Deborah Joan McPhail

The Ontario Nurses Association (ONA) brought a motion under the CCAA seeking an order to restructure the Victorian Order of Nurses for Canada (VON Canada) pension plan.

The ONA proposed transferring assets and liabilities related to VON Ontario employees into a new pension plan and sought a declaration that VON Ontario was not jointly and severally liable for any pension deficits.

The court dismissed the motion, finding that the ONA's proposal did not advance the CCAA's policy objectives of fostering going concern restructuring and avoiding liquidation.

The court also applied the business judgment rule, deferring to VON Canada's board decision to maintain the status quo, and deemed the request for a declaration on future liabilities premature and speculative.

The applicant, a licensed life insurance agent, appealed a decision suspending his licence for nine months and imposing conditions for a further 24 months.

He brought a motion for a stay of the suspension order pending the determination of his appeal.

Applying the RJR MacDonald test, the Financial Services Tribunal found that while there was a serious issue to be tried, the applicant failed to establish that he would suffer irreparable harm if the stay were denied.

The evidence of potential job loss was speculative, and the balance of convenience favoured protecting the public interest.

The application for a stay was dismissed.

The appellant appealed a decision of the Financial Services Tribunal revoking his mortgage broker licence.

The Tribunal found him unsuitable to remain licensed after he registered mortgages based on forged signatures without verifying the identity or consent of the client's wife.

The Divisional Court upheld the Tribunal's findings on misconduct but found the Tribunal failed to adequately consider lesser penalties than revocation, especially given the appellant's lack of prior disciplinary record.

The appeal was allowed in part, and the matter was remitted to the Tribunal to reconsider the penalty.

The applicant requested a hearing to direct the Superintendent of Financial Services to order his former employer to permit him to retroactively purchase pensionable service.

The applicant argued that the employer contravened section 25 of the Pension Benefits Act by failing to provide him with information about his eligibility to join the pension plan when his employment was transferred following an asset sale.

The Tribunal found that the applicant was already eligible to join the predecessor plan, knew of his continuing eligibility, and had previously waived membership.

Consequently, section 25 did not apply to him.

The Tribunal concluded there was no contravention of the Act and ordered the Superintendent to carry out the Notice of Intended Decision refusing the order.

The Superintendent of Financial Services issued a Notice of Proposal to impose an administrative monetary penalty of $1,000 on the applicant for contravening the Insurance Act.

The applicant requested a hearing but failed to attend the pre-hearing conference and the scheduled hearing.

The Financial Services Tribunal dismissed the proceeding due to the applicant's non-attendance and directed the Superintendent to carry out the proposal to impose the penalty.

The appellant Superintendent of Financial Services appealed a CCAA judge's order lifting a stay of proceedings and ordering the debtor companies into bankruptcy.

The appellant argued that a deemed trust arose under the Pension Benefits Act upon the wind up of two pension plans during the CCAA proceedings, and that this trust should have priority over secured creditors.

The Court of Appeal dismissed the appeal, holding that the CCAA judge reasonably exercised his discretion to transition the proceedings to bankruptcy under the BIA, where provincial deemed trusts are rendered inoperative by the doctrine of federal paramountcy.

The appellant employer appealed decisions of the Financial Services Tribunal ordering a partial windup of its pension plan following a plant closure.

The Tribunal found that a reorganization had occurred prior to the closure and included employees laid off during that period in the windup group.

The Divisional Court dismissed the appeal, finding the Tribunal's determination that a reorganization occurred and its definition of the windup group were reasonable and supported by the evidence.

The court also upheld the Tribunal's jurisdictional rulings regarding the Superintendent's authority.

The defendant was charged under the Insurance Act of Ontario with acting as an unlicensed insurance agent.

The prosecution alleged that the defendant offered or assumed to act in the negotiation of insurance on behalf of an insurer without being a licensed agent or broker.

The defendant claimed she was merely a go-between connecting the complainant with another party and was at best a salesperson.

The court found that the defendant engaged in multiple communications, discussions, and meetings with the complainant, took copies of his driver's license and vehicle ownership, arranged for delivery of fraudulent insurance documents, and received payment.

The court rejected the defendant's credibility and found her guilty of acting as an unlicensed insurance agent in violation of section 393(23) of the Insurance Act.

The applicant insurer sought judicial review of a director's delegate's decision upholding an arbitrator's finding that the insurer's refusal to designate the respondent as catastrophically impaired did not trigger the two-year limitation period under s. 281.1(1) of the Insurance Act.

The Divisional Court held that the standard of review was reasonableness, rejecting the insurer's argument for correctness.

The Court found the director's delegate reasonably concluded that a catastrophic impairment determination is not a benefit itself, and the insurer's denial letter did not constitute a clear and unequivocal refusal of a benefit.

The application for judicial review was dismissed.

The applicant insurer sought judicial review of a FSCO Director's Delegate decision upholding an Arbitrator's finding that the respondent suffered a catastrophic impairment.

The respondent had recorded a Glasgow Coma Scale (GCS) score of 9 several days after a motor vehicle accident, which the insurer argued was confounded by medication and other injuries rather than brain impairment.

The Divisional Court dismissed the application, holding that the standard of review is reasonableness and that the SABS regulation uses the GCS score as a proxy measurement without requiring an inquiry into the patient's prognosis or the specific cause of the lowered score.

The appellant filed a Request for Review of the Tribunal's Notice of Dismissal, which had dismissed her Notice of Appeal for lack of jurisdiction.

The Tribunal applied the threshold test under its Rules of Practice and Procedure, which requires an applicant to put forward new evidence or arguments not reasonably available at the time of the original hearing.

The Tribunal found that the appellant merely repeated arguments previously made and dismissed.

Consequently, the Request for Review was dismissed for failing to meet the threshold test.

The appellant appealed a decision of the Financial Services Tribunal dismissing his claim for a pension from his former employer.

The appellant argued that the pension plan's locking-in provision was clear and entitled him to a pension, or alternatively, that the ambiguous provision should be interpreted in his favour using the contra proferentem rule.

The Divisional Court dismissed the appeal, finding the Tribunal's interpretation of the ambiguous provision was reasonable and consistent with the legislative context, and that the Tribunal made no error in declining to apply the contra proferentem principle.

In CCAA proceedings involving several affiliated corporate applicants, the monitor sought court approval of a settlement resolving competing priority claims over estate funds among pension plans, a U.S. bankruptcy trustee, secured lenders, and other creditors.

The settlement provided for partial distributions to pension beneficiaries and retired executives, with the remaining funds payable to the U.S. trustee for the bankruptcy estates of related U.S. debtors.

The court held the settlement was a reasonable and proportionate resolution that avoided costly and protracted litigation over competing statutory deemed trusts and secured claims.

A related motion by the pension plan administrator sought amendment of the salaried pension plan to implement the settlement distribution scheme.

Relying on its broad discretionary authority under s. 11 of the Companies’ Creditors Arrangement Act, the court ordered the amendment where notice had been given and no affected party objected.

The applicant filed a Request for Review of a previous Tribunal decision regarding her pension benefits.

She argued that she was entitled to immediate vesting and a transfer of her deferred pension to a locked-in RRSP based on the terms of the pension plan and subsequent amendments to the Pension Benefits Act.

The Tribunal dismissed the request, finding that the applicant failed to meet the threshold for review.

The Tribunal held that the applicant was attempting to reargue the case and that her new arguments regarding immediate vesting failed because she did not meet the statutory requirement of 24 months of continuous membership, and the legislative amendments were not retroactive.

The applicant challenged the calculation and transfer of her defined contribution pension account following the termination of her employment.

She argued her employment ended on the date of her termination meeting, making subsequent pension deductions unauthorized, and that her funds should have been transferred to a locked-in RRSP.

The Tribunal found that her employment continued through her statutory notice period, making the deductions valid.

Furthermore, because she had less than two years of plan membership, the Pension Benefits Act and the plan text did not require the funds to be transferred to a locked-in account.

The application was dismissed without costs.

The self-represented applicant withdrew her request for a hearing regarding spousal pension benefits while experiencing considerable distress during the proceeding.

The following day, she requested to reopen the matter and rescind her withdrawal.

The respondent and added party did not oppose the request.

The Tribunal granted the motion to rescind the withdrawal, noting the unique circumstances and the applicant's apparent distress.

The Tribunal also rescinded the permanent sealing and anonymization orders pending the recommencement of the hearing.

The applicant filed a motion requesting disclosure of certain documents and information from the added party, Holcim, regarding contributions and withdrawals from her pension plan.

The Tribunal treated the requests as interrogatories and document production requests under the Tribunal's Rules of Practice and Procedure.

The Tribunal dismissed the motion, finding that the requested information had either already been provided, was irrelevant to the issues in the proceeding, or offended the principle of proportionality.

The self-represented applicant filed a Request for Review of a Financial Services Tribunal decision regarding the University of Toronto Pension Plan.

Although the applicant missed the filing deadline by a few hours, the Tribunal exercised its discretion to extend the time for filing.

However, the Tribunal dismissed the Request for Review on the merits, finding that the applicant failed to meet the threshold for review.

The applicant merely attempted to reargue issues already decided and did not present any new evidence or arguments that were not reasonably available at the time of the original hearing.

The applicant brought a motion before the Financial Services Tribunal seeking an order to compel the union to respond to 27 interrogatories and produce two documents.

The underlying dispute concerned the applicant's pension entitlements and access to an early retirement window following her dismissal.

The Tribunal dismissed the motion, finding that the majority of the interrogatories related to the applicant's employment grievance rather than the pension issues within the Tribunal's jurisdiction, and thus failed the Monsanto test for arguable relevance.

The remaining interrogatories were either already answered or lacked sufficient particularization.

SCI Group Inc. brought a motion to add an estoppel issue to the pending hearing regarding the Superintendent's refusal to consent to a pension asset transfer from the BCE Plan to the Progistix Plan.

SCI also sought additional documentary production from BCE related to the estoppel issue.

BCE opposed the motion, arguing the Tribunal lacked jurisdiction to consider estoppel and that there was no factual basis for the claim.

The Tribunal held it had jurisdiction to consider estoppel under the Pension Benefits Act and found it premature to dismiss the issue on its factual merits.

The Tribunal granted the motion to add the estoppel issue and ordered limited production of documents relevant to the alleged representations.