant statutory or common law or in the plan documents prohibited the creation of combined defined benefit and defined contribution plan or prohibited contribution holidays in respect of either component - Therefore the Tribunal's decision respecting contribution holidays was not unreasonable - See paragraphs 87 to 114.

Master and Servant - Topic 1946

Remuneration - Pension or retirement benefits - Variation, amendment or rectification of plan - [See fourth and fifth Master and Servant - Topic 1943.1 ].

Master and Servant - Topic 1948.1

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - General - [See fourth Master and Servant - Topic 1953 ].

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - Judicial review - Standard of review - [See fourth and fifth Master and Servant - Topic 1943.1 and second and fourth Master and Servant - Topic 1953 ].

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - The Supreme Court of Canada discussed generally the issue of an employer's use of pension funds to pay pension plan expenses - See paragraphs 37 to 66.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - Former employees of Kerry (Canada) Inc. (or its predecessor companies) were receiving pensions under Kerry's pension plan which was established as a defined benefit plan in 1954 - Between 1985 and 2002, money from the fund was used to pay for approximately $850,000 of plan expenses - The employees complained - The Financial Services Tribunal held that all but a very few plan expenses could be paid from the fund - The employees appealed - The Ontario Divisional Court, reviewing the Tribunal's decision on a correctness standard, reversed the Tribunal on this issue - Kerry appealed - The Ontario Court of Appeal held that the Divisional Court erred in the standard of review it applied - A review of the Tribunal's decision on a reasonableness standard led to the conclusion that there was no basis for interference with that decision - The court opined further that it would not have disturbed the Tribunal's decision on this issue, even it were subject to review on a correctness standard - There was nothing in the plan documents that would require the employer to pay plan expenses - The employees appealed - The Supreme Court of Canada held that in accordance with Dunsmuir v. N.B. (2008), the appropriate standard of review was reasonableness - The court substantially agreed with the Court of Appeal on this issue (i.e., the Tribunal's findings would not be disturbed) - See paragraphs 22 to 30 and 37 to 66.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - The Supreme Court of Canada discussed when costs should be awarded from a pension trust fund - See paragraphs 119 to 127.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - In a case raising issues of contribution holidays and the payment of pension plan expenses out of a pension trust fund where the employer was successful, the Financial Services Tribunal refused to award costs, holding, that it did not have the authority to order costs from the pension trust fund and that, in any event, a costs award against either party was not justified - The Ontario Divisional Court held that the Tribunal was correct that it did not have jurisdiction to award costs out of the fund; however, the court could award costs from the fund and made an award accordingly in favour of the employees - The Ontario Court of Appeal set aside the costs order of the Divisional Court and ruled that costs should be payable by the employees in favour of employer - The employees appealed - The Supreme Court of Canada, applying Dunsmuir v. N.B. (SCC 2008), held that the standard of review applicable to the issue of whether the Tribunal had jurisdiction to award costs from the fund was reasonableness - The court stated that the language of s. 24 of the Financial Services Commission of Ontario Act was unambiguous, i.e., the Tribunal could not order costs from the trust fund if the fund was not a party - Here the fund was not a party and, in these circumstances, the court should defer to the Tribunal - Further, the court declined to interfere with the decision of the Court of Appeal not to order costs payable to the employees from the trust fund - See paragraphs 31 to 36 and 115 to 132.

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, refd to. [paras. 14, 144].

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

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

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. [paras. 23, 140].

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. 24].

GenCorp Canada Inc. v. Superintendent of Pensions (Ont.) et al. (1998), 114 O.A.C. 170; 158 D.L.R.(4th) 497 (C.A.), refd to. [para. 28].

Buschau et al. v. Rogers Communications Inc. et al. (2001), 148 B.C.A.C. 263; 243 W.A.C. 263; 195 D.L.R.(4th) 257; 2001 BCCA 16, revd. [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. [paras. 45, 178].

Lockheed Corp. v. Spink (1998), 517 U.S. 882, refd to. [para. 54].

Hockin et al. v. Bank of British Columbia et al. (1995), 57 B.C.A.C. 255; 94 W.A.C. 255; 123 D.L.R.(4th) 538 (C.A.), refd to. [para. 56].

Markle et al. v. Toronto (City) et al. (2003), 168 O.A.C. 19; 63 O.R.(3d) 321 (C.A.), dist. [para. 60].

Canadian Union of Public Employees - C.L.C., Ontario Hydro Employees Union, Local 1000 v. Ontario Hydro (1989), 33 O.A.C. 63; 68 O.R.(2d) 620 (C.A.), refd to. [para. 74].

Trent University Faculty Association v. Trent University (1997), 102 O.A.C. 346; 35 O.R.(3d) 375 (C.A.), refd to. [para. 74].

Chateauneuf v. T.S.C.O. of Canada Ltd., [1995] R.J.Q. 637; 68 Q.A.C. 1; 124 D.L.R.(4th) 308 (Que. C.A.), refd to. [para. 74].

Kemble v. Hicks, [1999] EWHC 301; [1999] O.P.L.R. 1 (Ch.), dist. [para. 89]; refd to. [para. 167].

Aegon Canada Inc. et al. v. ING Canada Inc. et al., [2003] O.T.C. 48; 34 C.C.P.B. 1 (Sup. Ct.), affd. (2003), 179 O.A.C. 196 (C.A.), refd to. [paras. 94, 172].

Sutherland v. Hudson's Bay Co. (2007), 60 C.C.E.L.(3d) 64 (Ont. Sup. Ct.), refd to. [paras. 96, 163].

Barclays Bank plc v. Holmes, [2000] EWHC 457; [2001] O.P.L.R. 37 (Ch.), refd to. [paras. 97, 166].

National Grid Co. plc v. Mayes, [2001] 2 All E.R. 417; [2001] UKHL 20, refd to. [para. 113].

Buckton, Re; Buckton v. Buckton, [1907] 2 Ch. 406, refd to. [para. 119].

Sutherland v. Hudson's Bay Co. (2006), 53 C.C.P.B. 154 (Ont. Sup. Ct.), refd to. [para. 120].

Patrick et al. v. Telus Communications Inc. (2008), 256 B.C.A.C. 277; 431 W.A.C. 277; 294 D.L.R.(4th) 506; 2008 BCCA 246, refd to. [para. 122].

Smith v. Michelin North America (Canada) Inc. (2008), 271 N.S.R.(2d) 274; 867 A.P.R. 274; 2008 NSCA 107, refd to. [para. 124].

Huang v. Telus Corp. Pension Plan (Trustees of) - see Huang et al. v. Drinkwater et al.

Huang et al. v. Drinkwater et al., [2005] 9 W.W.R. 51; 372 A.R. 336; 41 Alta. L.R.(4th) 107; 2005 ABQB 40, refd to. [para. 126].

Patrick et al. v. Telus Communications Inc. (2005), 219 B.C.A.C. 179; 361 W.A.C. 179; 49 B.C.L.R.(4th) 74; 2005 BCCA 592, refd to. [para. 126].

Burke et al. v. Hudson's Bay Co. et al. (2008), 241 O.A.C. 245; 299 D.L.R.(4th) 276; 2008 ONCA 690, refd to. [para. 126].

Ontario Teachers' Pension Plan Board v. Superintendent of Financial Services (Ont.) (2003), 36 C.C.P.B. 154 (Ont. Div. Ct.), refd to. [para. 126].

MacKinnon v. Municipal Employees Retirement Board (Ont.) et al. (2007), 232 O.A.C. 3; 288 D.L.R.(4th) 688; 2007 ONCA 874, refd to. [para. 126].

Canadian Association of Smelter and Allied Workers, Local 1 et al. v. Alcan Smelters and Chemicals Ltd. et al. (2001), 152 B.C.A.C. 117; 250 W.A.C. 117;198 D.L.R.(4th) 504; 2001 BCCA 303, refd to. [para. 126].

Bentall Corp. v. Canada Trust Co. (1996), 26 B.C.L.R.(3d) 181 (S.C.), refd to. [para. 126].

White et al. v. Halifax (Regional Municipality) Pension Committee (2007), 252 N.S.R.(2d) 39; 804 A.P.R. 39; 2007 NSCA 22, refd to. [para. 127].

Lennon v. Superintendent of Financial Services (Ont.) (2007), 231 O.A.C. 83; 87 O.R.(3d) 736 (Div. Ct.), refd to. [paras. 127, 172].

Turner v. Andrews (2001), 147 B.C.A.C. 305; 241 W.A.C. 305; 85 B.C.L.R.(3d) 32; 2001 BCCA 76, refd to. [para. 127].

Baxter et al. v. Superintendent of Financial Services (Ont.) et al. (2004), 192 O.A.C. 293; 43 C.C.P.B. 1 (Div. Ct.), refd to. [para. 172].

Sulpetro Ltd. Retirement Plan Fund (Trustee of) v. Sulpetro Ltd. (Receiver-Manager) - see Sulpetro Ltd. Retirement Plan Fund, Re.

Sulpetro Ltd. Retirement Plan Fund, Re (1990), 104 A.R. 215; 66 D.L.R.(4th) 271 (C.A.), refd to. [para. 172].

Imperial Group Pension Trust v. Imperial Tobacco Ltd., [1991] 2 All E.R. 597 (Ch. D.), refd to. [para. 188].

Bathgate v. National Hockey League Pension Society (1992), 98 D.L.R.(4th) 326 (Ont. Gen. Div.), affd. (1994), 69 O.A.C. 269; 110 D.L.R.(4th) 609 (C.A.), refd to. [para. 189].

Police Retirees of Ontario Inc. v. Ontario Municipal Employees' Retirement Board et al., [1999] O.T.C. 321; 22 C.C.P.B. 49 (Sup. Ct.), refd to. [para. 199].

Statutes Noticed:

Financial Services Commission of Ontario Act, S.O. 1997, c. 28, sect. 24 [para. 116].

Pension Benefits Act Regulations (Can.), General Regulations, Reg. 909/90, sect. 7(3) [para. 101].

Authors and Works Noticed:

Kaplan, Ari N., Pension Law (2006), pp. 404 [para. 147]; 502 ff. [para. 21].

Ontario, Expert Commission on Pensions, A Fine Balance: Safe Pensions, Affordable Plans, Fair Rules (2008), p. 78 [para. 147].

Seller, Susan Gail, Ontario Pension Law Handbook (2nd Ed. 2006), p. 61 ff. [para. 21].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 38 [para. 187]; 353 [para. 193].

Counsel:

Ari N. Kaplan, Kirk M. Baert and David Rosenfeld, for the appellants;

Ronald J. Walker, Christine P. Tabbert and Peggy A. McCallum, for the respondent, Kerry (Canada) Inc.;

Deborah McPhail, for the respondent, the Superintendent of Financial Services;

Jeff W. Galway and Kathryn M. Bush, for the intervenor, the Association of Canadian Pension Management;

Steven Barrett, for the intervenor, the Canadian Labour Congress.

Solicitors of Record:

Koskie Minsky, Toronto, Ontario, for the appellants;

Fasken Martineau DuMoulin, Toronto, Ontario, for the respondent, Kerry (Canada) Inc.;

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

Blake, Cassels & Graydon, Toronto, Ontario, for the intervenor, the Association of Canadian Pension Management;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Canadian Labour Congress.

This appeal was heard on November 18, 2008, before Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official languages on August 7, 2009, and the following opinions were filed:

Rothstein, J. (Binnie, Deschamps, Abella and Charron, JJ., concurring) - see paragraphs 1 to 133;

LeBel, J., dissenting in part (Fish, J., concurring) - see paragraphs 134 to 204.

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