Mark Zigler

The plaintiff brought an omnibus motion to implement a Court of Appeal judgment in favour of a class of over 35,000 retirees regarding pension indexation.

The court approved the implementation methodology, which provides an estimated $103 million present value recovery to the class.

The court also approved class counsel fees of $10 million, a $15,000 honorarium for the representative plaintiff, and the Class Proceedings Fund levy.

Finally, relying on section 12 of the Class Proceedings Act, the court eliminated the right of class members to opt out, finding that the declaratory nature of the judgment and the 100% recovery made an opt-out right unnecessary and potentially unjust.

This appeal concerned the proper calculation of cost-of-living adjustments under a pension plan, specifically the rounding policy for the annual percentage increase in the Consumer Price Index (CPI).

The motion judge had found the respondents were entitled to round the CPI increase to two decimal points (1.49%), resulting in a 1% pension increase.

The appellant argued the plan required adherence to Statistics Canada's one-decimal policy (1.5%), which would result in a 2% pension increase.

The Court of Appeal found the motion judge made a palpable and overriding error of fact by ignoring uncontradicted evidence that the two-decimal rounding provision in the plan would still have meaning even with the Statistics Canada one-decimal policy for the Pension Index, particularly for recently retired pensioners.

The court held that the plan's language required adopting Statistics Canada's one-decimal policy for both the annual percentage increase and the CPI.

The appeal was allowed, and summary judgment was granted in favour of the appellant, leading to a 2% pension increase for 2017.

Following the dismissal of the plaintiff's class action on summary judgment, the parties made written submissions on costs.

The defendants sought full or substantial indemnity costs, while the Class Proceedings Fund argued for a 30% reduction on the basis that the litigation was brought in the public interest.

The court rejected both arguments, finding that the defendants' discounted fee arrangement and the breach of trust pleading did not justify an elevated costs scale, and that the pension calculation dispute was a private financial matter rather than public interest litigation.

The court exercised its discretion to award the defendants partial indemnity costs fixed at $200,000 for fees plus disbursements.

The court issued a supplementary endorsement to correct two points from its previous reasons for judgment granting certification and summary judgment dismissing the action.

On consent of the parties, the court revised the class definition regarding the defined benefit indexation payment increase from the pension plan.

The court also clarified that only the employer, and not the other defendants, owed a fiduciary duty to the plaintiff in the administration of the plan.

The plaintiff, a pensioner, brought a proposed class action alleging that the employer miscalculated the 2017 cost of living increase for pension payments, negatively affecting all subsequent years.

The plaintiff sought certification of the class proceeding and summary judgment for breach of contract, breach of trust, and breach of fiduciary duty.

The court certified the action as a class proceeding, finding it met all criteria under the Class Proceedings Act.

However, on the merits, the court granted summary judgment in favour of the defendants, concluding that the employer's interpretation of the pension plan's rounding provisions was correct and no breach of duty occurred.

The plaintiff in a proposed class action moved to introduce Pension Information Committee Reports from 1998 to the present as late-filed evidence, after cross-examinations had been completed.

The defendants objected but suggested that if the reports were admitted, the annual pension statements for the same years should also be admitted.

The court applied the test for late-filed evidence, finding the documents relevant, non-prejudicial as they were the defendants' own records, and reasonably omitted initially.

The court granted the motion, admitting both the reports and the annual statements in the interests of justice.

The union sought leave to proceed with a certification application and unfair labour practice complaint before the Ontario Labour Relations Board following the appointment of a receiver over the debtor company.

The motion judge dismissed the union's motion, finding that the stay imposed by the receivership order prevented the certification application from proceeding and that the union could not pursue an unfair labour practice complaint without a valid certification application.

The Court of Appeal allowed the appeal, holding that the motion judge erred in refusing to lift the stay.

The court found that the motion judge's concerns about the certification application were speculative and unsupported by evidence, and that employees' labour rights should not be unduly inoculated against by insolvency proceedings.

The court granted leave to proceed with both the certification application and the unfair labour practice complaint.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

One hundred and fifteen former Nortel employees brought a motion seeking to impose personal liability on the former directors of Nortel Networks Limited (NNL) and Nortel Networks Corporation (NNC) for unpaid severance payments under section 119 of the Canada Business Corporations Act (CBCA).

The employees argued that the severance payments were akin to retention payments for services performed.

The directors raised defenses including that severance payments are not covered by section 119, they exercised due diligence, and some claimants were employed by a different subsidiary (NNTC).

The court dismissed the motion, finding that severance payments are not for 'services performed' under CBCA s. 119, but rather compensation for loss of employment.

The court also found that the directors had a valid due diligence defense and that the 'true employer' test would have identified NNL as the employer for all employees, despite payroll being handled by NNTC.

The court also noted that releases signed by some employees would have covered the claim.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

In a class proceeding concerning the ownership of surplus from partial wind-ups of a pension plan and alleged improper administrative expenses, the parties sought approval of a revised settlement agreement after earlier settlement arrangements failed due to significant changes in actuarial surplus estimates.

The motion was brought under s. 29 of the Class Proceedings Act, 1992 for court approval of the amended settlement.

Despite objections from certain class members, the court held the revised agreement was fair, reasonable, and in the best interests of the class when assessed against litigation risks, fluctuating actuarial calculations, and the possibility that the employer might ultimately have been entitled to the surplus.

The settlement substantially increased the guaranteed distribution to class members and included financial concessions from both the defendant and class counsel.

The court approved the amended settlement as falling within the acceptable range of reasonableness for class action settlements.

The EMEA Debtors sought leave to appeal an order approving an Allocation Protocol that provided for a joint trial by the Ontario Superior Court of Justice and the US Bankruptcy Court for the District of Delaware to allocate over US$7 billion in proceeds from the sale of Nortel assets.

The moving parties argued the joint trial violated the Ontario court's independence and that the parties had previously agreed to binding arbitration.

The Court of Appeal dismissed the motion for leave to appeal, finding the proposed appeal lacked prima facie merit as the joint trial did not infringe judicial independence and the relevant agreement did not mandate arbitration.

The plaintiffs in a pension surplus class action moved for court approval of an amendment to a previously approved settlement after actuarial assumptions underlying the settlement proved incorrect and the anticipated surplus dramatically declined.

The amended settlement offered a guaranteed minimum payment and a potential capped second distribution if surplus re‑emerged by a specified date.

Numerous class members objected, arguing the amendment was unfair and inconsistent with the expectations created during the original settlement campaign.

The court held that it had jurisdiction under s. 29(2) of the Class Proceedings Act, 1992 to approve or reject the amended settlement but concluded the proposal was substantively, procedurally, circumstantially, and institutionally unfair.

The court emphasized that settlement approval requires fairness beyond mere monetary advantage and refused to approve an unfair settlement even if it represented the better option among undesirable alternatives.

The plaintiff brought a motion to approve a settlement of a representative action under Rule 10.01(3) of the Rules of Civil Procedure concerning governance and alleged improprieties in transactions involving the outsourcing and reassumption of real estate asset management by a pension plan.

After extensive litigation, mediation, documentary disclosure, and a neutral fact‑finding process, a report concluded that the transactions were commercially reasonable and that no wrongdoing occurred, although transparency concerns had arisen.

The settlement recognized governance reforms implemented during the litigation and provided for dismissal of the action with reimbursement of the representative plaintiff’s legal costs.

Applying principles analogous to settlement approval under the Class Proceedings Act, the court found the settlement fair, reasonable, and in the best interests of the represented persons.

The settlement was approved and the action dismissed.

The employer, Hudson's Bay Company, cross-appealed a trial judgment declaring that it was not a beneficiary of a pension plan trust fund and not entitled to surplus assets on plan termination.

The Court of Appeal applied the framework from Schmidt v. Air Products of Canada Ltd. and found that the original trust agreement created an irrevocable trust for the exclusive benefit of the plan members.

The Court distinguished the recent Supreme Court of Canada decision in Burke v. Hudson's Bay Co., noting that the originating documents in this case contained exclusive benefit language that precluded the employer from claiming the surplus.

The cross-appeal was dismissed.

The moving parties sought leave to appeal an order approving a settlement in the CCAA proceedings of Nortel Networks.

The Court of Appeal denied leave, finding no procedural or substantive unfairness in the settlement.

The motion judge had carefully balanced the various interests at stake and made no demonstrable error.

The appellants, representing unionized and non-unionized former employees of Nortel, appealed a decision dismissing their motions for directions to compel Nortel to pay severance, termination, and retirement benefits during its CCAA restructuring.

The appellants argued that the payments were protected under s. 11.3(a) of the CCAA as compensation for ongoing services, and that the CCAA stay could not override provincial Employment Standards Act obligations.

The Court of Appeal dismissed the appeals, holding that the payments were for past services and that the doctrine of federal paramountcy allowed the CCAA stay to suspend the immediate payment obligations under the provincial legislation to facilitate the restructuring.

Following the disposition of four appeals, the Court of Appeal fixed the costs of the appeal and the underlying proceedings.

The appellant was awarded costs on a full indemnity basis, with the respondents ordered to pay a portion on a partial indemnity basis and the remainder to be paid from the Fund.

The court fixed the costs of the appeal at $75,000, and the costs of the underlying Rule 10 and Rule 21 motions at $135,000.

The plaintiff, a member of the OMERS pension plan, brought an action on behalf of plan members against the OMERS Board, two corporations, and three former OMERS employees, alleging breach of fiduciary duty, knowing receipt of trust property, knowing assistance, and unjust enrichment arising from the outsourcing of real estate management.

The defendants successfully moved to strike several claims under Rule 21.

On appeal, the Court of Appeal held that while some breach of fiduciary duty claims were properly struck, the claims for knowing receipt, knowing assistance, and unjust enrichment should be allowed to proceed against all defendants.

The Court also held that the plaintiff was entitled to costs from the pension fund on a full indemnity basis, as the action was brought to ensure the due administration of the fund and for the benefit of all beneficiaries.

The interim receiver of a bankrupt company sought to distribute funds from operating assets to a secured creditor.

The pension plan administrator opposed, claiming priority under a statutory lien for unpaid pension contributions pursuant to s. 57(5) of the Pension Benefits Act.

The Ministry of the Environment also opposed, arguing funds should be retained for environmental remediation.

The Court of Appeal dismissed both appeals, holding that the pension administrator is not a secured creditor under the Bankruptcy and Insolvency Act because the unpaid contributions are not a debt due to the administrator.

The Court also held that the MOE was an unsecured creditor regarding the operating assets and that the BIA's specific provisions for environmental claims governed.