Mark Zigler

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.

The parties made written submissions on costs following an appeal decision that yielded divided success.

The Court of Appeal held that neither party should pay costs to the other under the usual loser-pays rule.

However, because both parties acted to protect or advance the interests of the pension plan fund on their respective successful issues, the court awarded each party $15,000 in costs per court level, payable from the fund.

The appellants, former employees receiving pensions under the Bank of Canada Pension Plan, brought a proposed class action alleging the Bank improperly extracted funds from the Plan to cover administration costs.

The Bank successfully moved under Rule 21 to strike the claim for direct distribution of the extracted funds to class members and obtained a declaration that the action could not proceed under the Class Proceedings Act due to s. 37(a).

On appeal, the Court of Appeal upheld the striking of the direct distribution claim, finding that restitution to the Plan was the appropriate equitable remedy.

However, the Court allowed the appeal in part, holding that s. 37(a) does not preclude the action from being brought as a class proceeding simply because it could be brought as a representative proceeding under Rule 10 of the Rules of Civil Procedure.

The City of Toronto appealed a decision declaring its amending by-law unlawful.

The by-law purported to retroactively and prospectively require the municipal pension plan to pay the City's internal administrative costs out of the pension fund.

The Court of Appeal dismissed the appeal, holding that the pension plan constituted a true trust in favour of the employees.

The court found that the City did not reserve a power of revocation, and a general power of amendment does not include the power to revoke.

Therefore, the by-law constituted an unlawful partial revocation and breach of trust.

The appellant employer sought to partially wind up its defined benefit pension plan following a corporate reorganization and plant closure, without distributing the $3.1 million pro rata share of the actuarial surplus to the affected members.

The Superintendent of Financial Services refused to approve the report, but the Financial Services Tribunal ordered its approval, relying on the doctrine of legitimate expectations and its interpretation of the Pension Benefits Act.

The Divisional Court overturned the Tribunal's decision.

On appeal, the Court of Appeal affirmed the Divisional Court, holding that section 70(6) of the Pension Benefits Act requires the distribution of surplus on a partial wind up, and that the doctrine of legitimate expectations cannot be used to create substantive rights or override statutory obligations.

Following the sale of a business, the Superintendent of Pensions approved the transfer of pension assets and liabilities from the exporting employer to the importing employer without giving notice to the importing employer's employees.

The employees applied for judicial review, arguing a breach of natural justice.

The Court of Appeal dismissed the appeal, holding that the Superintendent's procedure was reasonable.

The court found that the employees' interests would be adequately protected at the second stage of the process, when the importing employer applied to amend its pension plan, at which point notice and an opportunity to make submissions would be provided.

The complainant, a union member, alleged that his union violated sections 69 and 70 of the Labour Relations Act by removing him from his steady projectionist job after the theatre reduced its operating hours.

The union's executive board decided to eliminate the third steady position and split the remaining hours between the two senior projectionists.

When the complainant attempted to appeal this decision to the general membership, the union presented the matter for information only and refused to hold a vote on his specific request.

The Board found no violation of section 69, as the employer did not make the removal decision.

However, the Board held that the union acted arbitrarily, contrary to section 70, by denying the complainant his right to have the general membership vote on his request to remain in the position with reduced hours.

The Board directed the union to allow the complainant to present his case to the membership for a vote.

The applicant union applied for certification and filed an unfair labour practice complaint, alleging the employer transferred the chief union organizer and discharged two other union supporters due to anti-union animus.

The Board found that the employer's actions violated sections 64, 66, and 70 of the Labour Relations Act.

Concluding that the employer's misconduct created a climate where the true wishes of the employees were not likely to be ascertained, and noting the union had adequate membership support, the Board certified the union under section 8 of the Act and ordered the reinstatement of the discharged employees with compensation.

The appellant was prevented from crossing a picket line at his workplace due to threats of violence from striking members of another union.

He applied for unemployment insurance benefits but was initially denied.

The Board of Referees and the Umpire allowed his appeal, finding he did not participate in the labour dispute.

The Federal Court of Appeal set aside the Umpire's decision, finding the issue of whether members of his grade or class participated had not been addressed.

The Supreme Court of Canada allowed the appeal, holding that the evidence established neither the appellant nor members of his union participated in the dispute, as they were prevented from working by genuine fear of violence.

The appellants appealed a decision denying them deferred benefits under a multi-employer pension plan established by an international union, after a new plan was established for members of the local union.

The Supreme Court of Canada dismissed the appeal, agreeing with the lower courts that the benefits under the original plan had not yet vested and that the respondents had complied with the requirements of the plan.

The Court noted that neither the federal nor provincial pension legislation was designed to deal with the specific circumstances of the case.

The complainant union filed unfair labour practice complaints alleging that the respondent employers violated section 64 of the Labour Relations Act by permitting an incumbent union to post disparaging notices on company bulletin boards during an organizing campaign.

The respondents brought a motion to dismiss the complaints for failing to disclose a prima facie case.

The Board granted the motion, finding that the posting of notices was permitted under the collective agreements and section 46(1)(c) of the Act, and therefore could not constitute a violation of section 64.

The Carpenters' union applied for certification of employees of Construction P.H. Grager Inc. The Labourers' union requested reconsideration, arguing they already held bargaining rights through a prior company, Pierre A. Gratton Construction Inc., which was a related or successor employer.

The Board found that a sale of a business had occurred under section 63 of the Labour Relations Act, as the new company acquired the experience and expertise of the prior company's principal.

Consequently, the Carpenters' application was deemed a displacement application, the previous certificate was rescinded, and a representation vote was ordered.

The complainant filed a section 68 duty of fair representation complaint against the union, alleging it improperly negotiated a collective agreement that terminated his recall rights and failed to hold a ratification vote.

The union raised preliminary objections regarding the complainant's status, the lack of a prima facie case, and excessive delay.

The Board dismissed the complaint on all three grounds, finding that the complainant was terminated before the alleged violation, the union's actions did not violate section 68, and the delay in filing the complaint was unreasonable and prejudicial.

The union filed a grievance and an unfair labour practice complaint against the employer for persistently failing to remit benefit fund contributions as required by the collective agreement.

The employer failed to appear at the hearing.

The Ontario Labour Relations Board found that the employer's repetitive and intentional refusal to fulfill its clear contractual obligations constituted a violation of section 50 of the Labour Relations Act.

The Board ordered the employer to pay the wrongfully withheld amounts, interest, surcharges, and the union's costs of collection, and directed the employer to post a notice of its violations.

The applicant trade union applied for certification for employees engaged in the installation and erection of acoustical and drywall systems.

The respondent employer and an intervener union argued that the Board should revert to its normal practice of describing construction industry bargaining units by specific trades rather than by the work performed, citing a merger between the Lathers' and Carpenters' unions.

The Board declined to modify its long-standing practice of describing bargaining units in the acoustical and drywalling field by the work performed, finding no compelling reason to depart from the established organizational lines.

A certificate was issued to the applicant.

The applicant union sought a declaration that there was a sale of a business between the respondents under section 63 of the Labour Relations Act, and a declaration under section 1(4) that they constitute one employer.

The respondents, a unionized general contractor and a non-unionized holding company, admitted to common control but denied carrying on related activities.

The Board found that while the entities carried on related activities under common control, there was no evidence of an actual erosion of the union's bargaining rights or a scheme to defeat them.

The application was dismissed, with the Board declining to exercise its discretion to issue a related employer declaration.

The intervener challenged the applicant union's membership evidence in a certification application, alleging that two employees did not pay the required one dollar initiation fee.

The Board found that one employee did not pay the fee, invalidating his card, but concluded the collector's error was innocent rather than deliberate.

The Board accepted the remaining membership evidence, finding the applicant met the 35% threshold required for a pre-hearing representation vote, and directed that the sealed ballots be counted.