SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-40251500CP
DATE: 20130109

RE: O’Neill v. General Motors of Canada Limited

BEFORE: Master Glustein

COUNSEL:
L. Sokolov for the plaintiff

L. Fric for the defendant

ADDITIONAL REASONS

Nature of motion and overview

[1] Pursuant to paragraph 5 of my reasons dated December 22, 2012, I deliver these additional reasons as to the production of the 1994 and 1995 GMCL Financial Statements (previously defined as the “Financial Statements”). I reviewed the written submissions of O’Neill and GMCL received on January 7, 2013.

[2] I agree with O’Neill that the Financial Statements are “documents widely distributed to Class Members respecting post-retirement benefits” and as such are “additional common documents” under Paragraph 9.

Analysis

[3] I address each of the “widely distributed to Class Members” and “respecting post-retirement benefits” requirements below.

(a) The Financial Statements were widely distributed to Class Members

[4] The uncontested evidence of Ms. McCullough is that “GMCL’s annual reports were regularly provided or made available to employees”. This evidence is sufficient to meet the requirement of “widely distributed” which is necessary for the documents to be additional common documents.

[5] GMCL submits that merely having documents as “publicly available” would not meet the “widely distributed” requirement. While I do not dispute that proposition, Ms. McCullough’s evidence goes beyond the status of public availability. “Regularly provided” and “made available” meet the requirement of wide distribution.

(b) The Financial Statements are documents “respecting post-retirement benefits”

[6] The Financial Statements are documents “respecting post-retirement benefits”. GMCL submits that the documents are “accountings” and that the Financial Statements were not “distributed to plan members to explain benefits, or prepared exclusively for plan members’ consumption”.

[7] I find that the above definition proposed by GMCL of documents “respecting post-retirement benefits” is too narrow. I accept O’Neill’s submission that the documents “respect” post-retirement benefits since (i) both the 1994 and 1995 Financial Statements make specific reference to “post-retirement benefits other than pensions” as “total current liabilities” representing a portion of GMCL’s current liabilities and (ii) both Financial Statements include the following note which specifically addresses post-retirement benefits:

Pensions and post-retirement benefits other than pensions: The cost of pension benefits provided under defined benefit pension plans and future retiree benefit costs other than pensions are accrued over the active service period of employees, to the date of full eligibility for such benefits.

[8] I do not accept GMCL’s submission that it is necessary that a document be distributed to “explain benefits” or be “prepared exclusively for plan members’ consumption” in order to be documents “respecting post-retirement benefits”. The word “respecting” is broad enough to include documents “with reference to” post-retirement benefits (see Concise Oxford English Dictionary, 11th ed., Oxford University Press, Toronto, at 1225) and the Financial Statements refer to the post-retirement benefit plans.

[9] I agree with GMCL’s submission that the purpose of distributing the Financial Statements would have been to let the “public at large” know of “GMCL’s financial results”. However, the definition of an additional common document under Paragraph 9 does not require that the predominant purpose be to explain post-retirement benefits, but only that the documents are “respecting” post-retirement benefits and widely distributed. For the reasons discussed above, I find that the Financial Statements meet both requirements.

[10] Both parties made submissions as to the relevance of the Financial Statements. I make no finding as to relevance as the only issue before me is whether the Financial Statements are “additional common documents” as defined at Paragraph 9.

Order and costs

[11] I dismiss GMCL’s motion to strike the Financial Statements as evidence from the O’Neill Affidavit. Any costs submissions related to these additional reasons should be included in the costs submissions to be provided pursuant to paragraph 64 of my December 22, 2012 reasons.

Master Benjamin Glustein

DATE: January 9, 2013