Weldon v. Teck Metals Ltd. et al., 2012 BCCA 53

• Judge: Newbury, Low and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 13, 2011
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 53;(2012), 316 B.C.A.C. 98 (CA)

Weldon v. Teck Metals Ltd. (2012), 316 B.C.A.C. 98 (CA);

    537 W.A.C. 98

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.006

James Weldon, suing on his own behalf and in a representative capacity on behalf of all former members of defined benefit pension plans sponsored, directed, administered or advised by the Defendants and their predecessors who were caused by the Defendants and their predecessors to cease to participate in those defined benefit pension plans and to participate only in defined contribution pension plans on or about January 1, 1993 (respondent/plaintiff) v. Agrium Inc. (formerly Cominco Fertilizers Ltd.) (appellant/defendant) and Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited, Cominco Pension Fund Society, Cominco Pension Fund Coordinating Society and Towers Perrin Inc. (respondents/defendants)

(CA039027)

James Weldon, suing on his own behalf and in a representative capacity on behalf of all former members of defined benefit pension plans sponsored, directed, administered or advised by the Defendants and their predecessors who were caused by the Defendants and their predecessors to cease to participate in those defined benefit pension plans and to participate only in defined contribution pension plans on or about January 1, 1993 (respondent/plaintiff) v. Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited, Cominco Pension Fund Society, Cominco Pension Fund Coordinating Society (appellants/defendants) and Agrium Inc. (formerly Cominco Fertilizers Ltd.) and Towers Perrin Inc. (respondents/defendants)

(CA039028)

James Weldon, suing on his own behalf and in a representative capacity on behalf of all former members of defined benefit pension plans sponsored, directed, administered or advised by the Defendants and their predecessors who were caused by the Defendants and their predecessors to cease to participate in those defined benefit pension plans and to participate only in defined contribution pension plans on or about January 1, 1993 (respondent/plaintiff) v. Towers Perrin Inc. (appellant/defendant) and Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited, Agrium Inc. (formerly Cominco Fertilizers Ltd.), Cominco Pension Fund Society, Cominco Pension Fund Coordinating Society (respondents/defendants)

(CA039030; 2012 BCCA 53)

Indexed As: Weldon v. Teck Metals Ltd. et al.

British Columbia Court of Appeal

Newbury, Low and Levine, JJ.A.

February 2, 2012.

Summary:

Weldon alleged negligence and breach of fiduciary duty by the defendants that induced him and other members of the proposed class to accept changes in their employee pension plan. The events at issue occurred on or before January 1, 1993. Weldon's writ was filed on July 14, 2009. On June 29, 2010, Weldon applied without notice to renew the writ. A Master ordered renewal. The defendants applied to set aside the order.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 489, dismissed the application. The defendants sought leave to appeal.

The British Columbia Court of Appeal, per Hinkson, J.A., in a decision reported at (2011), 308 B.C.A.C. 105; 521 W.A.C. 105, dismissed the application. The defendants applied to vary the order.

The British Columbia Court of Appeal, in a decision reported at (2011), 311 B.C.A.C. 199; 529 W.A.C. 199, allowed the application, granting the defendants leave to appeal the order dismissing their application to set aside the order renewing Weldon's writ. The appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal.

Limitation of Actions - Topic 208

Practice - Time for determination of compliance with limitation period - [See both Practice - Topic 2408 ].

Practice - Topic 2408

Writ of summons, endorsements, originating summons and originating notices - Renewal of writ of summons, etc. - Setting aside renewal - Grounds - Weldon alleged negligence and breach of fiduciary duty by the defendants that induced him and other members of the proposed class to accept changes in their employee pension plan - The events at issue occurred on or before January 1, 1993 - Weldon's writ was filed on July 14, 2009 - On June 29, 2010, a Master renewed the writ - The defendants applied to set aside the order renewing the writ, alleging, inter alia, that Weldon had no cause of action or, that if he did, the action was statute-barred - A chambers judge dismissed the application - The British Columbia Court of Appeal dismissed the defendants' appeal - The court rejected the defendants' position that the merits of a postponement of the limitations period argument and evidence in support of the argument had to be decided when a plaintiff sought to renew a writ - Certainly, if the action, on its face, was clearly out of time and the court was satisfied that the plaintiff would not be prejudiced by determining the issue at this stage, then it might be possible and appropriate to reach the obvious conclusion - The most likely example was where the "ultimate limitation" specified in s. 8 of the Limitations Act (B.C.) had expired - Otherwise, delving into the merits was in most cases neither likely to be fair nor to advance the efficient determination of the action - See paragraphs 36 and 37.

Practice - Topic 2408

Writ of summons, endorsements, originating summons and originating notices - Renewal of writ of summons, etc. - Setting aside renewal - Grounds - Weldon alleged negligence and breach of fiduciary duty by the defendants that induced him and other members of the proposed class to accept changes in their employee pension plan - The events at issue occurred on or before January 1, 1993 - Weldon's writ was filed on July 14, 2009 - On June 29, 2010, a Master renewed the writ - The defendants applied to set aside the order renewing the writ, alleging, inter alia, that Weldon had no cause of action or, that if he did, the action was statute-barred - A chambers judge dismissed the application - The British Columbia Court of Appeal dismissed the defendants' appeal - The chambers judge had not erred in declining to decide whether the two causes of action were bound to fail because (a) aside from the postponement issue, the limitation periods in the case of the plaintiff and in the cases of other potential plaintiffs had expired and (b) the running of time for such periods could not be or had not been postponed to a date or dates within six years of bringing the action - Obviously, the onus regarding the first issue was on the defendants - For the second, it was on the plaintiff - Evidence (as opposed to mere pleadings) was always likely to be needed for the second and, often, for the first - The time for receiving such evidence was generally not the time of the renewal application - See paragraphs 38 to 40.

Cases Noticed:

Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 (S.C.), affd. (1978), 87 D.L.R.(3d) 52 (C.A.), refd to. [para. 14].

Seeliger v. Eagle Ridge Hospital et al. (2007), 248 B.C.A.C. 297; 412 W.A.C. 297; 2007 BCCA 582, refd to. [para. 14].

Sutherland v. McLeod (2004), 206 B.C.A.C. 243; 338 W.A.C. 243; 2004 BCCA 653, refd to. [para. 15].

Imperial Oil Ltd. v. Michelin North America (Canada) Inc. et al. (2008), 255 B.C.A.C. 245; 430 W.A.C. 245; 2008 BCCA 216, refd to. [para. 16].

Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc. - see Imperial Oil Ltd. v. Michelin North America (Canada) Inc. et al.

Shayler Estate v. Lee et al., [1999] B.C.T.C. Uned. 805 (S.C.), refd to. [para. 17].

Burke et al. v. Heaton et al. (2003), 177 Man.R.(2d) 213; 304 W.A.C. 213; 2003 MBCA 104, refd to. [para. 20].

Burke v. Greenberg - see Burke et al. v. Heaton et al.

Riddell et al. v. Meyers Norris Penny & Co. (2004), 186 Man.R.(2d) 132; 2004 MBQB 131, refd to. [para. 20].

Sentinel Self-Storage Corp. v. Dyregrov et al. (2003), 180 Man.R.(2d) 85; 310 W.A.C. 85; 2003 MBCA 136, refd to. [para. 20].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 20].

Knapp v. Ecclesiastical Insurance Group plc, [1997] N.L.O.R. No. 824 (C.A.), refd to. [para. 20].

New Islington and Hackney Housing Association Ltd. v. Pollard Thomas and Edwards Ltd., [2000] E.W.J. No. 7012 (Q.B.), refd to. [para. 20].

410727 B.C. Ltd. et al. v. Dayhu Investments Ltd. et al. (2004), 201 B.C.A.C. 122; 328 W.A.C. 122; 2004 BCCA 379, leave to appeal dismissed (2005), 334 N.R. 194; 219 B.C.A.C. 320; 361 W.A.C. 320 (S.C.C.), refd to. [para. 20].

Cartledge v. Jopling (E.) & Sons Ltd., [1963] 1 All E.R. 341 (H.L.), refd to. [para. 20].

Charlton v. Canada Post Corp., [2009] O.T.C. Uned. 121 (Sup. Ct.), refd to. [para. 21].

Spinks v. Canada, [1996] 2 F.C. 563; 195 N.R. 184; 134 D.L.R.(4th) 223 (F.C.A.), refd to. [para. 22].

Huang et al. v. Drinkwater et al. (2005), 372 A.R. 336; 2005 ABQB 40, refd to. [para. 23].

Cooke v. Gill (1873), L.R. 8 C.P. 107, refd to. [para. 24].

Arishenkoff et al. v. British Columbia (2004), 198 B.C.A.C. 164; 324 W.A.C. 164; 2004 BCCA 299, refd to. [para. 24].

Wyman and Moscrop Realty Ltd. v. Vancouver Real Estate Board (1957), 8 D.L.R.(2d) 724 (B.C.C.A.), refd to. [para. 24].

Scarmar Construction Ltd. v. Geddes Contracting Co. (1989), 61 D.L.R.(4th) 328 (B.C.C.A.), refd to. [para. 24].

Inmet Mining Corp. v. Homestake Canada Inc. (2003), 189 B.C.A.C. 251; 309 W.A.C. 251; 2003 BCCA 610, refd to. [para. 24].

Kingu v. Walmar Ventures Ltd. (1986), 10 B.C.L.R.(2d) 15 (C.A.), refd to. [para. 25].

Edwards Estate v. Beckmann et al., [2008] B.C.T.C. Uned. B12; 2008 BCSC 323, refd to. [para. 26].

Kennedy v. Beckmann - see Edwards Estate v. Beckmann et al.

Kruk v. Ho et al. (2008), 255 B.C.A.C. 223; 430 W.A.C. 223; 2008 BCCA 201, refd to. [para. 26].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 27].

Levitt v. Carr et al. (1992), 12 B.C.A.C. 27; 23 W.A.C. 27; 66 B.C.L.R.(2d) 58 (C.A.), refd to. [para. 27].

Perron v. R.J.R.-MacDonald Inc. (1990), 66 D.L.R.(4th) 132 (B.C.C.A.), refd to. [para. 29].

Pickton et al. v. British Columbia (Minister for Public Safety) et al., [2011] B.C.T.C. Uned. 312; 2011 BCSC 312, refd to. [para. 31].

MacKinnon v. National Money Mart Co. et al. (2004), 203 B.C.A.C. 85; 332 W.A.C. 85; 2004 BCCA 472, refd to. [para. 32].

MacKinnon v. Instaloans Financial Solution Centres (Kelowna) Ltd. - see MacKinnon v. National Money Mart Co. et al.

Dahl et al. v. Royal Bank of Canada et al. (2006), 229 B.C.A.C. 263; 379 W.A.C. 263; 2006 BCCA 369, refd to. [para. 39].

Authors and Works Noticed:

British Columbia, Law Reform Commission, Report on Limitations: Part 2 - General (1974), p. 80-3 [para. 27].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), p. 1208 [para. 26].

Counsel:

I.G. Nathanson, Q.C., and G.B. Gomery, Q.C., for the appellants, Teck Metals Ltd., Teck Resources Limited, Cominco Resources International Limited, CESL Limited, Cominco Pension Fund Society, Cominco Pension Fund Coordinating Society;

C.A.B. Ferris and K. Bourchier, for Agrium Inc.;

M.L. Bromm, for Towers Perrin Inc.;

R.M. Mogerman, J. Winstanley and S.A. Quelch, for James Weldon.

This appeal was heard at Vancouver, B.C., on December 13, 2011, by Newbury, Low and Levine, JJ.A., of the British Columbia Court of Appeal. On February 2, 2012, Newbury, J.A., delivered the following reasons for judgment for the court.