St. Marys Paper Inc. (Re), [1996] 1 S.C.R. 3

Ernst & Young Inc., Trustee in Bankruptcy Appellant

v.

Price Waterhouse Ltd., in its capacity as Administrator of the Pension Plan for Participating Unions of St. Marys Paper Inc. and the Pension Plan of Non-Union Employees of St. Marys Paper Inc., Former Employees of St. Marys Paper Inc. and the Communications, Energy and Paperworkers Union of Canada and Locals 47-0, 67, 69 and 133 thereof Respondents

and

Pension Commission of Ontario Intervener

Indexed as: St. Marys Paper Inc. (Re)

File No.: 24259.

1996: January 22.

Present: La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major* JJ.

on appeal from the court of appeal for ontario

Bankruptcy ‑‑ Trustee in bankruptcy ‑‑ Definition of employer ‑‑ Trustee rehiring employees ‑‑ Trustee's liability to employee pension plan ‑‑ Trustee making contributions to pension plans as goodwill gesture ‑‑ Trustee falling within definition of employer ‑‑ Appeal conceded to be moot ‑‑ Appeal not warranting favourable exercise of Court's discretion to hear appeal.

Cases Cited

Referred to: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

APPEAL from a judgment of the Ontario Court of Appeal (1994), 1994 CanLII 1232 (ON CA), 19 O.R. (3d) 163, 73 O.A.C. 1, 116 D.L.R. (4th) 448, 26 C.B.R. (3d) 273, 4 C.C.P.B. 233, dismissing an appeal from a judgment of Farley J. (1993), 1993 CanLII 5451 (ON SC), 15 O.R. (3d) 359, 107 D.L.R. (4th) 715, 1 C.C.P.B. 27. Appeal dismissed.

Lyndon A. J. Barnes and R. Gordon Marantz, Q.C., for the appellant.

No one appeared for the respondent Price Waterhouse Ltd. in its capacity as Administrator of the Pension Plan for Participating Unions of St. Marys Paper Inc. and the Pension Plan of Non-Union Employees of St. Marys Paper Inc.

Chris G. Paliare and Clifton P. Prophet, for the respondents the Former Employees of St. Marys Paper Inc. and the Communications, Energy and Paperworkers Union of Canada and Locals 47-0, 67, 69 and 133 thereof.

Robert W. Staley, Paul Dempsey and Jacqueline Hatherly, for the intervener.

The judgment of the Court was delivered orally by

[1] La Forest J. ‑‑ We are all of the view that this appeal is moot, as conceded by the appellant, and that the appeal does not warrant the favourable exercise of our discretion to hear it pursuant to the criteria set forth in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

[2] Accordingly the appeal is dismissed with costs. Justice Major takes no part in this decision.

Judgment accordingly.

Solicitors for the appellant: Osler, Hoskin & Harcourt, Toronto.

Solicitors for the respondent Price Waterhouse Ltd., in its capacity as Administrator of the Pension Plan for Participating Unions of St. Marys Paper Inc. and the Pension Plan of Non-Union Employees of St. Marys Paper Inc.: Fasken, Campbell, Godfrey, Toronto.

Solicitors for the respondents the Former Employees of St. Marys Paper Inc. and the Communications, Energy and Paperworkers Union of Canada and Locals 47-0, 67, 69 and 133 thereof: Gowling, Strathy & Henderson, Toronto.

Solicitors for the intervener: Bennett, Jones, Verchere, Toronto.

*Major J. took no part in the judgment.