Hydro One Inc. v. Superintendent of Financial Services et al. [Indexed as: Hydro One Inc. v. Ontario (Financial Services Commission)]

98 O.R. (3d) 401

Court of Appeal for Ontario,

Simmons, Cronk and MacFarland JJ.A.

January 11, 2010

Pensions -- Winding up -- Financial Services Tribunal conducting significance analysis under s. 69(1)(d) of Pension Benefits Act by comparing number of terminated plan members falling within defined subset of plan members with total number of active plan members in that subset -- Tribunal's interpretation correct -- Section 69(1)(d) permitting subset analysis in appropriate circumstances -- Tribunal reasonably conducting subset analysis in circumstances where merger which led to termination of employees intentionally targeted senior members who were approaching retirement -- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 69(1)(d).

As a result of a merger of two former affiliate corporations of the appellant, 73 Management Compensation Plan ("MCP") employees lost their jobs and 53 unionized employees left their employ under voluntary severance programs negotiated between the appellant and their union. At the time of the merger, the appellant sponsored a single defined benefit pension plan for all unionized and non-unionized regular employees. After the merger, two MCP employees, acting on their own behalf and on behalf of other affected MCP employees, applied to the Superintendent of Financial Services for a partial wind-up of the Plan under s. 69(1)(d) of the Pension Benefits Act. Section 69(1)(d) authorizes the Superintendent to order a partial or full wind-up of a pension plan where "a significant number of members of the pension plan" cease to be employed by an employer as a result of the "discontinuance" or "reorganization" of the employee's business. The Superintendent proposed to decline the request. Following a hearing by the Financial Services Tribunal, the Tribunal found that the total number of Plan members who ceased to be employed as a result of the merger was not a significant number, either in absolute terms or as a percentage of the total active Plan membership. However, the Tribunal also undertook a subset analysis, comparing the number of terminated plan members falling within a defined subset of plan members (MCP employees) with the total number of active plan members in that subset. The affected MCP employees represented approximately 19 per cent of all active MCP members of the Plan. In the Tribunal's opinion, had the entire group of MCP employees enjoyed a pension plan of their own, 18 per cent would be well within the range of terminations considered "significant". The Tribunal directed the Superintendent to order a partial wind-up of the Plan. The Divisional Court dismissed an appeal from that order. The appellant appealed.

Held, the appeal should be dismissed.

The Divisional Court did not err in finding that the standard of correctness applied to review of the Tribunal's interpretation of s. 69(1)(d) of the Act, while the Tribunal's application of s. 69(1)(d) to the facts of this case was reviewable on the reasonableness standard.

The Tribunal's interpretation of s. 69(1)(d) was correct. A "significance" inquiry under s. 69(1)(d) of the Act may be based on a subset analysis in appropriate circumstances. The fact that the term "significant" is inherently imprecise, and that its meaning under s. 69(1)(d) is almost entirely unqualified, is a strong indication [page402] of a legislative intent that the significance inquiry mandated by s. 69(1)(d) be a flexible and context-specific assessment. The reasonableness of a subset analysis must be based on the facts of the particular case. In some situations, depending on the facts, a subset analysis may be inappropriate and unreasonable. The Tribunal's use of a subset analysis was reasonable in the circumstances of this case. The Tribunal found that the merger targeted older members of the Plan whose retirement years were approaching. The affected MCP employees were precisely the type of employees for whom pension security is of most immediate and tangi ble concern and whose pension benefits fall within the protective purview of s. 69(1)(d) of the Act. The fact that the merger was intentionally directed at senior employees nearing retirement, coupled with the fact that their terminations were involuntary and unrelated to performance or competency, afforded a clear and rational basis for the Tribunal to focus its significance analysis on those members of the plan most directly affected by the merger. The Tribunal was entitled to take into account the unrepresented status of the affected MCP employees. The affected MCP employees were involuntarily terminated without provision of any of the benefits contemplated by the Act, while the unionized affected employees enjoyed negotiated severance packages after the merger.

APPEAL from the order of Kiteley, Cumming and Shaw JJ., [2008] O.J. No. 1436, 67 C.C.P.B. 86 (Div. Ct.) dismissing an appeal from an order of the Financial Services Tribunal.

Cases referred to Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 2004 SCC 54, 242 D.L.R. (4th) 193, 324 N.R. 259, J.E. 2004-1546, 189 O.A.C. 201, 17 Admin. L.R. (4th) 1, 45 B.L.R. (3d) 161, 41 C.C.P.B. 106, 132 A.C.W.S. (3d) 579; Stelco Inc. v. Ontario (Superintendent of Pensions), 1995 8918 (ON CA), [1995] O.J. No. 2724, 126 D.L.R. (4th) 767, 85 O.A.C. 399, 9 C.C.P.B. 126, 57 A.C.W.S. (3d) 853 (C.A.), varg 1994 10976 (ON SCDC), [1994] O.J. No. 1202, 115 D.L.R. (4th) 437, 75 O.A.C. 61, 4 C.C.P.B. 108, 48 A.C.W.S. (3d) 196 (Div. Ct.), affg PCO Bulletin, vol. 4, issue 1 (July 7, 1993) [Leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 481], consd Nolan v. Kerry (Canada) Inc., [2009] 2 S.C.R. 678, [2009] S.C.J. No. 39, 2009 SCC 39, 309 D.L.R. (4th) 513, EYB 2009-162383, J.E. 2009-1510, 391 N.R. 234, 49 E.T.R. (3d) 159, 76 C.C.P.B. 1, 76 C.C.E.L. (3d) 55, 92 Admin. L.R. (4th) 203, 253 O.A.C. 256, distd Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; BICC Cables Canada Inc. v. Ontario (Superintendent of Financial Services), [2001] O.J. No. 1856, 147 O.A.C. 252, 27 C.C.P.B. 201, 105 A.C.W.S. (3d) 756 (Div. Ct.); Buschau v. Rogers Communications Inc., [2006] 1 S.C.R. 973, [2006] S.C.J. No. 28, 2006 SCC 28, 269 D.L.R. (4th) 1, 349 N.R. 324, [2006] 8 W.W.R. 583, J.E. 2006-1309, 226 B.C.A.C. 25, 54 B.C.L.R. (4th) 1, 52 C.C.P.B. 161, 26 E.T.R. (3d) 1, 148 A.C.W.S. (3d) 483, EYB 2006-106843; Firestone Canada Inc. v. Ontario (Pension Commission) (1990), 1990 6833 (ON CA), 1 O.R. (3d) 122, [1990] O.J. No. 2316, 78 D.L.R. (4th) 52, 42 O.A.C. 176, 33 C.C.E.L. 225, 24 A.C.W.S. (3d) 698 (C.A.); Flora v. Ontario (Health Insurance Plan, General Manager) (2008 ), 91 O.R. (3d) 412, [2008] O.J. No. 2627, 2008 ONCA 538, 175 C.R.R. (2d) 19, 76 Admin. L.R. (4th) 132, 238 O.A.C. 319, 295 D.L.R. (4th) 309, 168 A.C.W.S. (3d) 227; GenCorp Canada Inc. v. Ontario (Superintendent of Pensions) (1998), 1998 2947 (ON CA), 39 O.R. (3d) 38, [1998] O.J. No. 961, 158 D.L.R. (4th) 497, 114 O.A.C. 170, 37 C.C.E.L. (2d) 69, 78 A.C.W.S. (3d) 170 (C.A.); [page403] Huus v. Ontario (Superintendent of Pensions) (2002), 2002 23593 (ON CA), 58 O.R. (3d) 380, [2002] O.J. No. 524, 155 O.A.C. 338, 16 C.C.E.L. (3d) 186, 30 C.C.P.B. 151, 111 A.C.W.S. (3d) 831 (C.A.); Imperial Oil Ltd. v. Atlantic Oil Workers Union, Local No. 1, [2006] N.S.J. No. 337, 2006 NSCA 100, 273 D.L.R. (4th) 86, 246 N.S.R. (2d) 330, 40 C.C.L.I. (4th) 1, 55 C.C.P.B. 283, 150 A.C.W.S. (3d) 731 [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 403]; London Life Insurance Co. v. Ontario (Superintendent of Financial Services) (2001), 26 C.C.P.B. 249 (Fin. Serv. Comm.); Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, 91 D.L.R. (4th) 491, 136 N.R. 40, J.E. 92-783, 53 O.A.C. 200, 40 C.C.E.L. 1, 92 CLLC Â14,022 at 12108, 33 A.C.W.S. (3d) 256; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006; Taub v. Investment Dealers Assn. of Canada, [2009] O.J. No. 3552, 2009 ONCA 628, 255 O.A.C. 126, 311 D.L.R. (4th) 389 Statutes referred to An Act to revise The Pension Benefits Act, S.O. 1987, c. 35, s. 70(1)(d) Employment Standards Act, R.S.O. 1990, c. E.14 Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28, ss. 6(4), 7(2) Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Legislation Act, 2006, S.O. 2006, c. 21 , Sch. F, s. 64(1) Loi sur les regimes de retraite, L.R.O. 1990, c. P.8, s. 69(1) (d) Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 1(1) [as am.], 31, 33, 42 [as am.], 69 [as am.], (1), (a) [as am.], (b) [as am.], (c) [as am.], (d) [as am.], (e) [as am.], (f) [as am.], (h)(i) [as am.], (ii) [as am.], (2), 70(6), 73, 74, 89(5), (9) [as am.]

Christopher G. Riggs, Q.C., and Lisa J. Mills, for appellant. Deborah McPhail, for respondent Superintendent of Financial Services. Andrew Lokan and Emily Lawrence, for respondent Power Workers' Union. Michael D. Wright and Jo-Anne Pickel, for respondent Society of Energy Professionals. Howard Goldblatt and Dona Campbell, for individual respondents Chris Marino and Karen Jones.

The judgment of the court was delivered by

CRONK J.A.: --

I. Introduction

[1] Section 69(1)(d) of the Pension Benefits Act, R.S.O. 1990, c. P.8 (the "Act") authorizes the Superintendent of Financial [page404] Services (the "Superintendent"), [See Note 1 below] in the exercise of his or her discretion, to order a partial or full wind-up of a pension plan where "a significant number of members of the pension plan" cease to be employed by an employer as a result of the "discontinuance" or "reorganization" of the employer's business.

[2] Under existing authorities, the significance inquiry under s. 69(1)(d) of the Act traditionally has been conducted on one or both of two bases: (i) by comparing the number of pension plan members whose employment has been terminated as a result of a business reorganization or discontinuance with the number of active members of the plan as a whole; or (ii) by considering the number of terminated plan members on an absolute, non-comparative basis.

[3] The central issue on this appeal is whether s. 69(1)(d) of the Act also permits the conduct of a significance inquiry on a third basis, namely, by comparing the number of terminated plan members falling within a defined subset of plan members with the total number of active plan members in that subset (a "subset analysis"). This interpretive question is a matter of first impression for this court. [See Note 2 below]

[4] Three subsidiary issues also arise: (i) what standard applies to review of a decision by the Financial Services Tribunal (the "Tribunal") to compel the partial wind-up of a pension plan? (ii) did the Divisional Court err by holding that the Tribunal's decision on significance under s. 69(1)(d), based on a subset analysis, was reasonable in the circumstances of this case? and (iii) is the existence of a collective agreement in the affected workplace a proper consideration under s. 69(1)(d) when deciding whether to order the partial wind-up of a pension plan?

II. Relevant Statutory Provisions

[5] The full text of the pertinent statutory provisions is set out in Appendix "A" to these reasons. Section 69(1)(d) of the Act reads as follows: [page405]

69(1) The Superintendent by order may require the wind up of a pension plan in whole or in part if,

(d) a significant number of members of the pension plan cease to be employed by the employer as a result of the discontinuance of all or part of the business of the employer or as a result of the re- organization of the business of the employer;

III. Facts

(1) Terminations

[6] Between January 1, 2000 and December 31, 2002, the appellant Hydro One Inc. ("Hydro One") [See Note 3 below] implemented four business initiatives that resulted in various workers leaving the employ of the company. One of these initiatives, effected in late 2002, involved the merger of two former Hydro One affiliate corporations (the "Merger").

[7] Although about 3,700 Hydro One employees were affected by the Merger, only 126 employees lost their jobs as a result of it. Specifically, Hydro One terminated the employment of 73 Management Compensation Plan ("MCP") employees -- including that of the individual respondents, Chris Marino ("Marino") and Karen Jones ("Jones") -- (the "Affected MCP Employees"). As well, 53 employees represented by the respondent, the Society of Energy Professionals (the "Society"), left their employ with Hydro One under voluntary severance programs negotiated between Hydro One and the Society (the "Affected Society Employees").

[8] At the time of the Merger, Hydro One sponsored a single defined benefit pension plan for all unionized and non-unionized regular employees (the "Plan"). As of December 31, 2002, there were 3,913 active members of the Plan, about 90 per cent of whom were represented by the two respondent unions: the Society and the Power Workers' Union (the "PWU"). [See Note 4 below] The breakdown of Plan members was as follows: 379 MCP employees; 773 Society employees; and 2,761 PWU employees.

[9] The Plan formed part of the collective agreements between Hydro One and the respondent unions. MCP employees were not members of either union and, hence, were not covered by the [page406] collective agreements. However, the Plan made no material distinction among MCP, Society and PWU employees. Consequently, any enhancements to the Plan negotiated by either union benefited all members of the Plan, including MCP employees.

[10] On termination of their employment with Hydro One, none of the Affected MCP and Society Employees received any pension enhancements. The Affected Society Employees, however, received severance packages negotiated during the collective bargaining process. The record before this court does not reveal the nature of any statutory or common-law severance arrangements put in place for the Affected MCP Employees on the involuntary terminations of their employment.

(2) Superintendent's decision

[11] After the Merger, Marino and Jones, acting on their own behalf and on behalf of other Affected MCP Employees, applied to the Superintendent for a partial wind-up of the Plan under s. 69(1)(d) of the Act. They argued that Hydro One's four business initiatives during the three-year period ending December 31, 2002 constituted a single "reorganization" of Hydro One's business, which resulted in the cessation of employment of "a significant number of members of the [Plan]" within the meaning of s. 69(1)(d).

[12] The Superintendent disagreed. In his view, the four business initiatives in question did not constitute a single reorganization of Hydro One's business. Moreover, while some of the initiatives, viewed individually, involved a reorganization of Hydro One's business, none of them warranted a partial wind- up of the Plan.

[13] The Superintendent explicitly rejected the claim that the Merger should trigger a partial wind-up of the Plan. He held that, while the Merger constituted a "reorganization" under s. 69(1)(d), the 126 Plan members whose employment was terminated as a result of the Merger was not significant "in the context of an active Plan membership of approximately 4,000". Accordingly, by notice of proposal dated July 14, 2005, the Superintendent proposed to decline the request for a partial wind-up order.

(3) Tribunal's ruling

[14] Marino and Jones requested a hearing before the Tribunal concerning the Superintendent's decision. The Tribunal agreed with the Superintendent that Hydro One's four business initiatives were not related and that the Merger was a "reorganization" within the meaning of s. 69(1)(d). The Tribunal also [page407] ruled that the total number of Plan members who ceased to be employed as a result of the Merger (126 members) was not a significant number, either in absolute terms or as a percentage of the total active Plan membership. These findings are not disputed on this appeal.

[15] However, the Tribunal also undertook a subset analysis to further evaluate the significance of the number of Plan members whose employment ceased as a result of the Merger. In the Tribunal's view, this interpretive approach was permitted by s. 69(1)(d) of the Act in an appropriate case, although the circumstances in which it should be undertaken "may be rare". In particular, the Tribunal held that it is permissible in such cases "to segregate a category of employees from the total membership of a plan, and judge the significance of the number of employees within the segregated category who have ceased to be employed . . . by comparing that number to the total number of members in that category".

[16] The subset analysis conducted by the Tribunal in this case involved a comparison of the number of Affected MCP Employees (73) with the total number of MCP employees who were active members of the Plan at the time of the Merger (379).

[17] The Tribunal found that the MCP employees, who were "unprotected by . . . collective agreements", constituted about 10 per cent of the total active Plan membership. In contrast, the Affected MCP Employees represented less than 2 per cent of the total number of active Plan members. However, the Affected MCP Employees also represented approximately 18 per cent of all active MCP members of the Plan. In the Tribunal's opinion, had the entire group of MCP employees enjoyed a pension plan of its own, 18 per cent (18%) would be "well within the range of terminations considered 'significant', on the existing authorities".

[18] On this basis, the Tribunal concluded that the number of Affected MCP Employees was significant under s. 69(1)(d) of the Act. The Tribunal, therefore, directed the Superintendent to order a partial wind-up of the Plan regarding those Affected MCP Employees whose employment was terminated between September 1, 2002 and December 31, 2002.

[19] The Tribunal reached a different conclusion concerning the Affected Society Employees for two reasons. First, the Tribunal held that the number of Affected Society Employees (53) did not represent a significant number of members of the Plan whether compared with the total active Plan membership (3,913), with the total number of Society employees who were active Plan members at the time of the Merger (773), or considered in absolute terms. [page408]

[20] Second, in the Tribunal's view, deference to the collective bargaining process dictated that the Affected Society Employees should be excluded from the directed partial Plan wind-up. The Tribunal held that, once it was determined that the threshold for a wind-up order under s. 69(1)(d) had been met, the collective agreement between the Society and Hydro One was a relevant factor to be considered when deciding whether to order a partial Plan wind-up. Unlike the circumstances pertaining to the Affected MCP Employees, Society representatives had determined and negotiated a bargain that, at the time it was struck, was "in the best interest of [the Society employees]". Consequently, the bargain negotiated should remain "inviolate".

[21] Hydro One appealed to the Divisional Court. The Affected Society Employees did not appeal.

(4) Divisional Court's decision

[22] The Divisional Court ruled that the standard of correctness applies to review of the Tribunal's interpretation of s. 69(1)(d) of the Act, while the Tribunal's application of s. 69(1)(d) to the facts of this case is reviewable on the reasonableness standard.

[23] Applying those standards, the Divisional Court held [at para. 55] that the Tribunal's conclusion that s. 69(1)(d) permitted a significance inquiry based on a subset analysis was "correct in law" and "consistent with the context in which s. 69 appears, the language employed by the Legislature, and the scheme and purpose of the [Act]". The Divisional Court further ruled that the Tribunal's application of the Act to the facts of this case and its consideration of Hydro One's collective agreement with the Society were reasonable. Accordingly, the Divisional Court dismissed Hydro One's appeal.

[24] Hydro One again appeals.

IV. Issues

[25] As framed by the parties, there are four issues:

(1) Did the Divisional Court err in its determination of the standards for review of the Tribunal's decision?

(2) Did the Divisional Court err by holding that the Tribunal's interpretation of s. 69(1)(d) of the Act was correct?

(3) Did the Divisional Court err by holding that the Tribunal's decision to order a partial Plan wind-up regarding the Affected MCP Employees was reasonable? [page409]

(4) Did the Divisional Court err by holding that the Tribunal's consideration of Hydro One's collective agreement with the Society was reasonable?

[26] For the reasons that follow, I would answer each of these questions in the negative and dismiss the appeal.

V. Analysis

(1) Standards of review

[27] I agree with the Divisional Court that the standard applicable to review of the Tribunal's interpretation of s. 69(1)(d) of the Act is that of correctness. I also agree that the reasonableness standard governs review of the Tribunal's application of s. 69(1)(d) to the particular facts of this case. I reach these conclusions for the following reasons.

(i) Proper standard on the statutory interpretation issue

[28] The Divisional Court's ruling concerning the proper standard on the statutory interpretation issue was based on the Supreme Court's decision in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51 and the Divisional Court's own review of the various factors permitting identification of the proper standard of review.

[29] In Monsanto, the Supreme Court held that the correctness standard governed review of the Tribunal's interpretation of s. 70(6) of the Act, a provision dealing with the rights and benefits accruing to pension plan members on a partial wind-up of a pension plan. Based on the standard of review analysis then applicable under its jurisprudence -- the "pragmatic and functional test" -- the Supreme Court reasoned that all the factors permitting identification of the standard of review supported the conclusion that the correctness standard applied to the Tribunal's interpretation of s. 70(6).

[30] Monsanto predated by four years the Supreme Court's landmark decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, which revisited the framework for determining standard of review. Dunsmuir establishes a two-step standard of review process. Justices Bastarache and LeBel, writing for a majority of the court, explained this process, at para. 62:

First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [page410]

[31] At para. 64 of their reasons, Bastarache and LeBel JJ. elaborated on the second step of this process:

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

[32] The Supreme Court expressly considered these factors in Monsanto, indicating as follows, at pp. 159-61 S.C.R.:

(i) no statutory privative clause insulates the Tribunal's decisions from judicial review. On the contrary, s. 91(1) of the Act provides for a statutory right of appeal to the Divisional Court;

(ii) the question at issue in Monsanto was a pure question of law, as it related to the interpretation of a statutory provision that has no specialized technical meaning;

(iii) in respect of such an interpretive issue: "[T]he Tribunal does not have specific expertise . . . the nature of the Tribunal's expertise is primarily adjudicative." Further, "[T]here is little to indicate that the legislature intended to create a body with particular expertise over the statutory interpretation of the Act"; and

(iv) nothing related to the purpose of the Act as a whole, or s. 70(6) in particular, evidenced a requirement of deference to the Tribunal's interpretation of s. 70(6).

[33] This reasoning is apposite in the present case with respect to the statutory interpretation issue. In particular, in my opinion, the interpretation of s. 69(1)(d) of the Act involves a general question of law "that is both of central importance to the legal system as a whole and outside [the Tribunal's] specialized area of expertise" so as to attract the correctness standard of review: Dunsmuir, at para. 60.

[34] I recognize that not all questions of law attract the correctness standard: see Dunsmuir, at paras. 55-56; Flora v. Ontario (Health Insurance Plan, General Manager) (2008), 2008 ONCA 538, 91 O.R. (3d) 412, [2008] O.J. No. 2627, 295 D.L.R. (4th) 309 (C.A.), at para. 41. This important principle was reiterated recently in Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, [2009] S.C.J. No. 39, 309 D.L.R. (4th) 513. As in Monsanto, Nolan involved a standard of review analysis relating to a Tribunal decision. The questions at issue in Nolan were largely questions of law [page411] concerning the Tribunal's interpretation of pension plans, related texts and the Tribunal's own enabling statute, the FSCO Act. In respect of these types of questions, where the Tribunal does have expertise "being both close to the industry and more familiar with the administrative scheme of pension law", Nolan holds that the appropriate standard of review is reasonableness: paras. 29 and 31-35.

[35] That is not this case. In contrast to Nolan, the key question on this appeal concerns the Tribunal's interpretation of a provision of the Act, not the interpretation of pension plans and the Tribunal's "home" statute. I do not read Nolan as deviating from Monsanto's holding that the correctness standard applies to the type of interpretive question engaged in the present case.

[36] Monsanto establishes the degree of deference to be accorded to the Tribunal on pure questions of law or statutory interpretation involving the Act. That standard is one of correctness. Thus, it is unnecessary to consider the second step of the Dunsmuir standard of review analysis in connection with the statutory interpretation issue.

[37] That said, I also observe that my holding on this issue would be the same under the second step of the standard of review analysis, as the factors permitting identification of the applicable standard of review were expressly considered in Monsanto and led, as I have indicated, to the conclusion that the correctness standard applies to review of the Tribunal's interpretation of a provision of the Act.

(ii) Proper standard on the statutory application issue

[38] In ruling that the reasonableness standard applies to review of the Tribunal's application of the Act in this case, the Divisional Court stated, at para. 29:

A second question is the application of the statute to the facts. This requires the Tribunal to exercise its discretion whether to order a partial wind-up. In that context, the Tribunal does have expertise and consequently the decision attracts deference. We are of the view that the standard of review on this aspect is reasonableness.

I agree for several reasons.

[39] At the outset, I observe that Monsanto is not dispositive of the issue of the proper standard for review of the Tribunal's decision to order a partial wind-up of the Plan. Monsanto was concerned with the Tribunal's interpretation, rather than its application, of a specific provision of the Act. Nor, in my view, does any other authority definitively determine the applicable standard on this question. Accordingly, on the statutory application [page412] issue, it is necessary to consider the second step of the Dunsmuir standard of review process.

[40] In this case, I regard the following factors as controlling. First, where, as here, a hearing by the Tribunal is conducted regarding a proposal by the Superintendent to decline a request for a partial wind-up of a pension plan, s. 89(9) of the Act comes into play. That provision states:

89(9) At or after the hearing, the Tribunal by order may direct the Superintendent to carry out or to refrain from carrying out the proposal and to take such action as the Tribunal considers the Superintendent ought to take in accordance with this Act and the regulations, and for such purposes, the Tribunal may substitute its opinion for that of the Superintendent.

[41] Thus, the Tribunal enjoys wide discretionary power under s. 89(9) to substitute its opinion for that of the Superintendent and to direct the Superintendent to act as the Tribunal considers appropriate in accordance with the Act: Nolan, at paras. 27 and 35. Questions of discretion generally attract a standard of reasonableness and deference will usually apply automatically: Dunsmuir, at paras. 51 and 53. This suggests that deference is owed to the Tribunal on the question of whether to direct the Superintendent to order a partial wind-up under s. 69(1)(d) of the Act.

[42] But, unlike its specialized predecessor agency -- the Pension Commission of Ontario -- the Tribunal is a multidisciplinary body whose members are not obliged to have any specific expertise in pensions. The FSCO Act does not require that members appointed to the Tribunal and assigned to a pension-related hearing have special expertise in pension matters: Monsanto, at p. 161 S.C.R.; FSCO Act, ss. 6(4) and 7(2). Moreover, in contrast to the former Commission, the Tribunal has no policy functions as part of its pension mandate that might attract deference to a Tribunal decision requiring a pension plan wind-up. Rather, the Tribunal serves an adjudicative function within Ontario's pension regulation scheme: Monsanto, at p. 161 S.C.R.; Nolan, at para. 27; BICC Cables Canada Inc. v. Ontario (Superintendent of Financial Services), [2001] O.J. No. 1856, 147 O.A.C. 252 (Div. Ct.), at paras. 11-12. The policy function that was previously assigned to the Pension Commissi on of Ontario has been inherited by the Superintendent under the Act. These factors suggest that less deference is owed to a Tribunal decision compelling a pension plan wind-up.

[43] Yet, the decision whether to require the partial wind-up of a pension plan is fundamentally different from a question of statutory interpretation concerning the circumstances in which the remedy of a partial wind-up may be legally available. Because [page413] it works frequently with the implementation of the Act and is more familiar than the courts with the administrative scheme of pension law (see Nolan, at para. 29), I accept that the Tribunal possesses some expertise on discretionary matters relating to the application of the Act and that it has developed some measure of expertise regarding the multi-faceted implications of a wind-up. That this was recognized by the legislature, at least implicitly, is confirmed by the expansive ambit of the Tribunal's authority under s. 89(9) of the Act.

[44] Moreover, the question of whether to order a partial or full wind-up of a pension plan involves the "balancing of multiple sets of interests of competing constituencies": see Monsanto, at p. 162 S.C.R. Unlike the issue in Monsanto, which concerned a purely legal question that was "neither factually laden nor highly technical", it is also a fact-driven and case- specific inquiry: Monsanto, at p. 160 S.C.R.

[45] In my opinion, these considerations tilt the balance in favour of the deferential standard of reasonableness on the statutory application issue.

(2) Statutory interpretation issue

[46] The Tribunal's use of a subset analysis in its s. 69(1) (d) significance inquiry derived from comments by a differently constituted panel of the Tribunal in London Life Insurance Co. v. Ontario (Superintendent of Financial Services) (2001), 26 C.C.P.B. 249 (Fin. Serv. Comm.). In that case, relying on Stelco Inc. v. Ontario (Superintendent of Pensions), PCO Bulletin, vol. 4, issue 1 (July 7, 1993), affd 1994 10976 (ON SCDC), [1994] O.J. No. 1202, 115 D.L.R. (4th) 437 (Div. Ct.), vard 1995 8918 (ON CA), [1995] O.J. No. 2724, 126 D.L.R. (4th) 767 (C.A.), leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 481, the Tribunal determined the significance of the number of employment terminations caused by a business reorganization on the basis of the absolute number of terminations, without regard to the total membership of the applicable pension plan. However, the Tribunal also said, at pp. 254-55:

[W]e have also considered the question of whether the number of involuntary terminations as a result of the reorganization is "significant" in relation to the membership of the Plan. In this case, the significance of the number 384 may be properly assessed by comparing that number to the total number of active members of the Plan who were administrative employees at the relevant time.

If we take the number of Plan members who, it is agreed, ceased to be employed as a result of the reorganization, namely 384, as a percentage of this possible range of total active Plan members who were administrative [page414] staff at the relevant time, we come up with percentages ranging between 14.9 and 12.8. In our opinion, 384 is a "significant number" of employees ceasing to be employed in the course of a year as a result of a reorganization when that number represents a percentage, of the relevant base of Plan members, that comes anywhere within this range, i.e. even if it is as low as 12.8%. This proportional analysis reinforces our earlier conclusion based on the absolute number of terminations resulting from the reorganization that the number of terminations was "significant" in this case.

(Emphasis added)

[47] The Tribunal in the present case considered these obiter comments and stated: "We believe that this is an appropriate case to further consider the cautious suggestion in London Life that significance might be determined by reference to some sub- group within a plan." The Tribunal went on to conclude that a subset analysis is permissible under s. 69(1)(d) in "appropriate" but "rare" circumstances.

[48] In reaching this conclusion, the Tribunal considered several factors, including (i) the size of the entire group of MCP employees who were members of the Plan, in relation to the total Plan membership; (ii) the fact that MCP employees were not protected in the workforce by collective agreements; (iii) the percentage that the Affected MCP Employees represented of the entire group of MCP employees; (iv) the language of s. 69(1)(d) of the Act, including, especially, the use of the word "significant" in that provision; (v) the direction afforded by Monsanto regarding the protective purpose and remedial nature of the Act; and (vi) finally, the complexity of and variation in modern private-sector pension plans.

[49] Given these factors, the Tribunal concluded, "this is an appropriate case to segregate the MCP employees from other plan members" and held that the Affected MCP Employees "constituted a significant number of members of the pension plan for the purpose of applying s. 69(1)(d) of the [Act]".

[50] The conclusions of the Divisional Court on this issue were succinctly summarized, at paras. 52-53 of its reasons:

From these cases we conclude the following. The number of terminated employees can be significant as an absolute number. It is not necessary to introduce proportions to the analysis, although it is sometimes done. When proportions are considered, the numerator might be the number of terminated employees and the denominator might be the total number of active members in the plan; or the numerator might be the number of terminated employees in a subset and the denominator might be the total number of members in that subset. Those examples are not exhaustive.

Based on the decisions in those cases, on the ordinary and grammatical sense of the words, on the legislative history and the scheme and purpose of the Act, we do not agree with Hydro One's assertion that the words "significant number" must be determined by comparing the number of affected [page415] Pension Plan members against the total active plan membership (i.e. 73/3913). The jurisprudence has moved from this historical approach to finding that the threshold of s. 69(1)(d) can be met simply by considering the absolute number of terminated employees without looking to the ratio. Indeed, the numerator may be the number of terminated employees in a subset and the denominator may be the total number of members in that subset in appropriate circumstances.

(Emphasis added)

Thus, in the Divisional Court's opinion, the Tribunal's interpretation of s. 69(1)(d) was correct.

[51] For the reasons that follow, I agree that a significance inquiry under s. 69(1)(d) of the Act may be based on a subset analysis. In my opinion, both the wording of s. 69(1)(d) itself and the overall scheme and purpose of the legislative framework compel this interpretive conclusion. However, as I will also explain, despite the availability of a subset analysis under s. 69(1)(d), resort to this type of analysis will not be reasonable in every case.

(i) Wording of s. 69(1)(d)

[52] The proper approach to statutory interpretation requires that the words in question be "read in their entire context and in their grammatical and ordinary sense", harmoniously with the scheme and object of the legislation and the intention of the legislature: see, e.g., Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26.

[53] In this case, the words in question are "a significant number of members of the pension plan", as they appear in s. 69(1)(d). Because the relevant number of members is concerned with members "of the pension plan", the grammatical and ordinary sense of the entire phrase "a significant number of members of the pension plan" suggests that regard must be had to the plan as a whole. But the matter does not end there.

[54] The first important word of the phrase at issue, the word "significant", is not defined under the Act and, apart from s. 69(1), does not otherwise appear in the Act. As used in s. 69(1)(d), the word "significant" modifies the phrase "number of members of the pension plan" who cease to be employed by the employer. Under s. 1(1) of the Act, the word "member" is defined as "a member of the pension plan", while the phrase "former member" is defined in part to mean "a person who has terminated employment or membership in a pension plan". The parties accept that by virtue of these definitions, the relevant inquiry [page416] under s. 69(1)(d) is whether the number of terminated active pension plan members is "significant".

[55] No other words of limitation constrain the meaning of "significant" in s. 69(1)(d). In particular, no reference is made in s. 69(1)(d) to any fixed formula or approach for the assessment of significance. For example, the provision fails to stipulate any percentage of the workforce or number of terminations as a minimum threshold to establish a "significant number of members of the pension plan". Nor are any other criteria for establishing such a threshold set out.

[56] Apart from s. 69(1)(d), the statutory grounds for a wind-up order contemplate a significance inquiry in three other instances. Section 69(1)(e) refers to the discontinuance of "all or a significant portion" of the employer's business, while s. 69(1)(h)(i) and (ii) refers to "a significant reduction" in the number of members and in contributions, in the context of a multi-employer pension plan. As with s. 69(1) (d), no words of limitation or explanatory language regarding the meaning of "significant" appear in these provisions.

[57] The Divisional Court began its analysis of the Tribunal's interpretation of s. 69(1)(d) with consideration of the legislative history of that provision. The court noted that, prior to 1987, the predecessor version of s. 69(1)(d) referred to a "substantial number", rather than a "significant number", of pension plan members. [See Note 5 below] The Divisional Court emphasized this change in statutory language, observing, at para. 36: "[T]he word 'substantial' connotes weight or size, while the word 'significant' connotes import." At paras. 38-39 of its reasons, the court went on to say:

We agree with counsel for the Superintendent that words such as "substantial" and "significant" were used to allow for flexibility in determining whether a partial wind up should be ordered.

Furthermore, we infer from the change from "substantial" to "significant" and to the lack of precision in defining "significant", that the Legislature intended to afford to Tribunals the opportunity to make a decision that responds to the uniqueness of each situation.

[58] I agree that the word "significant" does not lend itself to precise definition: see Stelco (Ont. Div. Ct.), at p. 110. I also agree that the change in language from "substantial" to "significant" denotes a shift from purely quantitative to qualitative considerations. However, I am not persuaded that the nuanced difference in meaning between "substantial" and "significant" is [page417] of any great moment in interpreting s. 69(1)(d). Both words essentially connote importance or materiality. This is reinforced by the French language version of s. 69(1)(d), which refers to "un nombre important de participants". Similar references to "importante" are contained in the French language text of s. 69(1)(e) and 69(1)(h)(i) and (ii). [See Note 6 below]

[59] That said, in accordance with normal rules of statutory interpretation, the legislature's use of the term "significant" must be viewed as deliberate. The fact that the term "significant" is inherently imprecise, and that its meaning under s. 69(1)(d) is almost entirely unqualified, is a strong indication of a legislative intent that the significance inquiry mandated by s. 69(1)(d) be a flexible and context-specific assessment.

[60] Indeed, in my view, it is precisely because there is considerable variability in the structure and scope of pension plans, and in the types of business reorganizations that may impact on the security of employee pension benefits, that the importance of the number of employee terminations caused by a reorganization cannot always be uniformly evaluated. The use of the somewhat elastic term "significant" in s. 69(1)(d) seems designed to ensure that the Superintendent has considerable latitude to assess the materiality of the number of employee terminations, having regard to the full circumstances surrounding the reorganization and the pension plan at issue.

[61] The Tribunal made essentially the same point:

[W]e are also aware that pension plans may now be very complex with respect to the employees they protect. They may range from plans covering a single employer with a relatively homogenous work force to plans covering multiple operating subsidiaries of a holding company. They may cover, as in this case, management and non-management, or union and non-union employees. They may cover members belonging to more than one union, and those unions may not be ad idem in their approach to the pension considerations at issue in the face of forthcoming lay-offs. We conclude that the legislative intent of [s. 69(1)(d)] is best furthered by equipping the Superintendent with a scalpel, rather than restricting her or him to a blunt instrument.

[62] The Hydro One Group emphasizes that, unlike some other provisions of the Act (for example, ss. 31 and 33), s. 69(1)(d) makes no mention of employees or members of a [page418] "class of employees" or of any "classes of persons". [See Note 7 below] Given this omission, the Hydro One Group argues that the legislature should not be taken as having intended that a significance inquiry under s. 69(1)(d) be based on a subset analysis, which, by definition, focuses on a particular category, class or group of plan members. The Tribunal rejected this argument on the ground that s. 69(1)(d) also makes no reference to the "total active membership of the pension plan", a key comparator under the historical approach to the evaluation of significance under s. 69(1)(d).

[63] In my view, the absence in s. 69(1)(d) of explicit reference to any category, class or group of employees, pension plan members or persons does not preclude resort to a subset analysis for the determination of the significance of the number of terminated pension plan members. As the Tribunal noted, just as it was open to the legislature to include such a reference, so too was the legislature free to refer explicitly in s. 69(1)(d) to the total overall plan membership. It did neither, instead electing to use the expansive word "significant", a term that necessarily derives its meaning from the context in which it is used.

[64] Further, nothing in the plain language of s. 69(1)(d) precludes the use of a subset analysis. On the contrary, the absence of words of limitation in s. 69(1)(d) and the legislature's choice of the word "significant" suggest that a contextual and case-specific approach to the determination of significance is required, based on the particular circumstances of each case.

[65] In Stelco, this court accepted an interpretation of s. 69(1)(d) that allowed for significance to be assessed, not on the basis of a comparison of the number of member terminations with the total plan membership, but on consideration of the absolute number of terminations. I agree with Marino's and Jones' submission that this reflects reluctance to impose a particular or precise meaning on the word "significant" in the context of s. 69(1)(d). And in Stelco, this court upheld a decision of the Pension Commission of Ontario rejecting the argument that significance under s. 69(1)(d) requires the number of terminated [page419] pension plan members to equal a set minimum percentage of the total plan membership. This, too, suggests that a fixed approach to the determination of significance under s. 69(1)(d) is to be avoided.

(ii) Scheme and purpose of the legislative framework

[66] It also seems to me that the purpose of the Act as a whole, and s. 69(1)(d) in particular, are best fostered by an interpretation of s. 69(1)(d) that allows for flexibility in the means chosen to determine significance under that provision, based on the context in which the significance inquiry arises. I turn first to consideration of the purpose of the Act.

(a) The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p8/latest/rso-1990-c-p8.html)

[67] The Supreme Court described the purpose of the Act at p. 162 S.C.R. of Monsanto, citing GenCorp Canada Inc. v. Ontario (Superintendent of Pensions) (1998), 1998 2947 (ON CA), 39 O.R. (3d) 38, [1998] O.J. No. 961, 158 D.L.R. (4th) 497 (C.A.), at para. 16:

[T]he [Act] is clearly public policy legislation establishing a carefully calibrated legislative and regulatory scheme prescribing minimum standards for all pension plans in Ontario. It is intended to benefit and protect the interests of members and former members of pension plans, and "evinces a special solicitude for employees affected by plant closures".

See, also, Nolan, at para. 28; Buschau v. Rogers Communications Inc., 2006 SCC 28, [2006] 1 S.C.R. 973, [2006] S.C.J. No. 28, per Bastarache J., at paras. 96-97; Firestone Canada Inc. v. Ontario (Pension Commission) (1990), 1990 6833 (ON CA), 1 O.R. (3d) 122, [1990] O.J. No. 2316 (C.A.), at p. 127 O.R.; Huus v. Ontario (Superintendent of Pensions) (2002), 2002 23593 (ON CA), 58 O.R. (3d) 380, [2002] O.J. No. 524 (C.A.), at paras. 26-27.

[68] Monsanto confirms that the Act has a "protectionist aim" and that it embodies "a complex administrative scheme, which seeks to strike a delicate balance between the interests of employers and employees, while advancing the public interest in a thriving private pension system": see pp. 162 and 167 S.C.R. The Supreme Court elaborated, at pp. 171-72 S.C.R.:

The Act is public policy legislation that recognizes the vital importance of long-term income security. As a legislative intervention in the administration of voluntary pension plans, its purpose is to establish minimum standards and regulatory supervision in order to protect and safeguard the pension benefits and rights of members, former members and others entitled to receive benefits under private pension plans . . . The Act . . . seeks, in some measure, to ensure a balance between employee and employer interests that will be beneficial for both groups and for the greater public interest in established pension standards.

(Emphasis added) [page420]

[69] The public policy and remedial objectives of the Act require that it be given a liberal interpretation. This accords with s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, which directs that "An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects." [See Note 8 below] See, also, Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, 91 D.L.R. (4th) 491, at p. 507 D.L.R., for an analogous interpretive approach in the context of the Employment Standards Act, R.S.O. 1990, c. E.14.

(b) Section 69(1)

[70] Section 69(1) of the Act authorizes the Superintendent to intervene in respect of a private pension plan in specific circumstances, each of which involves a serious event regarding the employer, the employer's business or the pension plan sponsored by the employer that jeopardizes the availability of retirement pension benefits. For example, the Superintendent's power under s. 69(1) is triggered on the cessation or suspension of required plan contributions (s. 69(1)(a) and (b)); on the bankruptcy of the employer (s. 69(1)(c)); on the discontinuance of "all or a significant portion" of the employer's business at a specific location (s. 69(1)(e)); or on the sale of the employer's business without a continuing pension plan (s. 69(1)(f)).

[71] In this case, the Tribunal acknowledged that a wind-up order under s. 69(1) could only be made by the Superintendent where "one of several serious events out of the usual course of the employer's business or the employee-employer relationship have [sic] occurred".

[72] The s. 69(1) focus on serious business events is scarcely surprising. The wind-up of a pension plan is an important event for all concerned. Under the Act, even a partial wind-up triggers various statutory rights for the involved plan members and imposes numerous and potentially costly statutory obligations on both the plan administrator and the employer. Indeed, in some situations, a partial pension plan wind-up may affect the ongoing viability of the plan itself. For these reasons, not every change in the status or business of an employer, or in the sponsored pension plan, will give rise to a potential wind-up order. Equally, however, s. 69(1) recognizes that the nature of some business events can endanger the entitlement of plan members [page421] to continuing employment or to the receipt of retirement pension benefits, thereby potentially justifying a wind-up order.

[73] The Hydro One Group submits that the nature of the events enumerated in s. 69(1) signifies a legislative intention that a partial or full wind-up order be available only where an "extraordinary event" involving the employer, or its business, places the security of pension benefits for all plan members at risk.

[74] I would not accept this submission. This narrow characterization of the purpose of s. 69(1) is inconsistent with its remedial and protective aims and those of the Act. Were it accepted, it would set the bar too high for the preservative intervention contemplated by s. 69(1).

[75] In my opinion, properly read, s. 69(1) requires that the trigger for a wind-up order be an event that endangers the continued availability of pension benefits for a material number of plan members, assessed in the context of the applicable pension plan. A threat to the future security of pension benefits for all members of the relevant pension plan is a possible, but not a necessary, precondition to an order under s. 69(1). Consider the language of s. 69(1) itself. As I have said, a partial wind-up may be ordered under s. 69(1)(f) where part of an employer's business or assets is disposed of and the person who acquires the property fails to provide a pension plan for the members of the former employer's pension plan. In these circumstances, there is no requirement that the plan as a whole be at risk before a partial wind-up may be ordered.

(c) Section 69(1)(d)

[76] Finally, I turn to the particular purpose of s. 69(1) (d).

[77] In Stelco (PCO, at p. 44), the former Pension Commission of Ontario suggested that s. 69(1)(d) was enacted to protect older, long service employees whose employment is involuntarily terminated:

In enacting section 69(1)(d) the Legislature was concerned about protecting older employees with appreciable amounts of service who involuntarily lose their employment as a result of a major change in the way in which their employer carries on its business.

[78] As I have already mentioned, a full or partial pension- plan wind-up triggers various statutory rights for affected plan members, including the right to a distribution of any surplus in the plan, the right to immediate vesting in the plan and the right to certain transfer options: see ss. 42, 70(6) and 73 of the Act. In addition, terminated plan members whose age plus years of service total 55 are entitled to "grow-in" benefits under s. 74 of [page422] the Act. These benefits permit eligible plan members whose employment has ceased to "grow-in" to the early retirement benefits available under the relevant pension plan by including in their pension benefits any early retirement benefit provided by the plan to which they would have been entitled if the plan had not been wound up, in whole or in part. [See Note 9 below]

[79] The Superintendent submits that the provision of statutory grow-in benefits for older plan members with long service indicates that the wind-up mechanism provided for under s. 69(1)(d) of the Act is intended to compensate such members for the cessation of employment at a relatively late stage of life. On this basis, it is said, a broad and purposive interpretation should be given to significance under this provision, as the number of terminations may be significant where employees within a targeted group are older, or if the employment terminations occurred over a relatively short time span.

[80] I agree that the benefits available on a plan wind-up are relevant to the discretionary decision not to order a wind- up notwithstanding that the statutory preconditions for a wind-up order are satisfied, as are the benefits provided by the employer, if any, to the terminated members as a result of the business reorganization at issue. Thus, for example, partial wind-ups have been denied by the Superintendent where additional or enhanced early retirement benefits have been furnished to affected employees, consistent with those otherwise available under the Act.

[81] That said, I make two additional observations regarding the Superintendent's submission. First, grow-in benefits only arise if a wind-up order is otherwise made. They are a consequence of, rather than authority for, a wind-up order. Second, while I agree that the age of terminated plan members may bear on the question of the significance of the number of terminations (for example, where it is demonstrated that the reorganization targeted older employees), this assumes that a subset analysis under s. 69(1)(d) is otherwise permissible. Age is not a factor that provides stand-alone authority for a subset analysis.

[82] In my opinion, the purpose of s. 69(1)(d) flows from its remedial nature. It is intended to permit a wind-up order consequent upon a business reorganization (or discontinuance) that endangers the security of pension benefits for a material number of plan members, in the context of the applicable pension plan. [page423] Section 69(1)(d) is concerned with protecting the retirement income security of those members of a pension plan whose employment ceases in such circumstances, thus ending their participation in the pension plan. The materiality of the number of affected plan members is case- specific. It will depend on a host of factors relating to the specific pension plan and reorganization (or discontinuance) at issue.

[83] In the end, the question of how to determine what constitutes "a significant number of members of the pension plan" under s. 69(1)(d) cannot depend on hard and fast rules. The crucial point is that a fixed or closed approach to the means by which this question is assessed would inhibit, and in some cases perhaps preclude, the Superintendent from reaching the just result contemplated by s. 69(1)(d).

[84] As I discuss later in these reasons, contrary to the Hydro One Group's contention, this is not to say that a significance inquiry under s. 69(1)(d) is entirely open-ended or arbitrary, or that there are no principles to guide the Superintendent and the Tribunal in determining when a subset analysis may be conducted under that provision. In Monsanto and Nolan, the Supreme Court of Canada approved an interpretation of the Act that seeks to recognize its protectionist aims, while balancing the interests of employers and employees alike. These objectives must anchor the interpretation of significance under s. 69(1)(d).

(iii) Conclusion

[85] I conclude that the expansive and unrestricted language of s. 69(1)(d) and the remedial and protective nature of the Act in general and of s. 69(1) -- including s. 69(1)(d) -- in particular, support the conclusion that a flexible approach is to be taken to a significance inquiry under s. 69(1)(d). It follows that a significance inquiry under that provision may be based on a subset analysis in order to evaluate the materiality of the number of plan member terminations occasioned by a business reorganization. I pass now to the reasonableness of the Tribunal's decision to conduct a subset analysis in this case.

(3) Statutory application and collective agreements issues

[86] The deferential reasonableness standard of judicial review is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process . . . it is also concerned with whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law": Dunsmuir, at para. 47. See, also, Taub v. Investment Dealers Assn. of Canada, [2009] O.J. No. 3552, 2009 ONCA 628, at paras. 23-24. [page424] It is against this standard that the Tribunal's application of s. 69(1)(d) must be measured.

[87] While I have concluded that s. 69(1)(d) should be read as permitting the Superintendent and the Tribunal to employ a subset analysis for the purpose of assessing the significance of plan member terminations, the reasonableness of a subset analysis must be assessed on the facts of the particular case. In some situations, depending on the facts, a subset analysis may be inappropriate and unreasonable.

[88] When determining whether it is appropriate to conduct a subset analysis under s. 69(1)(d) in a given case, several factors should be considered, including:

(i) whether the pension plan at issue distinguishes between different groups, categories or classes of employees;

(ii) whether the plan members whose employment has ceased represent an identifiable subset of the employer's workforce, such that a separate pension plan could have been established for them;

(iii) the size of the suggested subset of members in relation to the employer's overall workforce;

(iv) whether the applicable business reorganization or discontinuance affected only specific targeted employees and, if so, whether the number of targeted employees is a material portion of the plan membership;

(v) whether the terminated members represent proportionately older members of the pension plan, whose retirement years are approaching;

(vi) whether the terminated members ceased their employment voluntarily or involuntarily;

(vii) whether a partial plan wind-up in respect of the identified subset of plan members would threaten the continued viability of the employer's entire pension plan; and

(viii) any other circumstance indicating that the proposed wind-up could jeopardize the security of pension benefits for continuing plan members.

[89] In the present case, the Divisional Court ruled, at para. 55 of its reasons: "[T]he approach taken by the Tribunal in the application of the statute to the facts was reasonable." On my [page425] reading of the entirety of the Divisional Court's reasons, this conclusion appears to have been based on three considerations: (i) the court's view that it was open to the Tribunal, as a matter of law, to utilize a subset analysis to determine significance under s. 69(1)(d); (ii) the Tribunal's factual findings concerning the purpose of the Merger; and (iii) the court's view that the Tribunal's treatment of Hydro One's collective agreement with the Society was reasonable. For the following reasons, I agree with the Divisional Court that these considerations support the reasonableness of the Tribunal's application of s. 69(1)(d).

[90] I have already concluded that the Tribunal was correct to interpret s. 69(1)(d) as permitting a significance inquiry based on a subset analysis. I therefore agree with the first consideration identified by the Divisional Court.

[91] It is also my opinion that the Tribunal's factual findings concerning the purpose and focus of the Merger lay the ground for the reasonableness of using a subset analysis to determine the significance of the number of plan member terminations caused by the Merger. As the Divisional Court noted, at paras. 11-12 of its reasons:

The Tribunal found that the [Merger] and three earlier discrete initiatives since January 1, 2000 involving down- sizings were designed in part to reduce "legacy costs" of a too expensive payroll inherited from the predecessor corporation, Ontario Hydro, and to introduce a more competitive attitude within the work force. The Tribunal stated that from management's standpoint "there were too many employees, and on average, they were too senior in age."

The Tribunal concluded in respect of the [Merger] that "the merger was an excuse, rather than a reason to further thin out staff, particularly staff with some seniority."

(Footnotes omitted)

[92] These key findings are not challenged on appeal. They establish that the Merger targeted, at least in part, older members of the Plan whose retirement years were approaching. The Tribunal expressly rejected the suggestion that the employment of the Affected MCP Employees was terminated due to staff redundancies arising on the Merger. Moreover, there is no suggestion that the terminations were performance or competency-related. Rather, the terminations constituted a cost reduction measure that was also intended to generate attitudinal change within Hydro One's workforce.

[93] Thus, the Affected MCP Employees are precisely the type of employees for whom pension security is of most immediate and tangible concern, and whose pension benefits fall within the protective purview of s. 69(1)(d) of the Act. The fact that the Merger was intentionally directed at senior employees nearing [page426] retirement, coupled with the fact that their terminations were involuntary and unrelated to performance or competency, affords a clear and rational basis for the Tribunal to focus its significance analysis on those members of the Plan most directly affected by the Merger.

[94] The Hydro One Group submits that this case is factually distinguishable from London Life and, on that basis, argues that a subset analysis was unreasonable here. The Hydro One Group points out that the reorganization in London Life targeted only the administrative side of the employer's business, which encompassed a substantial portion of the pension plan members. As a result, the relevant terminations affected only employees who worked in that segment of the employer's business. In contrast, the Merger here affected MCP, Society and other employees of Hydro One.

[95] I do not regard these distinctions as detracting from the reasonableness of the Tribunal's decision to employ a subset analysis in this case. On the Tribunal's factual findings, the MCP employees constituted a proportion of the total Plan membership that was "not trivial". The Tribunal also held that if the MCP employees had their own pension plan with Hydro One, the percentage of Affected MCP Employees (18 per cent of all MCP employees) "would be well within the range of terminations considered 'significant', on the existing authorities". I agree.

[96] In addition, as in London Life, the Merger targeted a specific and identifiable group of employees. In London Life, the targeted group was comprised of administrative staff. In this case, the targeted group consisted of long-service employees with costly compensation arrangements.

[97] In Huus, this court emphasized that pension plans are created for the benefit of employees, not the companies that sponsor them. Justice MacPherson indicated, at para. 25: "[Pension plans] are a particularly important component of the compensation employees receive in return for their labour. They are not a gift from the employer; they are earned by the employees." I endorse these comments. As pointed out by Deschamps J. in Buschau, at paras. 12 and 31, "Employees rightly see their pension benefits as part of their overall compensation" and "either employees contribute directly or their entitlement is regarded as remuneration deferred until the date of their retirement". See, also, Monsanto, at p. 172 S.C.R. I add that the security of promised pension benefits for employees whose re-employment prospects may be limited due to advancing age is of special import.

[98] The third and final consideration identified by the Divisional Court concerned the Tribunal's treatment of Hydro One's collective agreement with the Society. There are two aspects to [page427] this issue. First, the Tribunal ruled that, while not germane to the determination of significance under s. 69(1)(d), the fact that the Plan is incorporated into collective agreements between Hydro One and the respondent unions was a relevant factor to be weighed by the Superintendent when deciding whether to order a partial wind-up of the Plan.

[99] Second, when deciding whether to direct the Superintendent to order a partial wind-up of the Plan, the Tribunal adverted to the fact that the MCP employees were "unprotected" by collective agreements, they had "no opportunity to consider trade-offs for any rights they might have under a wind-up", and "There is no evidence that they received any compensating benefit for loss of those rights."

[100] The Hydro One Group contends that the Tribunal improperly based its use of a subset analysis on the fact that the Affected MCP Employees did not have the benefits of union representation. They submit that, in so doing, the Tribunal erred as there is no language in the Act that supports differentiation between unionized and non-unionized members of the same pension plan when determining whether a wind-up should be ordered.

[101] I cannot accede to this characterization of the Tribunal's treatment of this issue. The Tribunal said only that, if the authority afforded by s. 69(1)(d) can be invoked in a given case, the provisions of a collective agreement may inform the Superintendent's discretionary decision whether to exercise that authority by ordering the wind-up of a pension plan. I see nothing objectionable in this approach. Indeed, like the Divisional Court, I regard it as reasonable.

[102] I note that the Hydro One Group argued before the Tribunal that the voluntary severance arrangements negotiated with the Affected Society Employees should be respected. In effect, the Hydro One Group took the position that bargains negotiated between the employer and a union are relevant factors to be taken into account in determining whether to direct a wind-up order. Having taken this position, the Hydro One Group cannot be heard to now complain that its argument was accepted by the Tribunal.

[103] Nor do I agree that the Tribunal erred or that its application of s. 69(1)(d) was rendered unreasonable by taking into account the "unrepresented" status of the Affected MCP Employees. It is a fact that the Affected Society Employees enjoyed negotiated severance packages after the Merger, whereas the Affected MCP Employees did not. The reasons of the Tribunal and the record before this court do not reveal the details of those packages. Nor do they indicate what severance arrangements were [page428] put in place for the Affected MCP Employees pursuant to statutory or common-law entitlements. Relying on Imperial Oil Ltd. v. Atlantic Oil Workers Union, Local No. 1, [2006] N.S.J. No. 337, 2006 NSCA 100, leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 403, the Tribunal properly recognized that severance benefits aim to compensate different losses than benefits available on the wind-up of a pension plan.

[104] The critical, undisputed fact is that the employment of the Affected MCP Employees was involuntarily terminated without provision of any of the benefits contemplated by the Act. In contrast, the Affected Society Employees voluntarily applied at the time of the Merger to take up the severance option negotiated by the Society with Hydro One and, on acceptance, terminated their employment. As the Tribunal noted, "[A] number of Society-represented employees who applied to terminate under this offer were refused." Given these facts, the position of the Hydro One Group was described as follows by the Tribunal:

Where employees are leaving a pension plan when they terminate, the extent of their present and future rights with respect to that plan is a factor which both parties to a collective agreement must weigh. Where, for what are considered by the bargaining parties, especially the representatives of the employees, good reasons to accept some equivalent, not necessarily in the pension area, for what employees might obtain if the representatives pressed for a wind up or partial wind up, this should be respected by regulators.

(Emphasis added)

[105] Thus, by noting that the Affected MCP Employees were unrepresented by either union, the Tribunal was simply responding to the argument advanced by the Hydro One Group and underscoring that the Affected MCP Employees were not the beneficiaries of the same considerations and bargaining realities that governed the Affected Society Members. This, too, was accurate and unobjectionable.

[106] Dunsmuir emphasizes that some decisions that come before administrative tribunals "do not lend themselves to one specific, particular result". On the contrary, "they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions": Dunsmuir, at para. 47. Deference is owed to the Tribunal's decision to conduct part of its significance inquiry under s. 69(1)(d) of the Act on the basis of a subset analysis if that decision "falls within a range of possible, acceptable outcomes which are defensible on the facts and the law" and if the justification for the decision is sound, transparent and intelligible: Dunsmuir, at para. 47. I conclude that the Tribunal's [page429] application of s. 69(1) (d) to the facts of this case satisfies these requirements and, therefore, that it was reasonable.

VI. Disposition

[107] For the reasons given, I would dismiss the appeal. Marino and Jones are entitled to their costs of the appeal and of the motion for leave to appeal to this court, fixed in the amount of $15,000, inclusive of disbursements and GST, payable by Hydro One.

Appeal dismissed.

APPENDIX 'A"

(A) The Act:

1(1) In this Act, terminated employment or membership in a pension plan, and,

(a) is entitled to a deferred pension payable from the pension fund,

(b) is in receipt of a pension payable from the pension fund,

(c) is entitled to commence receiving payment of pension benefits from the pension fund within one year after termination of employment or membership, or

(d) is entitled to receive any other payment from the pension fund;

"member" means a member of the pension plan;

31(1) Every employee of a class of employees for whom a pension plan is established is eligible to be a member of the pension plan.

(2) An employee in a class of employees for whom a pension plan is maintained is entitled to become a member of the pension plan upon application at any time after completing twenty-four months of continuous full-time employment.

33(1) Where there is a dispute as to whether or not an employee is a member of a class of employees for whom a pension plan is established or maintained, the Superintendent, subject to section 89, by order may require the administrator to accept the employee as a member.

(2) The Superintendent may make the order if the Superintendent is of the opinion that, on the basis of the nature of the employment or of the terms of employment of the employee, the employee is a member of the class.

. . . . . [page430]

69(1) The Superintendent by order may require the wind up of a pension plan in whole or in part if,

(a) there is a cessation or suspension of employer contributions to the pension fund;

(b) the employer fails to make contributions to the pension fund as required by this Act or the regulations;

(c) the employer is bankrupt within the meaning of the Bankruptcy and Insolvency Act (Canada);

(d) a significant number of members of the pension plan cease to be employed by the employer as a result of the discontinuance of all or part of the business of the employer or as a result of the reorganization of the business of the employer;

(e) all or a significant portion of the business carried on by the employer at a specific location is discontinued;

(f) all or part of the employer's business or all or part of the assets of the employer's business are sold, assigned or otherwise disposed of and the person who acquires the business or assets does not provide a pension plan for the members of the employer's pension plan who become employees of the person;

(g) the liability of the Guarantee Fund is likely to be substantially increased unless the pension plan is wound up in whole or in part;

(h) in the case of a multi-employer pension plan,

(i) there is a significant reduction in the number of members, or

(ii) there is a cessation of contributions under the pension plan or a significant reduction in such contributions; or

(i) any other prescribed event or prescribed circumstance occurs.

(2) In an order under subsection (1), the Superintendent shall specify the effective date of the wind up, the persons or class or classes of persons to whom the administrator shall give notice of the order and the information that shall be given in the notice.

74(1) A member in Ontario of a pension plan whose combination of age plus years of continuous employment or membership in the pension plan equals at least fifty-five, at the effective date of the wind up of the pension plan in whole or in part, has the right to receive,

(a) a pension in accordance with the terms of the pension plan, if, under the pension plan, the member is eligible for immediate payment of the pension benefit;

(b) a pension in accordance with the terms of the pension plan, beginning at the earlier of,

(i) the normal retirement date under the pension plan, or

(ii) the date on which the member would be entitled to an unreduced pension under the pension plan if the pension plan were [page431] not wound up and if the member's membership continued to that date; or

(c) a reduced pension in the amount payable under the terms of the pension plan beginning on the date on which the member would be entitled to the reduced pension under the pension plan if the pension plan were not wound up and if the member's membership continued to that date.

89(4) Where the Superintendent proposes to refuse to give an approval or consent or proposes to attach terms and conditions to an approval or consent under this Act or the regulations, other than a consent referred to in subsection (3.1) or (3.2), the Superintendent shall serve notice of the proposal, together with written reasons therefor, on the applicant for the approval or consent.

(5) Where the Superintendent proposes to make an order requiring the wind up of a pension plan or declaring a pension plan wound up, the Superintendent shall serve notice of the proposal, together with written reasons therefor, on the administrator and the employer, and the Superintendent may require the administrator to transmit a copy of the notice and the written reasons on such other persons or classes of persons or both as the Superintendent specifies in the notice to the administrator.

(6) A notice under subsection (1), (2), (3), (3.1), (3.2), (4) or (5) shall state that the person on whom the notice is served is entitled to a hearing by the Tribunal if the person delivers to the Tribunal, within thirty days after service of the notice under that subsection, notice in writing requiring a hearing, and the person may so require such a hearing.

(9) At or after the hearing, the Tribunal by order may direct the Superintendent to carry out or to refrain from carrying out the proposal and to take such action as the Tribunal considers the Superintendent ought to take in accordance with this Act and the regulations, and for such purposes, the Tribunal may substitute its opinion for that of the Superintendent.

91(1) A party to a proceeding before the Tribunal under section 89 may appeal to the Divisional Court from the decision or order of the Tribunal.

(B) The FSCO Act:

6(4) In appointing members to the Tribunal, the Lieutenant Governor in Council shall, to the extent practicable, appoint members who have experience and expertise in the regulated sectors.

7(2) In assigning members of the Tribunal to a panel, the chair shall take into consideration the requirements, if any, for experience and expertise to enable the panel to decide the issues raised in any matter before the Tribunal.

. . . . . [page432]

20. The Tribunal has exclusive jurisdiction to,

(a) exercise the powers conferred on it under this Act and every other Act that confers powers on or assigns duties to it; and

(b) determine all questions of fact or law that arise in any proceeding before it under any Act mentioned in clause (a).

21(4) An order of the Tribunal is final and conclusive for all purposes unless the Act under which the Tribunal made it provides for an appeal.

Notes

Note 1: In these reasons, the term "Superintendent" refers to the Superintendent of Financial Services or the Deputy Superintendent, Pension Division, appointed under the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 (the "FSCO Act").

Note 2: I note that Bill 236, An Act to amend the Pension Benefits Act, 1st Sess., 39th Leg., Ontario, 2009, received first reading on December 9, 2009. Under Bill 236, the authority for partial wind-ups is to be repealed. Thus, if Bill 236 is enacted, the core issue on this appeal will be rendered moot.

Note 3: In these reasons, the term "Hydro One" includes Hydro One's subsidiaries or affiliated corporations.

Note 4: In these reasons, Hydro One and the two respondent unions are sometimes collectively called the "Hydro One Group".

Note 5: See An Act to revise The Pension Benefits Act, S.O. 1987, c. 35, s. 70(1)(d).

Note 6: It appears that the word "important" was used in the French language version of s. 69(1)(d) of the Act from the time of the first official reporting in Ontario of that version: see Loi sur les rgimes de retraite, L.R.O. 1990, c. P.8.

Note 7: I note that s. 69(2) provides that, in a wind-up order under s. 69(1), the Superintendent is required to specify, among other matters, the persons or "class or classes of persons" to whom the plan administrator must provide notice of the order. Similar language appears in s. 89(5) of the Act, which concerns the notice to be given of a proposed wind-up of a pension plan or of a declaration that a pension plan is wound up. These provisions are designed to ensure that persons to be affected thereby receive notice of a wind-up.

Note 8: See, also, s. 10 of the former Interpretation Act, R.S.O. 1990, c. I.11.

Note 9: Under Bill 236, the Act will be amended to provide that grow-in benefits will apply to eligible plan members whose employment is terminated by their employer otherwise than for cause.