Jennifer McAleer

The applicant sought judicial review of a decision by the Financial Services Tribunal denying his request to retroactively purchase membership in his employer's pension plan.

The Divisional Court dismissed the application primarily because the applicant failed to exhaust his statutory right of appeal under the Pension Benefits Act and no special circumstances justified bypassing that route.

The Court also found that the application would fail on the merits, as the Tribunal's findings of fact were supported by evidence and its discretionary decision was reasonable.

The appellant telecommunications carriers appealed an Ontario Energy Board (OEB) order approving an increase in the pole attachment rate charged by Hydro Ottawa.

The appellants argued the OEB breached procedural fairness and fettered its discretion by applying a 2005 methodology that the OEB acknowledged required review, and by refusing to hear evidence on a new methodology during the Hydro Ottawa hearing.

The Divisional Court dismissed the appeal, finding that the OEB reasonably deferred the methodology issue to an ongoing province-wide policy review.

The Court held that the OEB, as master of its own procedure, afforded appropriate procedural fairness and its decisions regarding the rate adjustment and the final nature of the order were reasonable.

Sobeys appealed a decision finding it contractually obligated to directly fund a pension plan deficit following the termination of a warehousing and transportation agreement with Tibbett.

The Court of Appeal upheld the application judge's findings that the parties had entered into a new agreement for Sobeys to assume direct responsibility for the deficit, that Tibbett had acted with due diligence, and that the claim was not statute-barred because Tibbett was not notified of Sobeys' refusal to fund the deficit until 2013.

The appeal was dismissed.

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 plaintiff moved to set aside a Registrar’s order dismissing a civil action for delay arising from alleged workplace sexual assault and related constructive dismissal claims.

The court applied the contextual analysis described in Reid v Dow Corning Corp, considering explanation for litigation delay, inadvertence in missing the deadline to set the action down for trial, promptness of the motion, and prejudice to the defendants.

Although the action progressed slowly and counsel cited workload pressures, the court found there was no intentional delay and that the plaintiff had taken steps toward advancing the litigation.

The motion to set aside the dismissal was brought promptly and the defendants failed to demonstrate significant prejudice.

The court set aside the dismissal order and permitted the action and a related crossclaim to proceed.

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 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.

Following a successful application, the court determined the appropriate quantum of costs payable by the unsuccessful party.

The applicant sought substantial indemnity costs relying on a lease provision and a prior offer to settle, while the respondent argued for a more limited award based on reasonable fees and proportionality.

The court found the lease provision ambiguous regarding the applicable scale of costs and applied ordinary principles governing the court’s discretion under the Courts of Justice Act and Rule 57.01.

Considering proportionality, the comparative bills of costs, and the necessity of expert evidence, the court fixed a mid-point between the parties’ proposed figures.

Interest on reimbursements was ordered at the Courts of Justice Act rate rather than the lease’s designated interest rate.

A commercial tenant sought declarations regarding the proper method for allocating property taxes under a shopping plaza lease and the proper allocation of tax shortfalls arising from statutory tax-capping rules between 2001 and 2008.

The court interpreted the lease to require use of MPAC valuation records (“working papers”) as the primary method of allocating property taxes rather than a proportionate-share-by-square-footage approach.

The court also addressed the landlord’s allocation of tax shortfall created by legislative caps, holding that the landlord’s historical allocation was arbitrary and lacked a principled basis.

Preferring the methodology of the tenant’s expert, the court held that shortfall should be allocated proportionately among eligible tenants, including uncapped shortfall tenants.

The tenant was therefore entitled to recalculation of taxes and potential refunds or credits based on the correct methodology.

The appellant landlord appealed a decision dismissing its application for a declaration that the respondent tenant's property taxes should be calculated on a proportionate share basis.

The lease provided that if separate assessments were unavailable, the parties must use reasonable efforts to obtain sufficient official information to determine what the separate assessment would have been.

The Court of Appeal upheld the application judge's finding that Municipal Property Assessment Corporation (MPAC) valuation records constituted sufficient official information for this purpose.

The appeal was dismissed.

Following the dismissal of an application seeking interpretation of a commercial lease concerning the calculation of property taxes, the successful respondent sought partial indemnity costs exceeding $75,000.

The applicant argued the amount was disproportionate to the approximately $160,000 in dispute and the relatively limited complexity of the proceeding.

The court applied the principles governing reasonable expectations of the losing party under the Boucher line of authorities and assessed the reasonableness of the time spent by counsel and the claimed disbursements.

Finding the claimed hours and overall expenditures excessive for an application hearing lasting less than a day, the court reduced the recoverable costs.

The landlord sought a declaration that the tenant’s share of property taxes under a commercial lease should be calculated on a proportionate share basis following the elimination of separate tenant assessments under amendments to the Assessment Act.

The tenant argued that the lease required the parties to determine what a separate assessment would have been using official information from MPAC valuation records.

The court interpreted the lease according to the parties’ intentions at the time of contracting and held that MPAC valuation records constituted sufficient official information to estimate a separate assessment.

Because the lease contemplated this scenario, the tenant’s taxes were properly calculated using the assessed value approach rather than proportionate share.

The landlord’s application for a declaration was dismissed.

The appellant City purchased asset-backed commercial paper notes that subsequently collapsed in value.

The City sued the respondents for negligent misrepresentation, conspiracy, and unjust enrichment more than two years after purchasing the notes but less than two years after the notes matured and defaulted.

The Court of Appeal upheld the motion judge's summary judgment dismissing the claims as statute-barred.

The Court held that for negligent misrepresentation inducing a transaction, damage occurs when the plaintiff enters into the transaction and receives something less valuable than represented, not when the full extent of the loss is monetized.

The limitation period was not suspended by a standstill agreement or by the involvement of an investors committee.