Alberta Municipal Retired Police Officers' Mutual Benefit Society et al. v. Alberta et al., (2010) 504 A.R. 41 (QB)

• Judge: Kent, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 06, 2010
• Citations: (2010), 504 A.R. 41 (QB);2010 ABQB 458

Retired Police Officers' Mutual Benefit Soc. v. Alta. (2010), 504 A.R. 41 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AU.056

The Alberta Municipal Retired Police Officers' Mutual Benefit Society, Ian MacDonald, Marcel St. Onge, Harley Phillips, Lance Mayer and Vern MacIntosh (plaintiffs) v. Her Majesty the Queen in Right of Alberta, the Alberta Pensions Services Corporation, City of Calgary, City of Edmonton, City of Lethbridge, City of Medicine Hat and Town of Taber (defendants)

(0701 06123; 2010 ABQB 458)

Indexed As: Alberta Municipal Retired Police Officers' Mutual Benefit Society et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Kent, J.

July 6, 2010.

Summary:

The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs applied for certification of an action as a class action pursuant to the Class Proceedings Act. The individual plaintiffs were retired police officers of various municipalities. They had complaints about the amount of pension benefits they and other retired officers received. The causes of action alleged were breach of fiduciary duty by the municipalities for failing to provide material information, breach of fiduciary duty and negligence by the Province and the Alberta Pension Services Corporation (APS), negligent misrepresentation by all defendants, providing negligent advice by all defendants, breach of fiduciary duty by the Province and APS for failing properly to fund and preserve the Plan, unjust enrichment of the Province and the APS by misappropriation of pension contributions, breach of duty by the Province and APS for using improper actuarial methods and equitable fraud and fraudulent concealment by all defendants. The defendants opposed the application and applied to strike the plaintiffs' Third Amended Statement of Claim pursuant to rule 129 of the Alberta Rules of Court. They also applied pursuant to rule 159 for summary judgment against the individual plaintiffs respecting a limitations issue.

The Alberta Court of Queen's Bench struck the claims respecting reduction of pension benefits, the fiduciary duty claims against all defendants and the claim for unjust enrichment pursuant to rule 129. Summary judgment was granted to the defendants on all other claims except negligent use of outdated actuarial tables. The application for certification was dismissed.

Crown - Topic 1604

Torts by and against Crown - Actions against Crown - Public authority protection legislation - Persons or acts protected - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) alleging, inter alia, negligence, breach of fiduciary duty, negligent misrepresentation, providing negligent advice and unjust enrichment - The defendants sought to strike these claims - Alberta argued that it was immune from those claims by virtue of s. 15(3) of the Public Sector Pension Plans (Legislative Provisions) Regulation which read "... no action lies against the Minister, the Minister of Finance, a Board or the Crown in respect of: (a) any representation made, or any other information provided, by any person to any other person in respect of benefits or other entitlements under the Plan or this Regulation, or (b) any failure to provide any information in connection with the Plan, or to provide it on time." - The Alberta Court of Queen's Bench held that there was no legislative authority sufficiently specific to allow for the complete immunity contemplated by the Regulation - It was not plain and obvious that the plaintiffs' claims were barred on this ground - See paragraphs 60 to 70.

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) alleging, inter alia, negligent implementation of the pension plan with the Canada Pension Plan (CPP) and Old Age Security (OAS) and negligent use of out-of-date actuarial tables to calculate the officers' contributions to their pension plans - Relying on Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality) (SCC), the defendants argued that these issues were a matter of legislation and that the plaintiffs could not sue Alberta for exercising its legislative authority - The defendants sought to strike these claims - The Alberta Court of Queen's Bench agreed respecting the claim respecting implementation of the plan - It was plain and obvious that this claim could not succeed - However, the choice of actuarial tables to calculate pension contributions was more operational in nature or, at least, it was not plain and obvious that it was policy-based - Therefore, that claim was not struck - See paragraphs 19 to 31.

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - [See Crown - Topic 1604 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) - They alleged, inter alia, that Alberta's role as administrator of the officers' pension plan gave rise to a fiduciary obligation - The Pension Act provided that the Minister of Finance held the assets of the plan in trust, that participation in the plan was mandatory for officers and that the Act and Regulation applied only to those officers - The defendants applied to strike the claim - The Alberta Court of Queen's Bench held that it was plain and obvious that there was no fiduciary duty on Alberta in this case - Alberta, through the Alberta Pension Services Corp., was responsible for administering the plan at large for all plan members - See paragraphs 32 to 45.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) - They alleged that "vulnerability, trust, complexity of the subject matter, and the expectation that one party will act in the best interests of another" as indicia of the alleged fiduciary obligation by the municipalities - The defendants applied to strike the claim - The Alberta Court of Queen's Bench held that the municipalities' role in the administration of the pension plan was not sufficient to found a fiduciary duty - The municipalities did not administer the plan - They did not hold any of the plan assets, they did not make any decisions as to the terms of the plan and they did not calculate pension benefits or contributions - Their role was limited to disseminating information about the plan - They did this based on documents published by Alberta through the Alberta Pension Service Corp. - It was plain and obvious that a breach of fiduciary duty claim against the municipalities could not succeed - See paragraph 46.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See first Equity - Topic 3607 ].

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) alleging, inter alia, negligence, breach of fiduciary duty, negligent misrepresentation, providing negligent advice and unjust enrichment - The defendants sought to strike these claims, arguing, inter alia, that the claims of the individual plaintiffs were barred by the applicable limitation periods - The plaintiffs relied on s. 4(1) of the Limitations Act which suspended the limitation period if there had been fraudulent concealment by a defendant - The Alberta Court of Queen's Bench held that there was no evidence of fraudulent concealment - To the contrary, each individual plaintiff was clearly advised of what his pension payments would be, both before and after age 65 - There was no evidence that Alberta deliberately concealed the method of calculation of the pensions - See paragraphs 94 to 99.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) alleging, inter alia, negligence, breach of fiduciary duty, negligent misrepresentation, providing negligent advice and unjust enrichment - The plaintiffs sought to certify the action as a class action - The Alberta Court of Queen's Bench dismissed the application - There were not substantial common issues amongst the plaintiffs - Each retired police officer's complaint was about his or her pension: what he or she was told and how his or her pension was calculated based upon his or her individual circumstances - Leaving each individual plaintiff to pursue his claim might, at first blush, appear to be expensive with only a nominal return - However, having one retiree proceed, with the support of others, would result in a decision which would provide guidance to others - This alternate procedure, plus the lack of sufficient common issues, militated strongly against a class action - See paragraphs 105 to 132.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - The Alberta Municipal Retired Police Officers' Mutual Benefit Society and the individual plaintiffs (retired police officers of various municipalities) had complaints about their pension benefits - They sued Alberta and several municipalities (the defendants) alleging, inter alia, negligence, breach of fiduciary duty, negligent misrepresentation, providing negligent advice and unjust enrichment - The plaintiffs sought to certify the action as a class action - It argued that the plaintiff Society, which was formed for the purposes of this litigation so it could properly represent the classes' interests, was the appropriate representative - The defendants argued that the Society was not necessary and would not be the appropriate representative - They were concerned about the ability to recover their costs from the Society - Further, since only the representative could be discovered and the Society had only a single purpose, to be a plaintiff in this action, the defendants would be deprived of appropriate discovery - The Alberta Court of Queen's Bench opined that the Society was not the appropriate representative - There was no reason why the individual plaintiffs could not be the representatives - See paragraphs 133 to 137.

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See Crown - Topic 1604 ].

Cases Noticed:

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957, refd to. [para. 19].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 24].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), refd to. [para. 26].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 34].

Gorecki v. Canada (Attorney General) (2006), 208 O.A.C. 368; 265 D.L.R.(4th) 206 (C.A.), refd to. [para. 37].

Hogan et al. v. Newfoundland (Attorney General) (2000), 189 Nfld. & P.E.I.R. 183; 571 A.P.R. 183; 2000 NFCA 12, refd to. [para. 38].

Callie v. Canada, [1991] 2 F.C. 379; 41 F.T.R. 59 (T.D.), refd to. [para. 38].

Authorson v. Canada (Attorney General) (2002), 157 O.A.C. 278; 215 D.L.R.(4th) 496; 58 O.R.(3d) 417 (C.A.), dist. [para. 39].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, dist. [para. 43].

Hovsepian et al. v. Westfair Foods Ltd. et al. (2001), 296 A.R. 283; 2001 ABQB 700, refd to. [para. 48].

Del Bianco et al. v. 935074 Alberta Ltd. et al., [2007] A.R. Uned. 556; 2007 ABQB 150, refd to. [para. 49].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2009), 466 A.R. 1; 2009 ABQB 149, refd to. [para. 50].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 52].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Nicholls v. Cumming (1877), 1 S.C.R. 395, refd to. [para. 55].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243, refd to. [para. 63].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 64].

Ukrainian (Fort William) Credit Union Ltd. (Liquidation) v. Nesbitt, Burns Ltd. et al. (1997), 104 O.A.C. 273; 36 O.R.(3d) 311 (C.A.), refd to. [para. 65].

International Union of Operating Engineers, Local 968 v. Labour Relations Board (N.S.) and Michelin Tires Manufacturing Co. of Canada Ltd. (1973), 14 N.S.R.(2d) 271; 11 A.P.R. 271 (T.D.), refd to. [para. 67].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2008), 453 A.R. 1; 2008 ABQB 490, refd to. [para. 72].

Alberta Society for Pension Reform v. Alberta et al. (2007), 450 A.R. 191; 2008 ABQB 74, refd to. [para. 74].

Huang et al. v. Drinkwater et al. (2005), 372 A.R. 336; 2005 ABQB 40, refd to. [para. 79].

Huang v. Telus Corp. Pension Plan - see Huang et al. v. Drinkwater et al.

Seidel v. Kerr et al. (2003), 330 A.R. 284; 299 W.A.C. 284; 2003 ABCA 267, refd to. [para. 80].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 58 Alta. L.R.(4th) 23; 2006 ABQB 104, refd to. [para. 91].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359; 2000 ABCA 97, refd to. [para. 95].

Ambrozic v. Burcevski et al. (2008), 433 A.R. 25; 429 W.A.C. 25; 2008 ABCA 194, refd to. [para. 95].

King v. Parsons (Victor) & Co., [1973] 1 All E.R. 206 (C.A.), refd to. [para. 97].

Yellowbird v. Samson Cree Nation No. 444 et al. (2006), 405 A.R. 333; 2006 ABQB 434, affd. (2008), 433 A.R. 350; 429 W.A.C. 350; 56 C.P.C.(6th) 24; 92 Alta. L.R.(4th) 235; 2008 ABCA 270, refd to. [para. 101].

McLean v. Alberta (Minister of Justice) et al. (2009), 470 A.R. 371; 2009 ABQB 102, dist. [para. 103].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 110].

Nadolny v. Peel (Region), [2009] O.T.C. Uned. N12; 78 C.P.C.(6th) 252 (Sup. Ct.), refd to. [para. 113].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 117].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 117].

London Loan & Savings Co. of Canada v. Brichenden, [1934] 3 D.L.R. 465 (P.C.), refd to. [para. 118].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 236 D.L.R.(4th) 348 (Sup. Ct.), refd to. [para. 119].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 125].

Owners-Condominium Plan No. 0020701 v. Investplan Properties Inc. et al., [2006] A.R. Uned. 192; 57 Alta. L.R.(4th) 310; 2006 ABQB 224, refd to. [para. 127].

Lacroix et al. v. Canada Mortgage and Housing Corp. et al., [2009] O.T.C. Uned. 262; 68 C.P.C.(6th) 111 (Sup. Ct.), refd to. [para. 131].

Nette v. Stiles et al. (2010), 489 A.R. 347; 2010 ABQB 14, refd to. [para. 131].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2009), 469 A.R. 270; 470 W.A.C. 270; 2009 ABCA 403, dist. [para. 136].

Authors and Works Noticed:

Driedger, Elmer A., Subordinate Legislation (1960), 38 Can. Bar Rev. 1, pp. 28 to 30 [para. 67].

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), pp. 163 to 165 [para. 21].

Counsel:

Douglas A. McGillivray, Q.C., Kevin Burron and David de Groot (Burnet, Duckworth & Palmer LLP), for the plaintiff/respondent;

Jeffrey H. Mayan and Lionel Whittaker, Alberta Justice, for the defendants/applicants;

Ward K. Branch (Branch MacMaster), for the defendants/applicants;

Michael F. Casey (Field LLP), for the defendants/applicants;

Lee Fenger, City of Edmonton, Law Branch, for the defendants/applicants;

Havelock B. Madill (Brownlee LLP), for the defendants/applicants);

David J. Lewis, City of Calgary, Law Department, for the defendants/applicants.

This application was heard on March 15 and 16, 2010, before Kent, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on July 6, 2010.