Mark Zigler

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 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 appellant was laid off and subsequently received accumulated employer payments from a vacation pay trust fund.

An Unemployment Insurance Officer allocated these benefits as earnings, reducing the appellant's unemployment insurance benefits.

The Supreme Court of Canada held that the accumulated trust monies represented direct savings by the appellant, not vacation pay, as the funds were subject to a trust and had already been taxed.

The appeal was allowed and the decision of the Board of Referees was restored.