Court File and Parties

COURT FILE NO.: CV-21-88128-00ES DATE: 2023/04/21 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF JACKIE CRAY, deceased January 20, 2021

RE: Sofie Vaux-Lacelle, Applicant AND OMERS Administration Corporation and Chelsea Cray as Estate Trustee for the Estate of Jackie Cray, Respondents

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: Michael Rappaport, for the Applicant Noemie Ducret, for the Respondent Estate (moving party) Sukhvinder Dulay and Sydney Edmonds for OMERS, Administration Corporation

HEARD: February 21, 2023 by videoconference

Endorsement

[1] The Estate of the late Jackie Cray brings this motion to dismiss the application herein because there is a more suitable forum for the determination of the issue in this proceeding, which is whether the applicant is entitled to the spousal survivor’s benefit in the deceased’s OMERS pension.

[2] The late Mr. Cray died in January 2021 without a will. The applicant is seeking a declaration that she was the deceased’s common-law spouse for the purposes of his OMERS pension wherein she must establish that she and the deceased lived together in a conjugal relationship for at least three continuous years leading up to the date of his death. Her application is opposed by the deceased’s Estate.

[3] The court is satisfied that there are two possible avenues to decide this pension entitlement issue. One is to pursue a claim, such as this, by way of an application in the Superior Court of Justice. Some examples cited by the applicant in this proceeding are Carvalho v. Amorim, 2021 ONSC 2940 and Carrigan v. Quinn, 2011 ONSC 585.

[4] The other is to apply under the OMERS plan which contains an administrative procedure and a Dispute Resolution Process (“DRP”) to adjudicate entitlement issues. This procedure involves a written application and information gathering procedure at first instance, then a Staff Review of an initial decision is available. Also available is a “President’s Determination” and ultimately a hearing by an Appeals Committee of the Board of Directors, which can be subject to Judicial Review in the Divisional Court. The internal OMERS process for resolving entitlement issues is not a statutory or legislated process, rather it is created under the Plan text.

[5] I am persuaded that irrespective of which forum is chosen, the court or the Appeals Committee, the adjudication will involve the application of the same test for the existence of a common law spousal relationship set out in Molodowich v. Penttinen, the so-called “Molodowich factors”.

[6] For the purposes of this motion, I do not go into the facts in detail, nor will I attempt to apply the Molodowich factors. Suffice it to say, the applicant and the late Mr. Cray had a somewhat complicated relationship. They were allegedly common-law spouses for over 12 years, but maintained separate albeit nearby residences in Ottawa due to their respective family situations, and particularly due to the needs of their dependents.

[7] The Estate argues that the OMERS dispute resolution process is clearly the best way to determine whether the applicant Ms. Lacelle was the late Mr. Cray’s common-law spouse so as to be eligible for the OMERS pension widow’s benefit. The OMERS process will involve a faster, less expensive determination by a body with subject matter expertise, according to counsel for the Estate. I do not question that this is a reasonable point of view.

[8] On the other hand, in the exercise of the court’s discretion, I have decided the matter can proceed by way of this application in the Superior Court. I have arrived at this conclusion for the following reasons considered collectively:

• When, as in the present circumstances, there are two appropriate and efficacious avenues for resolution of a dispute, the applicant’s choice should be given considerable weight.
• This case involves factual complexity and difficult credibility determinations which are arguably best addressed through the Rules of Civil Procedure, which provide for documentary productions, cross-examinations, subpoena powers and the application of the rules of civil evidence in a hearing supervised by a judge.
• The lump sum value of the benefit available to an eligible spouse in this case is $926,901. This is a sufficiently large amount to justify court proceedings, even though more expensive than the internal OMERS process.
• There is more flexibility surrounding possible settlement in the court process, including judicial pre-trials, whereas OMERS must pay out amounts strictly in accordance with the Plan provisions and the Pension Benefits Act.
• There will likely be some witnesses with special needs and accommodation requirements.

[9] This motion by the Estate to dismiss this application is accordingly dismissed. The parties will schedule a case conference before an associate judge for the purpose of agreeing on and time tabling future steps in this application.

[10] If the applicant wishes to seek costs of this motion, she is to provide a brief costs submission within 14 days of the release of this endorsement and the respondent estate may respond within 14 days of receiving the Applicant’s submission. Counsel for OMERS were very helpful to the court in this matter and advise their client does not seek costs.

Justice Charles T. Hackland Date: April 21, 2023