DATE: 20031211

DOCKET: C37612

COURT OF APPEAL FOR ONTARIO

RE: GREAT-WEST LIFE ASSURANCE COMPANY (Plaintiff (Respondent)) –and– CANADA POST CORPORATION and THE CANADIAN UNION OF POSTAL WORKERS AND DALE CLARK, DEBORAH BOURQUE, DONALD LAFLEUR, GEORGE KUEHNBAUM, LYNN BUE, SYLVAIN LAPOINTE AND DENIS LEMELIN IN THEIR REPRESENTATIVE CAPACITY AS NATIONAL EXECUTIVE BOARD MEMBERS OF THE CANADIAN UNION OF POSTAL WORKERS AND ON BEHALF OF THE MEMBERS OF THE CANADIAN UNION OF POSTAL WORKERS (Defendants (Appellants)) (Defendant (Respondent))

BEFORE: LABROSSE, SHARPE and SIMMONS JJ.A.

COUNSEL: David Migicovsky and Jean-Marc Eddie for the appellants

John M. Connolly for the respondent Canada Post Corporation

HEARD: December 9, 2003

On appeal from the judgment of Justice Bernard Joseph Manton of the Superior Court of Justice dated December 21, 2001.

E N D O R S E M E N T

[1] This action involves the Letter Carriers Dental Plan (the “Plan”), administered by Great-West Life Assurance Company (“Great-West Life”) pursuant to the Services and Financial Agreement (the “SAFA”), for Canada Post Corporation (“Canada Post”) and the Canadian Union of Postal Workers (“CUPW”). The Plan was funded on an on-going basis through matching monthly contributions from Canada Post and the employees. Under the SAFA, Canada Post and CUPW were equally liable to Great-West Life for any deficit.

[2] When the Plan was replaced by a new dental plan (the Corporate Dental Plan, effective October 1, 1992), a deficit of approximately $1 million existed. Canada Post admitted responsibility for 50% of the deficit and paid the amount. This appeal is with respect to the balance of the deficit for which CUPW was held liable by the trial judge.

[3] The appellant CUPW raises two issues:

(1) that the trial judge erred in failing to find that Canada Post failed to remit the proper amount of monthly premiums and that, as between Canada Post and CUPW, any liability of CUPW for the deficit should be reduced accordingly.

(2) that the trial judge erred in finding that the SAFA had not been terminated and that it contemplated the payment of “run-off” claims for dental services provided before October 1, 1992 but submitted within ninety days thereafter.

[4] The appeal is entirely factual. We see no overriding and palpable error on the part of the trial judge on either issue.

[5] While the trial judge could have been more explicit in his reasons with respect to the first issue, we are not persuaded that he erred in rejecting CUPW’s contention that Canada Post should bear sole responsibility for that portion of the deficit arising from the shortfall between the monthly contributions and the cost of the Plan. The evidence clearly established that there were many reasons for the deficit, including (1) CUPW’s refusal to contribute the surplus from an earlier plan; (2) CUPW’s refusal to agree to a recommended premium increase in the face of a rising deficit; (3) an improvement in benefits in 1991; and (4) the imposition of a new Quebec tax on premiums. CUPW knew of the deficit but was not concerned about it and, in fact, encouraged its members to utilize the more generous benefits schedule in September 1992.

[6] Although there was evidence indicating that a portion of the deficit may have arisen through Canada Post’s failure to remit monthly premiums, it was open to the trial judge to conclude that Canada Post had not collected the employees’ share of those premiums and therefore that CUPW should share responsibility for that portion of the deficit.

[7] With respect to the second issue, the trial judge made two essential findings: (i) the SAFA was never legally terminated; and (ii) that the SAFA, read together with the Plan, contemplated the payment of claims for services provided before October 1, 1992 for a ninety day “run-off period”. In our view, those findings are well supported by the evidence.

[8] There was no notice of termination as required by Art. VII of the SAFA to bring that agreement to an end. The August 20, 1992 letter from Canada Post, relied upon by CUPW as the notice of termination, makes no reference to Art. VII. It deals with the transfer or folding in of the Letter Carriers to the Corporate Plan, says nothing about terminating the Plan, and explicitly refers to the ninety-day run-off period under the Plan.

[9] The Plan has a ninety-day period for submission of claims and SAFA incorporates the terms of the Plan by reference in the preamble and by necessary implication. The trial judge correctly interpreted the SAFA as incorporating a ninety-day period for submission of claims and equating the “run-off period” with the period of ninety days. CUPW raised no objection to the ninety-day submission advice given to all letter carriers by Canada Post in September 1992. Moreover, CUPW never raised the issue of the deficit until 1993, after all letter carriers had been reimbursed for claims submitted after October 1, 1992 for work done before that date.

[10] The appeal is dismissed with costs to Canada Post in the agreed amount of $20,000, all inclusive.

Signed: “J.-M. Labrosse J.A.”

“Robert J. Sharpe J.A.”

“Janet M. Simmons J.A.”