FINANCIAL SERVICES TRIBUNAL
2002 ONFST 23
Decision No. P0170-2001-2
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended by the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 (the "Act");
AND IN THE MATTER OF a Proposal by the Superintendent of Financial Services (the "Superintendent") to refuse to consent to the application for payment of surplus to the Employer submitted by Stanley Canada Inc. in respect of The Pension Plan for Designated Employees of Stanley Canada Inc., Registration No. 456897 (the "Plan")
AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Act.
BETWEEN:
STANLEY CANADA INC.
Applicant
- and -
SUPERINTENDENT OF FINANCIAL SERVICES
Respondent
BEFORE:
Martha Milczynski Chair of the Tribunal
Kathryn Bush Vice-Chair of the Tribunal
David Short Member of the Tribunal
APPEARANCES:
For the Applicant: Freya Kristjanson Barry Glaspell
For the Superintendent of Financial Services: Deborah McPhail
For the Members Ed Holba and Blaine Mitton: Robert Forsyth Q.C. (via teleconference)
HEARING HELD: November 19, 2002 Toronto, Ontario
ORDER:
On the basis of the pleadings and written submissions filed, the Minutes of Settlement dated October 24, 2002 attached hereto as Annex “A” containing the Consent to the Order herein filed, and on hearing the oral submissions by counsel for the Superintendent, the Applicant and the Represented Members, the Tribunal makes the following Order:
That the Superintendent is directed to refrain from carrying out the Notice of Proposal to Refuse to Consent to the payment of surplus to the Applicant dated July 26, 2001; and
We direct the payment of the surplus to the Applicant, subject to the interest payments referred to in paragraph 1(e) of the Minutes of Settlement, in accordance with the terms and provisions of the Surplus Distribution Agreement.
DATED at Toronto, Ontario, this 19th, day of November, 2002.
“M. Milczynski”
MARTHA MILCZYNSKI Chair of the Tribunal and Member of the Panel
“K. Bush”
KATHRYN BUSH Vice-Chair of the Tribunal and Chair of the Panel
“David Short”
DAVID SHORT Member of the Tribunal and of the Panel
ANNEX “A”
FST File No.: P0170-2001
FINANCIAL SERVICES TRIBUNAL
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended by the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 (the "Act");
AND IN THE MATTER OF a Proposal by the Superintendent of Financial Services (the "Superintendent") to refuse to consent to the application for payment of surplus to the Employer submitted by Stanley Canada Inc. in respect of The Pension Plan for Designated Employees of Stanley Canada Inc., Registration No. 456897 (the "Plan")
AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Act.
BETWEEN:
STANLEY CANADA, INC.
Applicant
- and -
SUPERINTENDENT OF FINANCIAL SERVICES
Respondent
MINUTES OF SETTLEMENT
(Dated October 24, 2002)
WHEREAS the Pension Plan for Designated Employees of Acmetrack Limited (the “Plan”), a defined benefit pension plan, is registered under the Pension Benefits Act, R.S.O. 1990, c.P.8 (“PBA”) as Registration No. 456897 and with the Canada Customs and Revenue Agency under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 as am. (“ITA”) and is administered by Stanley Canada, Inc. (the “Applicant”);
AND WHEREAS the Plan was terminated and wound up effective December 31, 1993;
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AND WHEREAS the Report on the Wind-Up of the Pension Plan for Designated Employees of Acmetrack Limited as of December 31, 1993 indicated that there were surplus assets of approximately $1,013,748.00 after provision of Plan benefits;
AND WHEREAS the Superintendent approved distribution of the Plan benefits to the three members of the Plan (“Members”) by letter dated March 21, 1997;
AND WHEREAS the Members, who constituted all the members, former members and other persons entitled to Plan benefits as at December 31, 1993, entered the Surplus Distribution Agreement (“SDA”) on September 16, 1998 which is attached hereto as Annex “A”;
AND WHEREAS the Applicant applied to the Superintendent of Financial Services for Consent to the distribution of surplus from the Plan in accordance with the Surplus Distribution Agreement in April 1999 (the “Application”);
AND WHEREAS the Deputy Superintendent gave a Notice of Proposal to Refuse to Consent to the Application dated July 26, 2001;
AND WHEREAS the Applicant requested a Hearing pursuant to PBA s. 89(6) on August 21, 2001;
AND WHEREAS Members Ed Holba and Blaine Mitton (the “Represented Members”) obtained standing as Parties to the Hearing by Order of the Financial Services Tribunal (“Tribunal”) and retained Robert Forsyth Q.C. as counsel, the third Member Robert T. Spicer not appearing or obtaining standing after having been duly served with the Notice of Hearing;
AND WHEREAS the Hearing by the Tribunal is scheduled to commence on November 19, 2002;
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AND WHEREAS the Applicant, the Superintendent, and the Represented Members (collectively the “Parties”), at a Settlement Conference, have reached agreement settling all issues between the Parties (“Settlement Agreement”), subject to approval by the Tribunal, and the Parties wish to record the terms of the Settlement Agreement herein:
- The Parties agree that:
(a) amounts transferred from the Pension Plan for the Employees of Acmetrack Limited (the “Acmetrack Plan”) and the Deferred Profit Sharing Plan for Employees of Acmetrack Limited (the “DPSP”) to the Plan did not remain subject to the provisions or trusts applicable to the Acmetrack Plan and the DPSP;
(b) within the meaning of paragraph 79(3)(b) of the Act, the Plan provides for payment of surplus to the Applicant on the wind up of the Plan;
(c) the Applicant’s Application to withdraw surplus in accordance with the Surplus Distribution Agreement attached hereto as Annex “A” complies with subsection 78(2) of the Act and clause 8(1)(b) of Regulation 909, R.R.O. 1990;
(d) the Applicant’s withdrawal of surplus from the Plan and payment of surplus to the Applicant in accordance with the terms and provisions of the Surplus Distribution Agreement are lawful and permissible under the terms of the Plan, any trust applicable to the Plan, and the Act and Regulations thereunder;
(e) interest on the surplus payments to the Members pursuant to the Surplus Distribution Agreement shall be paid in accordance with the Plan fund rate of return from the date of Plan wind-up to the date of payment;
(f) subject to the interest payments referred to in paragraph 1(e) hereof, the Applicant is and shall be entitled to withdraw surplus from the Plan in accordance with the terms and provisions of the Surplus Distribution Agreement.
The Parties consent to an Order by the Tribunal in the form attached hereto as Annex “B”.
The Parties shall each bear their own costs.
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The Represented Members shall execute and provide to the Applicant a Full and Final Release in the form attached as Annex “C” hereto.
The Parties agree to cooperate to put these Minutes of Settlement into effect and to take such steps as may be necessary to complete this Settlement Agreement.
DATED at Toronto this 24th day of October, 2002.
“Lynda Ellis”
LYNDA ELLIS Manager Technical Consulting, Pension Plans Branch, Financial Services Commission of Ontario, on behalf of the Superintendent, Financial Services Commission of Ontario
“Freya Kristjanson”
FREYA KRISTJANSON of Borden Ladner Gervais LLP, on behalf of the Applicant
“Robert Forsyth”
ROBERT FORSYTH Q.C., on behalf of the Members Ed Holba and Blaine Mitton