Anthony Guindon

The employer, Hudson's Bay Company, cross-appealed a trial judgment declaring that it was not a beneficiary of a pension plan trust fund and not entitled to surplus assets on plan termination.

The Court of Appeal applied the framework from Schmidt v. Air Products of Canada Ltd. and found that the original trust agreement created an irrevocable trust for the exclusive benefit of the plan members.

The Court distinguished the recent Supreme Court of Canada decision in Burke v. Hudson's Bay Co., noting that the originating documents in this case contained exclusive benefit language that precluded the employer from claiming the surplus.

The cross-appeal was dismissed.

Following the disposition of four appeals, the Court of Appeal fixed the costs of the appeal and the underlying proceedings.

The appellant was awarded costs on a full indemnity basis, with the respondents ordered to pay a portion on a partial indemnity basis and the remainder to be paid from the Fund.

The court fixed the costs of the appeal at $75,000, and the costs of the underlying Rule 10 and Rule 21 motions at $135,000.

The plaintiff, a member of the OMERS pension plan, brought an action on behalf of plan members against the OMERS Board, two corporations, and three former OMERS employees, alleging breach of fiduciary duty, knowing receipt of trust property, knowing assistance, and unjust enrichment arising from the outsourcing of real estate management.

The defendants successfully moved to strike several claims under Rule 21.

On appeal, the Court of Appeal held that while some breach of fiduciary duty claims were properly struck, the claims for knowing receipt, knowing assistance, and unjust enrichment should be allowed to proceed against all defendants.

The Court also held that the plaintiff was entitled to costs from the pension fund on a full indemnity basis, as the action was brought to ensure the due administration of the fund and for the benefit of all beneficiaries.