Mark Edward Bailey

The moving parties, representing non-union active employees and retirees of a company in separate CCAA proceedings, sought leave to intervene in an appeal after oral arguments had concluded and judgment was reserved.

The appeal involved issues under the Pension Benefits Act and the Personal Property Security Act that could significantly impact the moving parties' interests.

The Court of Appeal granted the motion to intervene, finding the moving parties would provide a useful perspective.

To prevent injustice, the intervention was limited to existing issues and the record, and the moving parties were ordered to pay the responding party's reasonable costs for responding to their factum.

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.

The Applicant claimed entitlement to a deferred pension based on his employment with the company from 1970 to 1982, arguing he was a continuous member of the pension plan despite a brief break in service in 1975.

The Plan administrator and the Superintendent of Financial Services took the position that the Applicant received a Cash Refund Benefit when he terminated his employment in 1982, extinguishing any further entitlement.

The Financial Services Tribunal found that the Applicant failed to meet his burden of proof, concluding on a balance of probabilities that he had received a Cash Refund Benefit in 1982 and that his benefits were not locked in under the Plan or the Pension Benefits Act because he was under 45 years of age at the time of termination.

The application was dismissed.

In a liquidating CCAA proceeding, the court considered whether a deemed trust under the Pension Benefits Act arose in respect of pension plan wind-up deficiencies, giving priority over secured creditors.

Applying the Supreme Court's decision in Indalex, the court held that no deemed trust arose because the pension plans were not wound up prior to the CCAA Initial Order.

The court granted the second lien lenders' motion to lift the stay of proceedings to allow a bankruptcy petition to proceed, concluding that imposing a provincial deemed trust priority in the middle of an insolvency proceeding would undermine the predictability and flexibility of the CCAA regime.

The Applicant, a retired member of a defined benefit pension plan, challenged the cessation date of his bridge benefit.

He argued that the bridge benefit should continue until his Canada Pension Plan and Old Age Security payments commenced, rather than ceasing on the first day of the month prior to his 65th birthday.

The Financial Services Tribunal found that the bridge benefit was paid in accordance with the clear terms of the pension plan, which stipulated cessation on the first of the month prior to the attainment of age 65.

The Tribunal also held that the plan terms were consistent with the Pension Benefits Act and the Income Tax Regulations.

The application was dismissed and the Superintendent's Notice of Intended Decision to refuse an order was upheld.

The added party, Canada Life, brought a motion for a confidentiality order to prevent the public disclosure of lists of deferred vested pension plan members it intended to file as evidence.

The applicant and the Superintendent consented to the motion.

The Financial Services Tribunal dismissed the motion, finding that a confidentiality order was not necessary because the privacy interests of the non-parties could be fully protected by filing redacted versions of the lists.

The Tribunal emphasized the strong public interest in open proceedings and held that consent of the parties cannot override this principle where reasonable alternative measures exist.

The applicant sought judicial review of a decision by the Director's Delegate of FSCO, which found she was not involved in an 'accident' under the Statutory Accident Benefits Schedule.

The applicant was injured while driving a pocket bike on the property of the bike's owner.

The Divisional Court upheld the Delegate's decision, finding that under the Off-Road Vehicles Act, the pocket bike was not required to be insured while operated on the owner's property.

Consequently, it did not qualify as an 'automobile' at the time of the collision, and the application for judicial review was dismissed.

The appellants appealed from the Court of Appeal's reversal of the CCAA court's decision regarding the priority of pension plan wind-up deficiency claims over court-ordered DIP financing charges.

The majority held that wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act were subject to a statutory deemed trust under s. 57(4), but that the deemed trust was superseded by the DIP charge by virtue of the doctrine of federal paramountcy.

The majority further held that while the employer-administrator breached its fiduciary duty by failing to ensure the pension plan beneficiaries had adequate notice and representation in the CCAA proceedings, a constructive trust was not an appropriate remedy because the breach did not result in an identifiable asset that it would be unjust for the wrongdoer to retain.

Following a decision in CCAA proceedings, the parties made written submissions on costs.

The court approved an agreement to pay the Retirees' full indemnity legal fees from the Executive Plan fund.

The court declined to make a similar order for the United Steelworkers regarding the Salaried Plan.

The court made no order as to costs for the underlying motions, following conventional CCAA practice.

For the appeal, the Retirees and the USW were awarded partial indemnity costs fixed at $40,000, payable jointly and severally by Sun Indalex and the U.S. Trustee.

The Applicant requested a review of a previous Tribunal decision dismissing her application, and suggested clarifications to the decision.

The Tribunal dismissed the request for review, finding that the Applicant was merely attempting to reargue her case and had not established any material errors of fact or law.

The Tribunal also declined to issue supplementary reasons to clarify the decision, noting that it was functus officio, though it did correct minor clerical errors pursuant to its Rules of Practice and Procedure.

The applicant, a retired member of the OMERS pension plan, challenged an amendment to the plan that changed the method used to calculate inflation indexing.

The applicant argued that the amendment reduced her accrued pension benefits, contrary to section 14(1) of the Pension Benefits Act, because the new method produced a lower increase in the year it was implemented.

The Financial Services Tribunal dismissed the application, finding that the new method was actuarially equivalent to the old method and would produce the same level of inflation protection over time.

The Tribunal held that the amendment did not reduce the aggregate amount or the commuted value of the applicant's accrued pension.

At a pre-hearing conference, the Financial Services Tribunal considered applications for party status and a motion by the unrepresented applicant to convert the proceeding from an oral to a written hearing.

The Tribunal granted limited party status to two organizations but dismissed the other applications.

The Tribunal also dismissed the applicant's motion for a written hearing, finding that the presence of contested expert evidence constituted good reason to maintain an oral hearing to allow for cross-examination, despite the applicant's concerns about being unrepresented.

The Implementing Administrator of a wound-up pension plan brought a motion seeking party status and clarification regarding the implementation of a Claims Bar Procedure established in a prior consent order.

The Financial Services Tribunal granted the Implementing Administrator limited party status to address implementation issues.

The Tribunal also provided guidance, confirming that the Administrator's proposed practical steps for distributing Member Profile Statements and processing claims, despite incomplete data and the unavailability of the Revised Windup Report, complied with the intent of the original order.

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 applicant employer wound up a pension plan and made a lump sum contribution to fund the estimated deficit.

Once all benefit obligations were settled, it was determined the employer had overpaid by $145,361.

The employer applied to the Superintendent for a return of the overpayment under s. 78(4) of the Pension Benefits Act and an extension of time under s. 105.

The Superintendent proposed to refuse the application, arguing the excess constituted surplus subject to s. 79 and that the application was out of time.

The Financial Services Tribunal held that the excess was an overpayment, that s. 78(4) operates independently of s. 79, and that an extension of time was warranted.

The Superintendent was ordered to consent to the refund.

The applicant sought to purchase past service credits in the OPSEU Pension Plan for casual employment prior to 1979.

He had previously applied to buy back this service in 1979 under the predecessor plan but failed to complete the process within the required timeframe.

When the 1989 Public Service Pension Act came into force, it provided a time-limited window until December 31, 1991, for members to purchase prior non-credited service.

The applicant did not apply within this window.

The Financial Services Tribunal upheld the Superintendent's Notice of Proposal to refuse an order directing the Plan to allow the purchase, finding that the applicant failed to meet the mandatory statutory deadline and that the Tribunal had no authority to waive the Plan's terms.

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.

The applicant, CBS Canada Co., and the Superintendent of Financial Services, along with the CAW-Canada, reached a settlement regarding the partial wind-up of the Westinghouse Canada Inc. Pension Plans following several plant closures.

The Financial Services Tribunal approved the Minutes of Settlement, which detailed the calculation of early retirement benefits for affected plan members and the withdrawal of the Superintendent's Notices of Proposal to refuse the partial wind-up reports.

The Tribunal remained seized of the matter for implementation purposes.

The applicant brought a motion to determine the nature of the notice to be provided for a hearing regarding its application to withdraw surplus from a pension plan.

The Superintendent of Financial Services had proposed to refuse the application.

The Tribunal ordered that notice of the hearing be provided by ordinary mail to all affected members and former members of the plan, as well as by newspaper publication, with the costs to be borne by the applicant.