Christopher P. Naudie

Following a successful appeal by the defendant employer regarding a pension plan surplus dispute, the parties made submissions on costs.

The Court of Appeal determined that the litigation was aimed at ensuring the proper administration of the pension trust fund and would have benefited all transferred employees had the plaintiffs been successful.

Consequently, the court ordered that the costs of both parties for the appeal and cross-appeal be paid from the pension fund on a full indemnity basis.

The court fixed the employer's costs at $140,000 and the representative plaintiffs' costs at $43,000, and referred the determination of the reasonableness of the trial costs to the trial judge.

The Hudson's Bay Company sold a division, transferring employees to a successor employer who established a new pension plan.

The transferred employees sought a pro rata share of the actuarial surplus from the original pension plan and challenged the employer's payment of plan expenses from the pension fund.

The Court of Appeal held that under the plan documentation, the transferred employees had no entitlement to the surplus, and thus the employer did not breach any trust by not transferring it.

Furthermore, the court found that the employer was legally entitled to pay plan administration and fund management expenses from the pension fund based on valid amendments to the trust agreements.

The defendant sought leave to appeal an order certifying a class action alleging vertical price-fixing conspiracies in the sale of engineering resins.

The plaintiff cross-appealed, seeking to expand the class definition to include Tier 1 manufacturers.

The Divisional Court dismissed both motions for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's discretionary, fact-driven conclusions regarding the class definition and the common issues of loss and liability.

The appellants, Deloitte & Touche LLP and two of its partners, appealed an order enforcing letters rogatory issued by a U.S. court in a securities fraud class action against Nortel Networks Corp. The letters rogatory sought the production of extensive audit working papers and the testimony of the two partners.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that the evidence was relevant, crucial, otherwise unavailable, and that its production would not be unduly burdensome or infringe Canadian sovereignty.