Deborah Joan McPhail

The applicant sought an early retirement pension from the Rio Tinto Alcan pension plan.

He had left Alcan in 1999 when his division was sold to Eaglebrook, and later became an employee of Kemira when Eaglebrook sold the business.

Alcan refused the pension application, arguing that under s. 80 of the Pension Benefits Act, the applicant was deemed to be continuously employed by a successor employer and could not collect a pension until he retired from Kemira.

The Financial Services Tribunal held that s. 80(3) did not bar the applicant from claiming his pension at age 55, as Alcan had explicitly agreed to this option at the time of the original sale in compliance with an order from the Régie des rentes du Québec.

The Tribunal directed the Superintendent to order Alcan to commence payment of the pension.

The Superintendent of Financial Services issued a Notice of Intended Decision to partially wind up the Imperial Oil Limited Retirement Plan following the relocation of the applicant's head office.

The applicant reached settlements with all affected members except the respondent, who sought a partial wind-up to receive enhanced pension benefits from the plan rather than a lump sum payment directly from the applicant.

The Tribunal declined to exercise its discretion to order a partial wind-up, finding that the applicant's irrevocable offer of a lump sum payment provided the respondent with the equivalent value of any additional benefits she would have received upon a partial wind-up.

On an unopposed insolvency motion under Part III of the Bankruptcy and Insolvency Act, the moving parties sought sanction of an amended consolidated proposal with substantive consolidation and a broad third-party release.

The court applied the section 59(2) reasonableness-and-benefit test, considered good faith and creditor voting support, and accepted that the proposal met statutory requirements.

The court held that third-party releases were permissible in the circumstances and interpreted the statute harmoniously with restructuring principles applied under related insolvency legislation.

Applying the Metcalfe criteria, the court found the release was necessary, supported by tangible contributions, and beneficial to creditors generally compared with bankruptcy alternatives.

The sanction order was granted.

The appellant, Hydro One Inc., appealed a Divisional Court decision upholding a Financial Services Tribunal order for a partial wind-up of its pension plan under s. 69(1)(d) of the Pension Benefits Act.

Following a corporate merger, the employment of 73 Management Compensation Plan (MCP) employees was terminated.

The Tribunal used a 'subset analysis' to determine that a 'significant number' of plan members had been terminated, comparing the number of terminated MCP employees to the total number of active MCP plan members.

The Court of Appeal dismissed the appeal, holding that s. 69(1)(d) permits a subset analysis in appropriate circumstances and that the Tribunal's application of this analysis was reasonable given that the merger intentionally targeted senior employees nearing retirement.

Following a decision on the partial wind-up of a pension plan, the applicant sought costs against the respondent.

The Financial Services Tribunal dismissed the costs claim, finding that the respondent's conduct during the hearing was reasonable and did not meet the criteria for a costs award under Rule 45.01.

Furthermore, the Tribunal held that it could not award costs for the fees of the applicant's representative, who was not licensed under the Law Society Act, as doing so would contravene public policy.

The 111 Pension Rights Association brought a motion to add section 69(1)(d) of the Pension Benefits Act as an alternative ground for the proposed partial wind up of the Imperial Oil Limited Retirement Plan.

The Superintendent's Notice of Proposal had only relied on section 69(1)(e).

The Financial Services Tribunal dismissed the motion, holding that it lacked jurisdiction to direct the Superintendent to order a wind up on a basis that the Superintendent had not selected or fully investigated.

The Tribunal found that it could not review the Superintendent's purely investigative functions where no quasi-judicial decision had been made.

The applicant, a former member of a wound-up pension plan, claimed he elected to receive a monthly pension and did not receive the commuted value of his pension.

The Superintendent of Financial Services proposed to refuse to make an order under the Pension Benefits Act, asserting the applicant's pension entitlement was transferred to a locked-in RRSP in 1990.

Applying the best evidence rule due to incomplete records, the Tribunal evaluated banking documents, statements from the funding agent, and the applicant's testimony.

The Tribunal found on a balance of probabilities that the applicant had received the commuted value of his pension into a locked-in RRSP, discharging the administrator's obligations.

The applicant's request was dismissed.

Appeal from Ontario pension litigation concerning whether an employer could charge plan administration expenses to a pension trust fund, take contribution holidays in a defined benefit component, and use actuarial surplus from that component to satisfy contribution obligations for a newly added defined contribution component.

The majority held that reasonableness review applied to the Financial Services Tribunal's determinations, upheld the finding that most plan expenses were payable from the fund, and confirmed that the defined benefit contribution holidays were permitted under the plan text.

The majority further held that it was reasonable for the Tribunal to permit defined contribution holidays once retroactive amendments designated defined contribution members as beneficiaries of the same trust.

The Tribunal lacked authority to order costs from the fund because the fund was not a party, and the courts properly declined to award the appellants' costs from the fund because the litigation was adversarial.

The Financial Services Tribunal held a hearing to consider the approval of Minutes of Settlement regarding the partial wind-up of a pension plan and the distribution of surplus.

The Tribunal approved the settlement, added affected members as parties, and ordered the applicant to file an amendment to the plan and a surplus withdrawal application.

The Superintendent was directed to issue a Notice of Proposal approving the application.

Following a successful appeal regarding the right to issue third party claims, the appellants sought costs.

The parties agreed on the quantum of costs but disputed the timing of payment.

The Court of Appeal ordered costs payable forthwith, finding no special circumstances to justify a delay in payment.

The applicant, a former member of a pension plan, sought to transfer the commuted value of his pension to a locked-in retirement account due to financial hardship.

The Superintendent proposed to refuse the transfer because the applicant was eligible for an immediate pension and his annual benefit exceeded the statutory threshold for a lump sum payment.

The Financial Services Tribunal found that the Superintendent's proposal was premature, as the plan administrator had discretion to permit the transfer.

The Tribunal ordered the Superintendent to ascertain whether the plan administrator would exercise its discretion to allow the transfer before making a final decision.

The Society of Energy Professionals brought a motion to correct an alleged misstatement in the Tribunal's previous decision regarding the partial wind up of the Hydro One Pension Plan.

The Tribunal accepted that it had misunderstood counsel's position during argument and agreed to correct the decision.

The Tribunal also corrected a typographical error, replacing the word 'interlocutory' with 'interrogatory'.

Following a successful appeal by the employer regarding the administration of a pension plan, the parties made written submissions on costs.

The pension committee argued that its costs should be paid out of the pension fund on a substantial indemnity basis, relying on traditional trust principles.

The Court of Appeal rejected this argument, adopting the 'pension trust approach' which limits costs from the fund to cases involving the due administration of the trust or claims advanced for the benefit of all beneficiaries.

Finding the litigation to be adversarial, the Court ordered the committee to pay the employer's costs of the appeals on a partial indemnity basis.

The employer appealed a Divisional Court decision that overturned a Financial Services Tribunal ruling regarding the administration of a pension plan.

The Court of Appeal restored the Tribunal's decisions, holding that the employer was entitled to pay most plan expenses from the pension fund and to take contribution holidays using the actuarial surplus for both the defined benefit and defined contribution components of the plan.

The Court also found that while the notice of the conversion option was inadequate, the Superintendent was not required to refuse registration of the amended plan.

Finally, the Court held that the Tribunal lacked jurisdiction to order costs payable from the pension fund.

The appellants, former employees and beneficiaries of a pension plan, appealed two decisions of the Financial Services Tribunal regarding the employer's handling of the plan.

The Divisional Court held that the employer was not permitted to pay plan administration expenses out of the trust fund, as such amendments constituted an invalid revocation of the trust.

However, the Court upheld the employer's right to take contribution holidays in the defined benefit plan.

The Court also ruled that the employer could not use surplus funds from the defined benefit plan to cross-subsidize its contributions to a newly created defined contribution plan, and that the employer failed to provide proper statutory notice of the plan conversion.

The Tribunal's decision that it lacked jurisdiction to award costs out of the pension fund was upheld.

The applicant requested a review of the Tribunal's July 11, 2005 order regarding the Electrical Industry of Ottawa Pension Plan.

The request was filed slightly past the 10-day deadline, but the Tribunal agreed to consider it as the respondent did not object.

Upon review, the Tribunal found that the applicant failed to identify any material error of law or fact that would have led to a different decision.

The request for review was denied and the original order was confirmed.

The applicant, a former member of a multi-employer pension plan, challenged the calculation of his pension benefits and the composition of the Board of Trustees.

He argued that his pension should have been calculated based on a 2% defined contribution formula and that the plan was not a multi-employer plan.

The Financial Services Tribunal confirmed the Superintendent's proposal to refuse to order a recalculation, finding that the pension was correctly calculated under the plan's defined benefit formula and that there was no evidence of improper board composition or retroactive reduction of benefits.

The appellants, representing members of a salaried pension plan, appealed a decision of the Financial Services Tribunal that upheld the Superintendent's consent to merge their plan with an hourly-paid plan.

The appellants argued the merger would dilute their plan's surplus and that the surplus constituted 'other benefits' protected under s. 81(5) of the Pension Benefits Act.

The Divisional Court held that the Tribunal had jurisdiction to hear the matter and that the appropriate standard of review was reasonableness simpliciter.

On the merits, the Court found that an actuarial surplus in an ongoing defined benefit plan is not an 'other benefit' under s. 81(5), and dismissed the appeal.

This is a note reporting that the Supreme Court of Canada dismissed the appeal from the Court of Appeal for Ontario's decision in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services).

The case involved the distribution of an actuarial surplus upon the partial wind up of a defined benefit pension plan under the Pension Benefits Act.

Appeal concerning whether terminated members of a defined benefit pension plan are entitled to immediate distribution of a proportional share of actuarial surplus on a partial wind-up.

The Court held that the applicable standard of review of the Financial Services Tribunal’s interpretation of s. 70(6) of the Pension Benefits Act was correctness.

Applying the modern principle of statutory interpretation to the text, scheme, and purpose of the legislation, the Court concluded that s. 70(6) requires the realization and distribution of the affected members’ pro rata share of surplus as of the effective date of partial wind-up, if they are otherwise entitled.

The appeal was dismissed with costs.