J. Brett Ledger

The defendants appealed a motion judge's decision to certify four additional common issues in two related class actions brought by former employees regarding the distribution of a pension plan surplus.

The Divisional Court dismissed the appeal regarding the viability of the cause of action under s. 8(10) of the Pension Benefits Standards Act, 1985, finding it was not plain and obvious that the employer-administrator was not in a conflict of interest.

However, the court allowed the appeal in part to amend the class definition in one of the actions to remove restrictive and vague language.

The plaintiffs moved to certify a class proceeding arising from a pension surplus dispute involving former employees who left the pension plan after taking commuted values during a work force adjustment.

The court treated the action as a companion to related pension litigation and certified common issues mirroring those already certified in the related action, including additional conflict of interest issues under the PBSA.

The court rejected the argument that the proposed class definition was irrationally over-inclusive or under-inclusive, found the class action procedure preferable, and accepted the proposed representatives.

The action was certified, the plaintiffs were directed to deliver an updated litigation plan, and the two related actions were ordered to be tried together subject to the trial judge's discretion.

In this pension class proceeding arising from a workforce downsizing, the plaintiffs moved to add common issues alleging the administrator-employer operated under a material conflict of interest while making and implementing surplus-related decisions affecting departing plan members.

The court held the amended theory under ss. 8(10) and 8(11) of the Pension Benefits Standards Act disclosed a viable cause of action and was not defeated by the defendants' argument that members of an ongoing plan had no proprietary right in actuarial surplus.

The proposed conflict issues were common to the certified class, would materially advance the litigation, and did not turn primarily on individualized reliance analysis at the certification stage.

The motion was granted, with directions to file a corrected amended statement of claim and an updated litigation plan.

The plaintiff, a black man, sued his former employer for constructive dismissal, alleging a poisoned work environment due to racism after a co-worker refused to attend mandatory training with him.

The trial judge found in favour of the plaintiff, concluding that the co-worker's refusal was racially motivated and that the employer's response was inadequate.

The Court of Appeal allowed the employer's appeal, finding that the trial judge's conclusions regarding racism and a poisoned work environment were unreasonable and unsupported by the evidence.

The Court held that a single incident did not objectively establish a poisoned workplace, and the employer's actions in investigating the complaint and offering alternative positions did not constitute a repudiation of the employment contract.

The defendant employer appealed an order of a Master requiring production of internal corporate documents and refusing to strike certain documents from the plaintiff’s summary judgment motion record in a certified class action concerning post‑retirement employee benefits.

The court interpreted the certification order and settlement agreement governing the litigation, which restricted discovery and admissible documents to “common documents” shared with class members or historical versions of benefits plan documents.

The Master erred by applying a general relevance test rather than the contractual limitations agreed upon by the parties.

Internal board minutes, memoranda, and corporate financial statements were not “common documents” or historical plan documents because they were not shared with employees as part of the benefits package.

The appeal was allowed, the production order was set aside, and the impugned materials were struck from the motion record.

The plaintiff in a class action regarding post-retirement benefits brought a motion for the production of historical benefits plan documents, including corporate minutes and resolutions concerning the creation of the benefits plans.

The defendant brought a cross-motion to strike certain documents from the plaintiff's affidavit.

The court interpreted the Settlement Agreement between the parties and found that the requested corporate minutes and resolutions fell within the definition of 'historical benefits plan documents' as they were relevant to the objective determination of the contractual terms.

The court ordered the defendant to produce the documents and dismissed the motion to strike.

The appellants, former employees of CMHC, sought to certify class proceedings claiming that CMHC breached its duties by failing to partially terminate its pension plan and distribute the surplus to them after a workforce downsizing.

The motion judge and Divisional Court refused to certify the common issues, finding no viable cause of action.

The Court of Appeal dismissed the appeal, holding that under the Pension Benefits Standards Act, 1985, the court lacks jurisdiction to order an employer to partially terminate a pension plan or to award damages premised on a partial termination.

The court also upheld the refusal to certify a misrepresentation claim and the denial of costs out of the pension fund.

The employer sold a division of its business, resulting in the transfer of employees to a new company.

The transferred employees were removed from the employer's defined benefit pension plan and incorporated into a new successor plan.

At the time of the transfer, the employer's pension plan had a significant projected actuarial surplus.

The employer transferred enough funds to cover the transferred employees' defined benefits but did not transfer any surplus funds.

The transferred employees argued the employer breached its fiduciary duty of even-handedness by not transferring a portion of the surplus and by improperly charging plan administration expenses to the fund.

The Supreme Court of Canada dismissed the appeal, holding that the pension plan documentation allowed the employer to charge administration expenses to the fund and that the transferred employees had no equitable interest in the actuarial surplus, meaning the employer's obligations were satisfied by assuring their defined benefits.

The appellants appealed a decision refusing to certify additional common issues in an existing class action and refusing certification of a proposed related class action.

The claims arose from the distribution of a pension plan surplus following corporate downsizing.

The appellants sought to certify issues related to the partial termination of the pension plan, ownership of the surplus, and estoppel.

The Divisional Court dismissed the appeal, finding that the court lacks jurisdiction to order a partial termination of a pension plan, and that the other proposed common issues were either inextricably linked to the partial termination claim, already covered by existing certified issues, or inappropriate for certification because they required individual assessments of reliance.

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 defendants sought leave to appeal a Master's decision ordering them to answer certain discovery questions.

The plaintiff, a former CEO of Symcor, claimed a 10% equity interest based on his employment agreement.

The defendants argued the agreement was unenforceable.

During discovery, the defendants refused to answer questions regarding the drafting of a subsequent shareholders' agreement, claiming solicitor-client privilege.

The Master ordered the questions answered, finding no privilege or that privilege was waived.

The Divisional Court granted leave to appeal for Symcor regarding certain questions, finding good reason to doubt the Master's decision on privilege, but denied leave for the Banks and other questions.

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 plaintiffs resigned from their employment and withdrew the commuted values of their pensions from the OMERS pension plan.

Shortly after, the plan was amended to provide benefit enhancements from surplus funds.

The plaintiffs sued the plan administrator for negligent misrepresentation and breach of fiduciary duty, alleging it failed to inform them that benefit enhancements were under consideration.

The trial judge found the administrator liable.

The Court of Appeal allowed the administrator's appeal, holding that a pension plan administrator does not have a duty to disclose potential plan changes that are merely under consideration, as such information is speculative and not highly relevant or material.

The appellant, a unionized employee, sued his former employer and union executive for allegedly misrepresenting the terms of an early retirement agreement.

The employer and union successfully moved to dismiss the action for lack of jurisdiction.

On appeal, the Court of Appeal affirmed the dismissal, holding that the dispute arose from the interpretation and application of the collective agreement and the union's duty of fair representation.

Under the Weber principle and the Labour Relations Act, such disputes fall within the exclusive jurisdiction of an arbitrator or the labour relations board, not the courts.

The appellant brought a motion to introduce fresh evidence and to amend his statement of claim on appeal.

The court granted both requests, finding that the interests of justice favoured admitting the evidence, which had been read to the motions judge but not marked as an exhibit.

The court also permitted the amendment to the statement of claim, which effectively withdrew an admission, and imposed terms to address any prejudice to the respondents.

The appellant, Atomic Energy of Canada Limited, sought a confidentiality order for technical documents related to the environmental assessment of nuclear reactors being built in China.

The Federal Court Trial Division and Federal Court of Appeal denied the order.

On appeal, the Supreme Court of Canada established the test for granting confidentiality orders in civil litigation, adapting the Dagenais/Mentuck framework.

The Court held that a confidentiality order should be granted when necessary to prevent a serious risk to an important interest, such as a commercial interest, and when the salutary effects of the order outweigh its deleterious effects on the open court principle and freedom of expression.

Applying this test, the Court allowed the appeal and granted the confidentiality order.