Smith v. Michelin North America (Canada) Inc., 2008 NSSC 66

• Judge: Hood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 10, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 66;(2008), 262 N.S.R.(2d) 337 (SC)

Smith v. Michelin North Am. (2008), 262 N.S.R.(2d) 337 (SC);

    839 A.P.R. 337

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MR.009

Everett Smith (applicant) v. Michelin North America (Canada) Inc. (respondent)

(SH 248992; 2008 NSSC 66)

Indexed As: Smith v. Michelin North America (Canada) Inc.

Nova Scotia Supreme Court

Hood, J.

March 10, 2008.

Summary:

At issue on Smith's application was whether Michelin's defined benefits pension plan entitled it to take over $268 Million in contribution holidays in recognition of actuarial surpluses in the plan.

The Nova Scotia Supreme Court, in a judgment reported (2007), 259 N.S.R.(2d) 109; 828 A.P.R. 109, interpreted the plan and determined that Michelin was entitled to the contribution holidays taken. The issue of costs was deferred.

The Nova Scotia Supreme Court held that only Michelin, as the successful party, was entitled to costs. The court awarded $500,000 in costs, 50% of which was payable out of the pension fund and 50% payable personally by Smith.

Master and Servant - Topic 1953

Remuneration - Pension or retirement benefits - Costs or expenses payable from plan - [See Practice - Topic 7020 ].

Practice - Topic 7020

Costs - Party and party costs - Entitlement to party and party costs - Successful party - General principles - At issue on Smith's application was whether Michelin's defined benefits pension plan entitled it to take over $268 Million in contribution holidays in recognition of actuarial surpluses in the plan - Smith was acting as representative for all persons having an interest in the plan - The court interpreted the plan and determined that Michelin was entitled to the contribution holidays taken - Smith sought to have the solicitor-client costs of both parties paid out of the pension fund - The Nova Scotia Supreme Court held that only Michelin, as the successful party, was entitled to costs - This was an adversarial proceeding, not one where the real issue was the interpretation or administration of the pension fund - A successful result by Smith would have been severely adverse to Michelin - Accordingly, costs should be awarded in the usual fashion - The court awarded $500,000 in costs under Tariff A, since this was a complex and lengthy matter - Such amount was a substantial contribution to Michelin's legal costs - The court ordered 50% payable out of the pension fund and 50% payable personally by Smith.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 7020 ].

Practice - Topic 7845

Costs - Costs out of a fund (incl. public fund) - When appropriate - [See Practice - Topic 7020 ].

Cases Noticed:

White et al. v. Halifax (Regional Municipality) Pension Committee (2007), 252 N.S.R.(2d) 39; 804 A.P.R. 39; 2007 CarswellNS 68; 2007 NSCA 22, refd to. [para. 10].

Buckton, Re, [1907] Ch. 406, refd to. [para. 14].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2007), 229 O.A.C. 82; 2007 CarswellOnt 5511; 2007 ONCA 605, refd to. [para. 18].

Kerry (Canada) Inc. v. Superintendent of Financial Services (Ont.) - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Sutherland et al. v. Hudson's Bay Co. et al., [2006] O.T.C. Uned. 572 (Sup. Ct.), refd to. [para. 18].

Spectrum Pension Plan (Administrator) v. Superintendent of Pensions (N.S.) et al. (1997), 161 N.S.R.(2d) 1; 477 A.P.R. 1; 149 D.L.R.(4th) 200; 1997 CarswellNS 246 (C.A.), refd to. [para. 27].

Reevie v. Montreal Trust Co. (1984), 46 O.R.(2d) 667; 1984 CarswellOnt 103 (H.C.J.), refd to. [para. 27].

Sulpetro Ltd. Retirement Plan Fund, Re (1990), 104 A.R. 215; 66 D.L.R.(4th) 271; 1990 CarswellAlta 37 (C.A.), refd to. [para. 27].

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 CarswellBC 887 (C.A.), refd to. [para. 27].

Burke et al. v. Governor and Co. of Adventurers of England Trading Into Hudson's Bay et al., [2003] O.A.C. Uned. 295; 37 C.C.P.B. 14; 2003 CarswellOnt 3142 (C.A.), refd to. [para. 27].

Alberta Teachers' Association v. Calgary Board of Education, [2006] A.R. Uned. 227; 2006 CarswellAlta 359; 2006 ABQB 171, refd to. [para. 27].

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) 75; 2005 CarswellBC 2882 (C.A.), refd to. [para. 27].

Patrick et al. v. Telus Communications Inc., [2006] B.C.T.C. Uned. D46; 54 C.C.P.B. 70; 2006 CarswellBC 2154 (S.C.), refd to. [para. 27].

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. 28].

Stearns Catalytic Pension Plans, Re, [1994] 2 S.C.R. 611; 168 N.R. 81; 155 A.R. 81; 73 W.A.C. 81; 1994 CarswellAlta 138, refd to. [para. 29].

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

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 47].

Keating et al. v. Bragg et al. (1997), 160 N.S.R.(2d) 363; 473 A.P.R. 363 (C.A.), refd to. [para. 50].

Murray Estate, Re (2000), 188 N.S.R.(2d) 147; 587 A.P.R. 147 (S.C.), refd to. [para. 51].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 55].

Counsel:

Paul G. Vogel, Iain D. Sneddon and Ronald A. Pink, Q.C., for the applicant;

Brett Ledger and Peter McLellan, Q.C., for the respondent.

This matter was heard by way of written submissions before Hood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 10, 2008.