ONTARIO

SUPERIOR COURT OF JUSTICE

COMERCIAL LIST

COURT FILE NO.: CV-11-9469-00CL
DATE: 20120702

BETWEEN:

GREGORY SHAW

Applicant - and - HEALTHCARE OF ONTARIO PENSION PLAN(“HOOPP”), HELEN FETTERLY, DAN ANDERSON, ADRIAN FOSTER, R. WAYNE GLADSTONE, MARLENE PUFFER, PATTY ROUT, DEEPAK SHUKLA, JOYCE BAILEY, RONALD MEREDITH-JONES, LESLEY BELL, JON CLARK, JULIE GIRALDI, MARTIN PARKER, LOUIS RODRIGUES, JAMES SANDERS, BRYCE WALKER, KEVIN SMITH, MARLENE IZZARD in their capacity as Trustees of the Healthcare of Ontario Pension Plan, and ONTARIO HOSPITAL ASSOCIATION Respondents

Andrew J. Hatnay and Demetrios Yiokaris, for the Applicant
Peter H. Griffin and Emily Graham, for the Respondents

HEARD: June 14, 2012

Newbould J.

[1] The applicant seeks a declaration that certain bonuses under his employment agreement with Ontario Hospital Association (OHA) which are described as “retention bonus” constitute pensionable earnings under the Healthcare of Ontario Pension Plan (HOOPP) for the purpose of calculating his pension benefits under the Plan.

[2] HOOPP is a multi-employer pension plan for employees of most hospitals across Ontario. It is a private, independently-governed pension trust settled jointly by OHA and four settlor unions

[3] Mr. Shaw was 62 years old in November 2011. Over the course of his career, Mr. Shaw has worked with four Ontario hospitals and the OHA as a senior human resources executive. He has been accruing pension benefits in the Plan since February 1, 1983. He served on the Board of Trustees of the Plan from 2004 until 2009.

[4] In February, 2004, Mr. Shaw was employed with Sunnybrook and Women’s College Health Sciences Centre as Vice-President of Human Resources and Leadership Development. During that time, he accepted a secondment with the OHA as interim Vice-President of Strategic Human Resource Services on a one day per week basis. He continued to be employed with OHA on this basis until November, 2004, when he accepted a full-time position with OHA as Vice-President of Strategic Human Resource Services.

[5] The terms of Mr. Shaw’s employment with OHA were reflected in an employment agreement made as of August, 2004. The term of the agreement was for an initial period of five years, effective November 29, 2004, to continue until either: (a) Mr. Shaw’s death; (b) his attaining age 65; or (c) the termination of his employment due to his resignation or termination by OHA. After the initial five-year term, the employment agreement was to be automatically renewed for successive one-year terms unless either Mr. Shaw or OHA notified the other in writing of its intention not to renew three months prior to the expiry of the initial five-year term, or each subsequent one-year term, as applicable.

[6] The effect of articles 1.2 and 5 of the employment agreement was that regardless of whether Mr. Shaw resigned from OHA on his own volition or if he was terminated by OHA prior to the expiry of the initial five-year term, he was entitled to receive the greater of the balance of all payments of salary and benefits owing under the agreement, or 24 months’ salary and benefits.

[7] The evidence of Mr. Shaw, which has not been denied by anyone from OHA, is that in the summer of 2008, Tom Closson, the CEO of OHA, approached him with a request to amend the employment agreement. Mr. Closson told Mr. Shaw that on OHA’s interpretation of the severance provisions in articles 1.2 and 5.2 of the agreement, section 1.2 provided him with an “incentive to leave” because even if Mr. Shaw resigned from OHA he would receive the greater of the balance of all payments of salary and benefits owing under the contract or 24 months’ salary. Mr. Closson said this gave Mr. Shaw an incentive to resign. Mr. Closson told Mr. Shaw that he wanted to amend the agreement to remove the “incentive to leave” and give him an “incentive to stay” with the OHA.

[8] Over the subsequent months, Mr. Closson and Mr. Shaw met several times to discuss various proposals put forward by the OHA to amend the employment agreement. The focus of the proposals by Mr. Closson was that in exchange for Mr. Shaw agreeing to amend the employment agreement to remove the existing language in articles 1.2 and 5.2 that operated as an incentive for Mr. Shaw to leave, OHA would make cash payments to Mr. Shaw over subsequent years, in addition to his salary. The payments would be called “Retention Bonuses”.

[9] During the negotiations between Mr. Shaw and Mr. Closson, the OHA retained an actuary with the firm Watson Wyatt to provide the OHA with actuarial estimates of the actuarial effect on Shaw’s pension benefit entitlements from the Plan by the substitution of the termination payments with non-discretionary bonuses. HOOPP points out that it had nothing to do with the retainer of the actuary by OHA and knew nothing of it. One of these actuarial estimates was provided to Mr. Shaw by Mr. Closson.

[10] The actuarial calculations indicated that in comparison to the value of the existing severance provisions in the employment agreement, both in terms of salary payments received and the increases to Mr. Shaw’s pension benefits payable from the Plan, the value of the proposed retention bonuses (both in terms of payments to be received and the increases in pension benefits from the Plan) would result in an overall compensation increase to Mr. Shaw of approximately $1,971,500. The portion of that figure attributable to the increase to Mr. Shaw’s pension entitlement from the Plan was approximately $1.275 million.

[11] Mr. Shaw’s evidence, again not denied, is that based on the calculations by OHA’s actuary, he agreed to the amendment proposed by OHA to substitute the salary continuation payments for the non-discretionary retention bonus payments. The payment of the retention bonuses, and the resulting increase to his pension benefit entitlement from the Plan, was the reason he agreed to amend his employment agreement.

[12] The amended agreement provided for a retention bonus of $100,000 on November 1, 2009, $150,000 on October 31, 2010 and $225,000 on October 21, 2011, provided that Mr. Shaw had not resigned from his position with OHA. The amended agreement also increased the term of Mr. Shaw's employment to seven years so that it commenced on November 29, 2004 and ended on October 31, 2011, to continue until his death, his attaining 65 years of age or unless terminated in accordance with the agreement, with automatic one year renewals unless either side gave notice of its intention not to do so.

[13] On or about November, 2009, in accordance with the amended agreement, Mr. Shaw received his first retention bonus of $100,000 from OHA. Approximately $36,400 was deducted by the OHA for withholding taxes, and $9,600 was deducted as Mr. Shaw’s required contribution to the Plan and sent by OHA to HOOPP for deposit into the Plan. HOOPP takes the position that when the deposit was sent by OHA to it, the purpose of the payment was misrepresented, or at least incomplete.

[14] Before OHA deducted Mr. Shaw's contribution to the Plan and remitted it to OHA, an employee of OHA telephoned HOOPP on its 800 line and had a discussion as to whether the bonus to Mr. Shaw was pensionable. There is a transcript of the call. The representative of HOOPP, Ms. Kristy Thacker, concluded the conversation by confirming that "it would be pensionable… just… because it is part of his… annual…umm… compensation". HOOPP takes the position that not all relevant information was provided to Ms. Thacker and that it was only later that HOOPP was provided with a copy of the employment agreement with the amended terms.

[15] On May 18, 2010, the OHA terminated Mr. Shaw’s employment. It was not for cause.

[16] A copy of Mr. Shaw's employment agreement was provided to OHA in July 2010. On July 26, 2010 Ms. Barbara Thomson, a senior vice president of HOOPP, wrote to Ms. Giraldi, the chief human resources officer of OHA informing her that it was HOOPP's position that the bonuses payable to Mr. Shaw were not pensionable within the terms of the Plan. The same day an OHA representative called HOOPP and spoke with a client service specialist who, at the conclusion of the conversation said "I did look into it for you and it is pensionable." Exactly what the client service specialist of HOOPP had at the time is unclear. In the end, after further correspondence, HOOPP maintained that the bonuses for Mr. Shaw under his amended employment agreement were not pensionable, i.e. were not to be taken into account in calculating his income for purposes of his pension.

Analysis

[17] In the end, whether the bonuses payable to Mr. Shaw are to be taken into account in calculating his pension depends upon the terms of his employment agreement and the terms of the Plan. I do not think that what was said by employees of HOOPP in telephone conversations has any bearing on the issue. What was described to them in the telephone conversations regarding Mr. Shaw's contract was cryptic and the responses to the OHA representatives could not be taken as any admission as to the meaning of the Plan in so far as it relates to Mr. Shaw's written employment agreement. There is not any evidence that these employees of HOOPP read the terms of the Plan before responding to the callers from OHA, and they did not have a copy of Mr. Shaw’s written employment agreement.

[18] If OHA wanted confirmation from HOOPP that the bonuses for Mr. Shaw were pensionable, it ought to have first provided a copy of the employment agreement to HOOPP. It did not do so, but once it did it quickly received HOOPP's position that the bonuses were not pensionable.

(a) Employment agreement terms

[19] The amended employment agreement dated November 21, 2008 provides:

(b) Article 1.3 RETENTION BONUSES

Provided that the Executive has not resigned from his position pursuant to Article 5.1 of this Agreement, or been terminated for just cause, the Employer shall pay the Executive retention bonuses as follows:

(i) on November 1, 2009, a retention bonus in the amount of $100,000.00;

(ii) on October 31, 2010, a retention bonus in the amount of $150,000.00; and

(iii) on October 21, 2011, a retention bonus in the amount of $225,000.00.

The Executive understands that the additional considerations in this Agreement are in exchange for the Executive waiving his pre-existing right under article 1.2 to trigger severance under article 5.2 should he choose to not renew his employment. For purposes of clarity, severance in this Agreement under article 5 is only payable should the Employer decide to sever the Executive or if article 5.4 applies.

In the event that the Executive is terminated without cause, becomes totally disabled or dies during the term of this Agreement, the above-mentioned retention bonuses will remain payable.

[20] The term of the amended agreement was extended to seven years, with automatic renewals. Article 1.2 of the Amending Agreement Amendment provides:

Article 1.2 TERM OF EMPLOYMENT

The Executive shall be employed by the Employer for a term of seven years commencing on November 29, 2004 and ending October 31, 2011 and such employment shall continue until the earliest of:

(i) the Executive’s death;

(ii) the Executive attaining 65 years of age; or

(iii) termination in accordance with Article 5 of this Agreement.

This seven year term shall be automatically renewed for successive one year terms until either party notifies the other in writing of its intention not to do so three months in advance of the expiry of the initial seven year term or subsequent one year terms. In the event the Employer chooses not to renew the Executive’s employment at any time, then the provisions of Article 5.2 apply.

(b) Terms of the Plan

[21] Under section 6.2 of the plan, the annual pension for a member is equal to a percentage of the members "average annualized earnings". In making the calculations, the administrator of the Plan is required to calculate the member’s “average annualized earnings”, as well as the member’s total years of contributory service. Section 2.5 of the Plan Text defines “average annualized earnings” as follows:

2.5 “average annualized earnings” means the average of a member’s annualized earnings during any consecutive periods totalling five years of eligibility service yielding the highest average.

If a member has less than five years of eligibility service her average annualized earnings shall be based on the average of her actual annualized earnings over the full period of contributory service.

[22] The phrase “annualized earnings” is defined in section 2.4 of the Plan Text as “a member’s pensionable earnings in a calendar year, determined on a 52-week, full-time basis.

[23] The phrase “Pensionable Earnings” is defined in section 2.18 of the Plan as follows:

2.18 “ pensionable earnings ” means wages, salary and other amounts paid in relation to hours, weeks, or other specific periods of time for which a member is employed, and that form a regular and integral part of the member’s remuneration.

Pensionable earnings do not include overtime pay, shift premiums or any payment determined by the administrator and in accordance with the Income Tax Act, not to be part of the member’s pensionable earnings. [1]

[24] The issue in this case is whether the bonus payments included in Mr. Shaw's amended employment agreement fall within the first paragraph of section 2.18 of the Plan.

[25] Mr. Shaw says that the bonus payments are bonuses in accordance with the terms of his agreement and, applying the definition of "pensionable earnings", are "salary" or "other amounts paid in relation to… specific periods of time… that form a regular and integral part of [his] remuneration”.

[26] HOOPP takes the position that the bonuses were to buy him out of a favourable term in his agreement that permitted him to trigger a severance payment to him of two years’ salary if he decided not to renew his five-year employment agreement, and that these buy-out payments bear none of the hallmarks of a retention bonus. Mr. Shaw takes a position that bonuses were not to buy him out of anything, but rather were retention bonuses to induce him to stay at OHA, or as stated by Mr. Closson, to remove the “incentive to leave” and give him an “incentive to stay” with OHA.

[27] I do not think it matters what one calls the payments, but rather what the terms of the payments are and how these terms fit into the definition of "pensionable earnings" in the Plan. I have some difficulty however, with the assertion of HOOPP that OHA was simply buying out a term of Mr. Shaw's employment agreement. Based upon the figures contained in the actuarial report prepared by OHA, the two-year severance in the original employment agreement of Mr. Shaw that he would have been entitled to would have been in the order of $760,000. Under the amended agreement, he was entitled to three bonus payments from OHA totaling $475,000 plus, if he were terminated during the term of the agreement, an additional payment of two years' severance, or a further amount of at least $760,000. If he was not terminated during the term of the agreement, he would receive an extra two years salary, including normal bonus, which would be at least a $760,000. Thus, it would make no sense if OHA was simply trying to buy Mr. Shaw out of a term favorable to him that it would do so by agreeing to pay him for an additional two years’ employment term plus $475,000.

[28] HOOPP maintains an Administration Manual, an interpretive guide which includes a section that addresses pensionable earnings. It is given out to employers and used by HOOPP.

[29] Section 4.2 of the Administration Manual addresses pensionable earnings as follows:

Pensionable Earnings - Guiding Principles

Pensionable earnings are the regular straight time portion of wages, salary and other amounts paid to members in relation to hours, weeks, or other specific periods of time for which a member is employed, and that form a regular and integral part of the member’s remuneration. Pensionable earnings may not exceed 52 weeks per year.

Application

Below is a list of common types of earnings and compensation and whether they are pensionable. Please note that this list is intended to be illustrative but is not exhaustive as compensation types vary widely from employer to employer. The above guiding principles and the examples below should be used when determining whether earnings are pensionable or not.

Examples of pensionable and non-pensionable earnings

Pensionable Earnings

Non-pensionable Earnings

A bonus that represents a fundamental and recurring component of an employer’s long-term compensation program.*

A one-off or ad hoc bonus that is not part of an employer’s long-term compensation program, even if an employee receives it in more than one year.

• Contributions deducted for pensionable bonuses are treated the same as retroactive pay. When a pensionable bonus is paid for a previous calendar year, contributions must be deducted using the contribution rates in effect for the year in which the bonus applies, not for the year in which it is paid.

[30] The example in the above box is one of 10 examples, but is the one that deals with a bonus. HOOPP says that the bonus to Mr. Shaw payable over three years is a one-off or ad hoc bonus that is not part of OHA's long-term compensation program, and thus is a non-pensionable earning, as indicated in the box to the right. Mr. Shaw takes the position that the manual is not determinative and that is to the Plan that one must look. Further, he takes the position that the definition of "pensionable earnings" in the Plan does not refer to "an employer’s long-term compensation program" but rather to “the member’s remuneration".

[31] In argument, Mr. Griffin conceded that it is the terms of the Plan that govern, and not the manual, but contended that the manual was consistent with the Plan.

[32] The principles of interpretation for a pension plan are well settled. If the pension fund, or any part of it, is not subject to a trust, then any issues relating to outstanding pension benefits or to surplus entitlement must be resolved by applying the principles which pertain to the interpretation of contracts to the pension plan. If, however, the fund is impressed with a trust, different considerations apply. The trust is not a trust for a purpose, but a classic trust. It is governed by equity, and, to the extent that applicable equitable principles conflict with plan provisions, equity must prevail. See Cory J. in Schmidt v. Air Products Canada Ltd. , 1994 104 (SCC) , [1994] 2 S.C.R. 611 at paras. 91 and 92 .

[33] In Rivett v. Hospitals of Ontario Pension Plan, [1995] O.J. No. 3270 , Farley J. stated the following regarding Schmidt :

This would also involve the administration of the pension fund being governed by trust law principles and a fiduciary duty being owed by the administrators to the members of the plan. I would think that this duty must be exercised initially on the primary basis - i.e., to the members as a whole. Section 22 of The Pension Benefits Act, R.S.O. 1990, c. P.8 ("PBA") requires that the administrators of a pension plan exercise the care, diligence and skill of a person of ordinary prudence in dealing with another's property in the administration of the plan, to which is superadded the knowledge and skill which the administrator possesses by reason of his profession, business or calling.

[34] I will restate for ease of reference the definition of pensionable earnings, which is:

2.18 “ pensionable earnings ” means wages, salary and other amounts paid in relation to hours, weeks, or other specific periods of time for which a member is employed, and that form a regular and integral part of the member’s remuneration.

[35] In my view the three annual bonus payments referred to in Article 1.3 of the employment agreement can fairly be described as "other amounts paid in relation to… other specific periods of time for which a member is employed", thus falling within the first part of the definition of "pensionable earnings". They are amounts paid on three specific dates, each one year apart, with the first payment to commence one year after the amended agreement was made.

[36] The crux of the issue is whether it can be said that the three bonus payments "form a regular and integral part of the member’s remuneration".

[37] In this regard, the position taken by Ms. Thomson on behalf of HOOPP in her letter of July 26, 2010 to Ms. Giraldi explaining why the bonus payments were not pensionable appears to have equated the language in section 2.18 requiring the payments to be a regular and integral part of Mr. Shaw's remuneration with the language contained in the manual that described pensionable earnings as a bonus that represents a fundamental and recurring component of an employer’s long-term compensation program. The letter essentially provided the reasons contained in the manual for concluding that Mr. Shaw's three bonuses were not pensionable earnings. The letter stated:

A bonus is pensionable if it represents a fundamental and recurring component of an employer's long-term compensation program. Specifically, section 2.18 of the Plan Text defines pensionable earnings to mean " wages, salary and other amounts paid in relation to hours, weeks, or other specific periods of time for which a member is employed, and that form a regular and integral part of the member’s remuneration ".

While the amount of lump sum bonus payments may vary from year to year, such bonus payments are pensionable if they form a regular part of a compensation program and are expected to occur each year. Employee contributions are deducted from these payments. Also, HOOPP takes these earnings into account when determining a member’s annualized earnings and average annualized earnings, if applicable.

In contrast, a one-time or ad hoc bonus is not pensionable since it does not occur on a regular basis and does not form a long-term component of an employer's compensation program. On this basis, a one-time bonus such as a signing or retention bonus would not be pensionable.

[38] The notion of a one-time or ad hoc bonus contained in the manual, and contained in the letter of Ms. Thomson to Mr. Giraldi, is that it is something different from a long-term component of an employer's compensation program. Exactly what is meant by a program is not stated, but presumably refers to a program of general application for an employer's employees.

[39] The statement in the letter of Ms. Thomson that one of the requirements for bonus payments to be pensionable is if they "are expected to occur each year" is not contained in the manual, nor is it contained in the definition of pensionable earnings in section 2.18 of the Plan. It perhaps, however, gives some meaning to the language in section 2.18 that requires the payments to form "a regular… part of the member’s remuneration". If a bonus is expected to occur each year, or to be "regular", presumably it is a bonus that would be expected to occur each year going forward. It could not be the case that the bonus had to be part of the member’s remuneration from the outset of employment. Otherwise it would not be possible for an employee part way during his or her employment to have the terms of employment change to permit a bonus in the future.

[40] Mr. Shaw was 59 years of age when the amendment to the employment agreement was made on November 21, 2008. The amended agreement provided in article 1.2 that it he would be employed for seven years ending on October 31, 2011, by which time he would be 62 years of age, and continue until the earlier of his death or his attaining 65 years of age or termination by the employer. It also provided that it would automatically renew for successive one-year terms unless either party gave notice of its intention not to do so three months in advance. If the agreement had simply stated that it would end on October 31, 2011, it could perhaps be said that the three bonus payments to be made on November 1, 2009, October 31, 2010 and October 21, 2011 were a regular part of Mr. Shaw's employment.

[41] Could it be said to be regular in the circumstances as here where under the agreement Mr. Shaw could continue to be employed for three further years until age 65 after the third bonus payment had been paid on October 31, 2011? There is no evidence that at the time of the amendment to Mr. Shaw's employment agreement there was any intention on the part of HOOPP to terminate it before the end of its seven-year term or of either party to either extend or not extend the agreement following the seven-year term. On the face of the amended agreement, Mr. Shaw's employment could have continued after the third bonus payment had been made, in which case there would have been no further bonus paid. In this respect, article 1.3 which provides for the retention bonus payments is a peculiar clause as one would have expected that if the intent was to incentivize Mr. Shaw to stay employed at OHC, the retention bonus payments would have continued during the extended term of employment after the initial seven-year term. Perhaps an inference could be drawn that as the bonus payments were to terminate on October 21, 2011, there was no intention on the part of OHC at the time of the amendment to give Mr. Shaw an incentive to stay beyond that date.

[42] In order for a bonus to be a "regular and integral part" of Mr. Shaw's remuneration, must it be regular in the sense that it is expected to continue for the remainder of Mr. Shaw's employment, or regular in the sense that it is to occur regularly for some period of time short of the termination of his employment? The Concise Oxford English Dictionary, 11th edition, includes “usual or customary" in its definition of the word regular. The Merriam-Webster dictionary includes “recurring, attending, or functioning at fixed, uniform, or normal intervals" in its definition of the word regular. The word regular derives from the Latin word "regula", meaning "a rule". That suggests that the word regular could be taken to mean "as a rule".

[43] The need for a bonus to be "regular" may be gleaned from the affidavit of Mr. Hill, the Director, Policy Development at HOOPP. He has had extensive experience in pension policy and pension administration. His affidavit at paragraph 25 describes two ways in which the Plan would be affected if the HOOPP rules permitted the inclusion of an ad hoc, one-off payment or non-recurring bonuses, including ones payable over a number of years.

[44] The first is that the calculation of the pensions of members with such payments would be inflated. Their annualized earnings would spike in the years in which the bonuses were paid and since members tend to have their highest earnings towards the end of their careers, it is likely their average annualized earnings based on the best five-year feature would also increase. Accordingly a member could retire and receive a larger pension based on an average annualized earnings amount that had spiked due to the ad hoc bonus payments. The second is that in the calculation of such a member’s contributions, the member would have made contributions to the plan based on (i) basic pay only for most of their careers, and (ii) basic pay plus the non-pensionable bonus for the short number of years they received it. The HOOPP Board sets contribution rates based on industry wide, long-term earnings assumptions. As a result, the amount of contributions remitted on ad hoc bonuses would not be high enough to cover the actual value of the incremental pension benefits that would accrue to the member who received such bonus payments.

[45] The effect of the bonus provisions in the amended employment agreement reflects the concerns of Mr. Hill. The three payments to Mr. Shaw have a combined value of $475,000. If those payments were considered to be pensionable, Mr. Shaw would contribute 9.6%, or $45,600, to the Plan. Those contributions, however, would give rise to a pension benefit the present value of which is $1.275 million, nearly 28 times the value of the contributions themselves. OHA would also be required to make contributions, and while there is no evidence as to what amount would have to be paid by OHA resulting from the total payments of $475,000, it would be some fraction of that, with the result that the bulk of the present value of $1.275 million would have been unfunded.

[46] In Rivett v. Hospitals of Ontario Pension Plan , Farley J. observed that it “must be kept in mind that the "extra" money to fund the plaintiff's interpretative version must come from somewhere - it does not come from out of thin air, nor is the burden only upon the employer hospitals. To the extent that the plaintiff receives this "extra" benefit, there is a corresponding burden upon not only the employers but also on the employees who must contribute their share to the Plan”. The unfairness to those other employees is something that an administrator of a pension plan with equitable trust obligations would be expected to take into account.

[47] A pension plan must be interpreted taking into account its fundamental purpose, which is to provide a pension funded on actuarial assumptions fair to all employee beneficiaries under the Plan. This includes long-term earnings assumptions which require payments by an employer and, in the case of contributory plans, by the employee which should reflect those assumptions. I take the meaning of the word "regular" in section 1.28 of the Plan to require that the amounts paid to an employee, which are the basis for contributions to the Plan, are paid as a rule or usual or customary. In my view, the three bonus retention payments do not fall within this meaning.

[48] Accordingly, in my view, the three bonus retention payments are not pensionable earnings within the meaning of section 2.18 of the Plan. In the circumstances, the application is dismissed.

[49] I have not heard cost submissions. If HOOPP requests cost, brief written submissions along with a proper cost outline may be made within 10 days and Mr. Shaw shall have 10 further days to reply with brief written submissions.

Newbould J.

Released: July 02, 2012

COURT FILE NO.: CV-11-9469-00CL
DATE: 20120702

ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N:

GREGORY SHAW v. HEALTHCARE OF ONTARIO PENSION PLAN (“HOOPP”) ET AL

REASONS FOR JUDGMENT
Newbould J.

Released: July 02, 2012

[^1]: This second paragraph in section 2.18 providing that pensionable earnings do not include any payment determined by the administrator not to be part of the member's pensionable earnings might suggest that the administrator has some overriding authority apart from what is provided in the first paragraph of section 2.18. However, Mr. Griffin made clear that HOOPP does not take such a position and that the issue is whether the bonus payments for Mr. Shaw fall within the first paragraph of section 2.18.