BCE Inc. v. Superintendent of Financial Services, 2012 ONFST 25

FINANCIAL SERVICES TRIBUNAL

2012 ONFST 25

Decision No. P0456-2011-2

Date: 2012/11/01

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 an intended decision of the Superintendent of Financial Services to refuse to consent to a transfer of assets from the BCE Inc. Pension Plan, Registration Number 908061, to the Pension Plan for Employees of Progistix-Solutions Inc. and its Subsidiary Companies, Registration No. 1086412, under sections 80 and 81 of the Act

AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Act

BETWEEN:

BCE INC.

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES, SCI GROUP INC., and CANADA POST CORPORATION

RESPONDENTS

BEFORE:

Ralph Scane Member of the Tribunal and Chair of the Panel

Patrick Longhurst Member of the Tribunal and Member of the Panel

Elizabeth Shilton Member of the Tribunal and Member of the Panel

APPEARANCES:

For BCE Inc: David Stamp David Rienzo David Mollica

For the Superintendent of Financial Services: Deborah McPhail

For SCI Group Inc.: Gerald Ranking

For Canada Post Corporation: Marc-André Leblanc

Date of Hearing on the Motion: September 10 and 18, 2012

REASONS FOR DECISION

ON THE MOTION TO ADD ESTOPPEL TO THE MATTERS IN ISSUE

I INTRODUCTION

1. This is a motion brought by the Respondent SCI Group Inc. (SCI) in the course of an Application for Hearing brought by BCE Inc. (“BCE”) pursuant to s. 89(8) of the Act. The Application seeks a hearing before the Tribunal regarding a Notice of Intended Decision, dated April 28, 2011 (the “NOID”), issued on behalf of the Superintendent of Financial Services by the Acting Deputy Superintendent, Pensions (the “Superintendent”). The NOID advised of the Superintendent’s intention to refuse to consent to a transfer of assets from the BCE Pension Plan, Registration No. 908061, (the “BCE Plan”) to the Pension Plan for Employees of Progistix-Solutions Inc. and its Subsidiary and Affiliated Companies, Registration No. 1086412 (the “Progistix Plan”) effective June 30, 2001, under sections 80 and 81 of the Act. This motion, which is supported by all of the Respondents, seeks an order that the following issue be added to the issues to be determined at the hearing of this Application:

“Is BCE estopped (i.e. precluded) from refusing to transfer surplus for Ontario employees to the Progistix Plan (such that the Superintendent should be directed to refuse to consent to BCE’s Asset Transfer Application) by reason of promises made by BCE to Progistix-Solutions Inc. (now SCI Group Inc.) in or about 2005?

2. The motion also seeks an order for production by BCE of certain documents in addition to those ordered to be produced by the Tribunal’s order P0456-2011-1 herein, dated January 23, 2012 (the “Disclosure Order”, made on the “Disclosure Motion”). The additional production request was whittled down somewhat. The amended request describes the documents as follows:

“all notes, e-mails, memoranda or other documents (including the updates provided by BCECS to the BCE Pension Fund Committee and to the BCE Board from 2001 to 2007, inclusive, and the Minutes of the BCE Pension Fund and BCE Board relating to, or touching upon, the potential transfer of Ontario surplus from BCE to the SCI plan and Mr. Lavigne’s file and documents relating to the discussions he had with Mr. Béliveau in 2005 and all documents relating to BCE’s subsequent decision to limit the surplus transfer to Québec members only.”

It is understood that these documents are sought in relation to the estoppel issue; the production issue needs to be addressed only if we determine that the estoppel issue may be added.

3. We have decided that SCI should be permitted to add the estoppel issue to the issues to be determined at the hearing. With respect to the production sought, however, we have decided to make an order more limited than the one sought by SCI. We have set out our reasons for these decisions below.

II BACKGROUND TO THE MOTION

4. For the purposes of this background statement, the Tribunal adopts certain facts as set out in the “Background” portion of its decision of January 23, 2012 on the Disclosure Motion. The Tribunal does not understand these facts to be disputed by the Parties.

5. SCI Group Inc. (SCI) is the current corporate name of a company originally incorporated as a numbered company in 1995 and subsequently named Progistix-Solutions Inc. (Progistix). (For purposes of reciting the history, we refer generally to the company as Progistix and to the pension plan as the Progistix Plan, to preserve consistency with the documentation, the NOID and our previous order). Progistix was originally incorporated by Bell Canada (Bell). Following the incorporation, about 800 employees were transferred from Bell to Progistix in 1995. At the same time their membership was transferred from the Bell Canada Pension Plan (the Bell Plan) to the BCE Plan. Subsequent employees of Progistix also became members of the BCE Plan.

6. By agreement dated April 27, 2001, (the Agreement), Bell sold its shares in Progistix to Canada Post Corporation (Canpost). Pursuant to the Agreement, Canpost agreed to establish and register a new pension plan for the Progistix employees, most of whom at the time of the Agreement were members of the BCE Plan. This new plan was to have terms substantially similar to and no less favourable than those provided to employees under the BCE Plan as of the closing date of the share sale. This new plan, the Progistix Plan, was established effective July 14, 2001. The Progistix Plan was to assume liability for the accrued benefits of Progistix employees who had previously been covered by the BCE Plan. There was to be a transfer of assets from the BCE Plan to the Progistix Plan equal to the liabilities with respect to the transferred employees. The share purchase agreement recognized that new legislation in Quebec might require special calculations with respect to Quebec plan members. It also recognized more generally that regulators in the relevant provinces might require transfers of larger amounts than the parties had agreed upon, and allowed for adjustments based on that possibility.

7. There was understood to be a surplus in the BCE Plan at the time of the sale to Canpost, and reason to believe that some surplus had been transferred to the BCE Plan from the Bell Plan at the time of the original transfer of Bell employees to Progistix. It appears to have been generally accepted that Quebec law required that the portion of surplus attributable to Quebec employees would have to be transferred to the Progistix Plan. There was discussion about whether or not a portion of the surplus attributable to Ontario employees should be transferred as well, since Ontario legislation did not contain provisions similar to those in the Quebec legislation. Subsequently, and prior to the application for approval of a transfer, SCI was advised in writing that the application for asset transfer would not include any Ontario surplus.

8. By letter dated January 18, 2008, BCE applied to the Superintendent for approval of the transfer between the plans of an amount of assets equal to the going concern liabilities for the employees transferred to Progistix, plus the proportionate share of the surplus in the BCE Plan attributable to members employed in Quebec, as of the effective date of June 30, 2001. The application for approval cited provisions of Quebec regulatory law as the justification for the distinction between Quebec members and other members. There was no similar provision made for transfer of a proportionate share of surplus attributable to members employed in Ontario. In response to BCE’s application, by letter to the Superintendent dated February 19, 2008, SCI contested the failure to transfer a share of surplus attributable to all plan members employed by Progistix. That letter raised a variety of concerns. These included the issue of prior discussions between Progistix and BCE in which, SCI alleged, “Progistix had been led to believe that they would receive a pro-rata share of the surplus attributable to all members”. The letter pointed to contribution holidays taken in the Progistix Plan and to an early retirement incentive plan established on the strength of the Plan’s surplus position. Citing a case then pending before the Supreme Court of Canada, SCI argued that all members of the plan were entitled to their respective proportionate shares of the surplus in the BCE Plan, and that any asset transfer which did not protect that right should be rejected under the Act.

9. In connection with BCE’s application for the transfer, it is important to observe that in 2003, the Ontario Court of Appeal issued a decision in Aegon Canada Inc. and Transamerica Life Canada v. ING Canada Inc. (2003), 38 C.C.P.B. 1, affirming (2003), C.C.P.B. 1 (SCJ) (Transamerica), which, to use the words used by the Financial Services Commission of Ontario (FSCO) on its website, “confirmed that pension plans may be subject to trust provisions that restrict the capacity of an employer to transfer pension assets to another plan.” Subsequent to the Transamerica decision, the Superintendent has taken the position that before consenting to any plan asset transfer, he must assure himself that trust issues, if any, have been appropriately recognized and dealt with in any asset transfer application under either s.80 or s.81 of the Act.

10. At the hearing of the Disclosure Motion, the Parties agreed that, for the purposes of that motion, it was immaterial whether the proposed transfer came within s. 80 or s. 81 of the Act, as each section contained a subsection (5), which requires the Superintendent “to refuse to consent to a transfer of assets that does not protect the pension benefits and any other benefits of the members and former members of the employer’s plan [s.80(5)] or of the original pension plan [s.81(5)] or that does not meet the prescribed terms and conditions.” It was similarly agreed that it was not necessary to distinguish between the two sections for the purposes of this motion.

11. In the NOID, the Superintendent took the position that, as he had not been supplied with sufficient information to enable him to determine whether such restrictive trust issues might exist, he was required by these subsections to refuse to consent to the proposed asset transfer.

12. The possibility that estoppel might become an issue in this proceeding was first mooted in the course of the hearing on the Disclosure Motion. At that time, SCI sought production similar to the production it is now seeking, supporting its request on the basis that the production it sought was arguably relevant to an argument that BCE was estopped from refusing to transfer a portion of the plan surplus on behalf of the Ontario members. The Tribunal refused to address the issue of estoppel-based production at that time because it was not yet clear whether estoppel would become an issue in the case. In its January 23, 2012 decision, the Tribunal stated: “we defer any decision on paragraph (e) [similar to the production order sought before us here] until it is clear whether or not SCI does intend to put forward the position that BCE made legally relevant representations to SCI after the Canpost sale was concluded that should affect the outcome of this case”.

13. At a Pre-Hearing Conference held on May 31, 2012, the parties discussed the matter of settling the issues to be decided at the hearing of this Application. The parties agreed to state the following five issues:

(a) In the context of the 2001 sale of all of the issued and outstanding shares of Progistix-Solutions Inc. by Bell Canada to Canada Post (where members transferred from a pension plan in surplus), is it necessary that the sponsor of the exporting plan be entitled to surplus in order to obtain approval for the asset transfer?

(b) If the answer to issue (a) is “no”, should the Superintendent be directed to approve BCE’s Asset Transfer Application?

(c) If the answer to issue (a) is “yes”, should the Superintendent be directed to approve BCE’s Asset Transfer Application?

(d) What is the significance, if any, of the fact that the Superintendent approved the asset transfer in the Nexacor matter?

(e) Based on the answers to the issues above, what order should the Superintendent be directed to make?

14. At that pre-hearing conference, the panel chair reminded the parties that if estoppel were to become an issue, it would have to be specifically stated as such. Counsel for SCI indicated that he would seek instructions on whether to add an estoppel issue. He subsequently received those instructions, and advised the parties accordingly. While the Superintendent and Canpost had no objection to the addition of an estoppel issue, BCE has opposed it. Accordingly, it was agreed that the matter of whether or not the issue should be added would be brought before the Tribunal for determination.

III THE REQUEST TO ADD THE ESTOPPEL ISSUE

a. The Positions of the Parties and the Evidence on the Motion

15. SCI asserts that the estoppel issue it seeks to add is “centrally relevant to the issue of whether surplus should be transferred from the BCE Plan to the Progistix Plan” (SCI Written Submissions, para. 23), and should be added for that reason. The other Respondents concur that it is a relevant issue.

16. Both in its written submissions, and in its oral argument, BCE took the position that the Tribunal has no jurisdiction to consider an estoppel argument (the “jurisdiction issue”).

17. In its written submissions, the jurisdiction issue appeared to be the only basis on which BCE resisted the addition of the estoppel issue. In those submissions, it acknowledged that “the FST is not being asked to decide the Estoppel Issue on its merits on this motion” (BCE Written Submissions, para. 9). In its oral argument, however, BCE put forward an alternative argument: that estoppel should not be added because SCI had not established any plausible factual basis for an estoppel (the “factual issue”). We will address both these arguments below.

18. As set out in its Notice of Motion, SCI puts forward the following factual basis for its estoppel issue:

19. In the spring of 2005, Mr. Richard Béliveau, then of Morneau Sobeco, SCI’s actuary, spoke with Mr. Lavigne, the BCE actuary handling the asset transfer to SCI, to determine how BCE intended to deal with surplus. Mr. Lavigne told Mr. Béliveau that he thought BCE would transfer the surplus to SCI.

20. Following that discussion, Mr. Béliveau revised SCI’s actuarial valuation report for the year ending December 31, 2003.

21. Relying upon the revised valuation report (which reflected surplus in respect of the Ontario members being transferred to SCI), SCI continued to take contribution holidays in the SCI Plan.

22. BCE subsequently changed its position and notified SCI that it would not be transferring surplus in respect of the Ontario members.

23. As evidence on the motion, SCI filed affidavits from Mr. Phinney, an officer of SCI and from the Mr. Béliveau referred to in these paragraphs. BCE filed an affidavit from the Mr. Lavigne referred to in these paragraphs. There were cross-examinations of all three of these affiants, and the transcripts of those cross-examinations were also filed in evidence. This evidence was directed towards establishing what had transpired at the meeting above referred to, and what actions were subsequently taken by Mr. Béliveau and SCI in reliance on what transpired in the course of the discussion referred to above.

24. If we accept SCI’s version of that evidence, as we should on a motion of this type, that evidence established that “Mr. Lavigne told Mr. Beliveau “that he [Mr Lavigne] thought the Ontario surplus would have to be transferred to SCI by BCE” (SCI Written Submissions, para. 8). Mr. Béliveau’s affidavit acknowledges that he cannot recall Mr. Lavigne’s exact words, but that what Mr. Lavigne conveyed was that he “thought there was a real possibility that BCE would be required by FSCO to transfer the Ontario Surplus to the SCI Plan” (Affidavit of Béliveau, SCI Motion Record, Tab 1, para. 14). Mr. Béliveau also acknowledges in his affidavit that he “recognized that the information [Mr. Lavigne] was conveying to me might not be BCE’s final position and that uncertainty in terms of the final outcome still existed” (para. 16).

b. The Tribunal’s Approach to Settling the Statement of Issues in Dispute

21. Before we address the specific arguments put forward by the parties in support of their positions, we must address a threshold issue: what is the test the Tribunal should apply in determining whether an issue should be included in the list of issues to be determined at a hearing? This is a relatively novel question for the Tribunal, since to date most such matters have been dealt with consensually through the pre-hearing conference process.

22. Much of the case law submitted to us by the parties addresses how the courts have dealt with issues in connection with applying the Rules of Civil Procedure on motions to amend pleadings, motions to strike pleadings and motions for summary judgment on the basis of pleadings, and what tests have been applied in these types of motions.

23. The problem in applying any of these bodies of jurisprudence by analogy is that the Tribunal process has no precise analogue to the pleadings in a civil case. Pension matters normally come before us in response to a NOID, and it is the NOID that normally provides the broad framework from which the statement of issues will emerge. It is the statement of issues itself which serves in large part the same purpose as the pleadings in civil cases, in that it is through that statement that parties give notice of the specific issues they propose to raise.

24. Since the broad purpose of the statement of issues is to provide notice of positions the parties propose to take, Tribunal members presiding at pre-hearing conferences have generally taken the view that parties should be permitted fairly broad initial scope to place issues on the list of matters in dispute. Those issues are then dealt with at the hearing, and disposed of according to their merits.

25. This does not mean that disputes do not occasionally arise about whether issues are properly on the list. These disputes may be dealt with as motions to remove issues from the list on jurisdictional grounds, but more typically are simply disposed of in the course of the hearing on the merits. To date, such disputes have generally arisen in two types of situations: where a party takes the position that the Tribunal has no jurisdiction to deal with the matter because it does not properly arise out of the NOID (see, for example, our January 23, 2012 decision on the Disclosure Motion) and where a party takes the position that the Tribunal has no jurisdiction to deal with the issue for other reasons (see, for example, Monsanto Canada Inc. v. Superintendent of Financial Services, Decision No. P0013-1998-1). To date, we are not aware of any Tribunal decisions addressing preliminary motions to remove an issue on the basis that there is no plausible factual basis for it to be raised (although we see no reason why the Tribunal’s Rules of Practice and Procedures would not permit such a motion if there were a useful purpose in bringing it in a particular case).

26. What does that mean for purposes of a motion such as this one, a motion to resist the listing of an issue as an issue in dispute? In view of the role played by the initial statement of issues in Tribunal proceedings, we believe that the general Tribunal practice of permitting parties to identify for themselves the matters they wish to place in issue is an appropriate one. The initial threshold is therefore not a high one. Any party who seeks to have an issue excluded from the list of matters in issue prior to the commencement of the hearing would then bear the onus of bringing a preliminary motion to remove that issue (similar to a “motion to strike”). In dealing with such motions, the Tribunal may find it helpful to look to the civil case law on motions to strike, always bearing in mind that there are important differences between civil and administrative proceedings, and that the Tribunal functions within a regulatory context, and within the four corners of the statutes that govern its proceedings.

27. Applying this standard, we could simply order that the estoppel issue be added, with leave to BCE to challenge that order, should it choose to do so, through a motion similar to a motion to strike. We do not believe that would be a useful approach in this case. The procedures for dealing with an issue like this have not been clear, and in view of the thoroughness and vigour with which this motion was presented and argued, we believe it is fairer and more efficient to address the issues as if they had been raised on a motion to strike the estoppel issue. Accordingly, we will address the arguments the parties have raised on their merits.

c. The Jurisdiction Issue

28. BCE submits that the Superintendent would have had no jurisdiction to make an order estopping BCE from refusing to transfer the surplus attributable to Ontario employees to the Progistix, or SCI Plan, if he had considered the issue. As a corollary, it submits that the Tribunal has no greater jurisdiction, and therefore there is no jurisdiction in these proceedings to take estoppel into account as sought by this Notice of Motion herein. Therefore, it is submitted, whether such an order should be made is not a proper issue in this Application.

29. BCE submits that the basic source of the Superintendent’s jurisdiction is found in s. 87 of the Act, which then read:

87(1) The Superintendent, in the circumstances mentioned in subsection (2) and subject to section 89 (hearing and appeal), by a written order may require an administrator or any other person to take or refrain from taking any action in respect of a pension plan or a pension fund.

(2) The Superintendent may make an order under this section if the Superintendent is of the opinion, upon reasonable and probable grounds,

(a) that the pension plan or pension fund is not being administered in accordance with this Act, the regulations or the pension plan;

(b) that the pension plan does not comply with this Act and the regulations; or

(c) that the administrator of the pension plan, the employer or the other person is contravening a requirement of this Act or the regulations.

30. Basing its argument upon this section, BCE submits that “[t]he Superintendent’s jurisdiction is limited to ordering compliance with the PBA and the terms of the relevant plan. The Superintendent is mandated……to determine whether the Asset Transfer Application satisfies the applicable legal requirements for approval of an asset transfer and, in particular, to determine whether the Asset Transfer Application protects the pension benefits of the Transferred Members in accordance with either section 80 or section 81 of the PBA” (BCE Written Submissions, para. 53). BCE goes on to argue, “The determination of whether the Asset Transfer Application satisfies these legal requirements cannot be overridden or disregarded because of [an alleged representation]. If a determination is made that the Asset Transfer Application satisfies the legal and regulatory requirements for an asset transfer, the Superintendent is required to approve the asset transfer. To do otherwise would put the Superintendent in conflict with the statutory requirements” (BCE Written Submissions, para. 54). The argument is probably fairly summed up in the following statement. “In raising the Estoppel issue, the Respondents ask the FST to direct that the Asset Transfer Application be rejected irrespective of the applicable legal requirements, because of an alleged statement made by a BCE representative to Morneau. If the requested estoppel were granted, therefore, the estoppel would arise under common law or equity, independent of the legal and regulatory requirements for an asset transfer under the PBA” (BCE Written Submissions, para. 60).

31. In our view, the above argument downplays, if it does not ignore the jurisdictional elements of whichever of ss. 80 and 81 of the Act applies. These sections are the basis upon which the Superintendent acted in refusing to approve the asset transfer here. Under subsection (4) of either section, an asset transfer under the section cannot be made without the Superintendent’s prior consent, and under subsection (5) of either section, the Superintendent is directed to refuse consent to an asset transfer that “does not protect the pension benefits and any other benefits” of the members and former members of the affected plan. By necessary inference, the Act directs the Superintendent to determine what benefits exist, and whether they are protected. Such determination will necessarily require the Superintendent to determine, not only questions of fact, but also of law or mixed questions of law and fact. By further necessary inference, jurisdiction is conferred upon the Superintendent to make the decisions necessarily involved in carrying out this mandate. It is by no means obvious that an estoppel argument could play no role, as a matter of law, in such a decision in an appropriate case. This is particularly true in light of the fact that the issues raised by the Transamerica case are issues of trust law.

32. Whether or not the question of surplus ownership and attendant trust issues should be taken into account under ss.80 and 81 is still a live issue before us, due to BCE's apparent position that such issues need not be determined in order to resolve the question of whether its Asset Transfer Application should be approved. If those issues are taken into account, it is possible that estoppel may play a role. We made clear in our January 23, 2012 decision and we make clear again in this decision that we are not, at this stage, making any determination as to whether or not those issues are relevant on an asset transfer; the point is simply that the question is still open. We likewise make no determination that an estoppel of the type alleged here would play a role; that would be an issue to be determined at the hearing, after full argument on all issues. We are not persuaded at this stage, however, that there would be any jurisdictional barrier to taking estoppel into account, should a relevant estoppel be found.

33. BCE also relied on the fact that the Superintendent did not deal with estoppel in the NOID in support of its submission that the Tribunal has no jurisdiction to consider the estoppel issue. As the Tribunal earlier pointed out in the January 23, 2012 decision, its own jurisdiction to consider an issue does not in all cases rest upon whether or not the Superintendent has previously made a decision upon that particular issue. Here, the task of the Superintendent was to determine whether the pension benefits and other benefits of the affected employees were protected under the provisions of the proposed asset transfer, and that is also the task of the Tribunal. The Superintendent may not have recognized from the various submissions that he was considering when reviewing the proposed transfer here that some form of estoppel might be relied upon to establish the existence of a “benefit”. A letter from SCI to FSCO did give a short account of the factual basis upon which SCI is relying in this Application to establish an estoppel, although it did not use that word or develop the legal significance of the term in the context of the Superintendent’s task in reviewing the Transfer application. The fact that SCI attached importance to these facts was a matter clearly before the Superintendent.

34. Accordingly, the Tribunal holds that there is no jurisdictional obstacle to adding the estoppel issue sought to be added in this case.

d. The Factual Issue

35. As noted above, the parties did not initially frame this motion as one in which we should determine whether or not the evidence was capable of sustaining an estoppel. BCE did raise this issue in oral argument, however, and there was considerable discussion at the hearing on that question.

36. It was common ground among the parties that the generic legal test for an estoppel requires a representation by one party to a legal relationship to the effect that its strict legal rights will not be relied on, and detrimental reliance on that representation. Each of the parties described that test somewhat differently; no doubt there are nuances that will be addressed when the matter is fully argued, and our generic restatement is not intended to minimize the importance of those nuances. BCE submits, however, that the evidence which SCI has filed on this motion and on which it relies in support of its estoppel argument is simply not capable of establishing either the type of representation required or reasonable reliance on a relevant representation. Counsel for BCE reviewed the evidence extensively before the Tribunal, and submitted that, even on the view of the evidence most favourable to SCI, that evidence could not support a finding that the necessary conditions for setting up an estoppel against BCE existed. To use counsel’s words, “the issue has no legs”.

37. Based on the evidence we have reviewed to date, we have considerable sympathy for that position. We have decided, however, that it would be premature to make such a finding at this stage of the proceedings in the Application. As counsel for SCI pointed out, the full evidentiary record is not yet before us. While SCI has presumably placed before us all the evidence currently in its possession on the issue, it hopes to supplement that record through the further productions sought in this motion, and through the interrogatories process which is the subject of the Interrogatories Decision we also issue today. SCI submitted that it may call an additional witness who may have been present at the meeting between Mr. Lavigne and Mr. Béliveau at which the key representation was alleged to have been made. The parties did not come prepared to deal fully with the estoppel issue on its merits, and did not make full legal argument on the elements of an estoppel. SCI has not yet been asked to explain where it places its estoppel issue in the context of the regulatory framework under which this case must be argued. In these circumstances, the Tribunal does not believe that BCE’s attack on the sufficiency of the evidence should, for present purposes, be treated as, in effect, a motion for judgment on the issue sought to be added. Accordingly, the Tribunal rejects BCE’s submission that SCI’s motion should be defeated upon the facts.

38. For all these reasons, the Tribunal orders that the estoppel issue be added to the list of matters in issue at SCI’s request.

IV THE REQUEST FOR ADDITIONAL PRODUCTIONS

39. In its amended request for production, SCI seeks production from BCE of:

“all notes, e-mails, memoranda or other documents (including the updates provided by BCECS to the BCE Pension Fund Committee and to the BCE Board from 2001 to 2007, inclusive, and the Minutes of the BCE Pensions Fund and BCE Board relating to, or touching upon, the potential transfer of Ontario surplus from BCE to the SCI plan and Mr. Lavigne’s file and documents relating to the discussions he had with Mr. Béliveau in 2005 and all documents relating to BCE’s subsequent decision to limit the surplus transfer to Québec members only.”

40. The above request is a variant of the request contained in Paragraph (e) of the list of productions sought by SCI from BCE in the motion previously dealt with in our decision of January 23, 2012. In that decision, as noted above, the Tribunal deferred any decision on this paragraph until it became clear whether SCI was in fact asserting that an estoppel or estoppel-like claim against BCE arises out of the conversation between Mr. Lavigne and Mr. Béliveau described here in the extract from the Notice of Motion, above. At that time, the Tribunal commented (at p.12) that “if estoppel does become an issue before us, SCI may be able to make a case that the material (or some of it) referred to in paragraph (e) may be relevant.”

41. Pursuant to this order, estoppel is now an issue. We do not believe, however, that SCI has made a case that most of the material sought meets the test of “arguable relevance” to the estoppel issue required for disclosure.

42. Our companion decision on SCI’s Interrogatories Motion, also issued today, sets out the Tribunal’s approach, under its new Rules of Practice and Procedure, to disputed issues of disclosure and production, including interrogatories. In that decision, we affirmed that the test to be applied is whether or not the disclosure sought is arguably relevant to an issue in the case.

43. SCI asserts that the material sought here is arguably relevant to the estoppel issue. We are persuaded that it has made that case with respect to all written or electronic documents, or portions thereof, which refer to or touch upon what may have transpired during the discussion or discussions between Mr. Lavigne and Mr. Béliveau, referred to in the Notice of Motion herein. We are not persuaded, however, that the other material sought is arguably relevant to the estoppel issue.

44. Counsel for SCI sought to persuade us that any material that might shed light on BCE’s view of its obligations under the asset transfer agreement was relevant to the estoppel issue, and that the additional material fell into this category. We do not agree. Since the material sought cannot shed any light on whether there was detrimental reliance by SCI, it can be arguably relevant only to the “representation” aspect of the estoppel issue. The representation SCI relies on was alleged to have been made in the course of a very specific discussion between Mr. Béliveau and Mr. Lavigne; the argument that there was any representation stands or falls on what transpired in that meeting. There are some differences between the versions of that representation in the evidence of Lavigne and Béliveau, and SCI takes the view that its case would be strengthened if its version of that evidence were accepted. It is entitled to production of documents arguably relevant to what happened at that meeting. But the other documents sought can shed no light on what happened at that meeting. Accordingly, the further productions to be granted upon this motion must be limited to documents, or portions of them, which may supply further information about what transpired at the meeting in question.

V ORDER

45. The Tribunal orders as follows:

46. An issue in the form set out in Paragraph (a) of the Notice of Motion herein shall be added to the “Matters in Issue” listed in paragraph 4 of the Pre-Hearing Conference Memorandum dated May 31, 2012 to be determined at the Hearing of the Application herein.

47. BCE, within thirty days of this order, shall produce or permit the other parties to inspect

all written or electronic documents, or portions thereof, which refer to or touch upon what may have transpired during the discussion or discussions between Mr. Lavigne and Mr. Béliveau, referred to in the Notice of Motion herein.

Dated at Toronto this 1st day of November, 2012

“Ralph Scane”

Ralph Scane Member of the Tribunal and Chair of the Panel

“Patrick Longhurst”

Patrick Longhurst Member of the Tribunal and Member of the Panel

“Elizabeth Shilton”

Elizabeth Shilton Member of the Tribunal and Member of the Panel