Court File and Parties

COURT FILE NO.: CV-19-00698308-00CL DATE: 20230704 SUPERIOR COURT OF JUSTICE – ONTARIO – COMMERCIAL LIST

Application under Rule 14.05(3) of the Rules of Civil Procedure

RE: IBM CANADA LIMITED, Applicant

BEFORE: Peter J. Osborne J.

COUNSEL: David A. Stamp, lawyer for IBM Canada, Applicant Ari Kaplan, lawyer for Proposed Representative Respondents Michael Scott, counsel for the Regulator, FSRA

HEARD: July 4, 2023

Endorsement

[1] This motion proceeded today on the consent of all parties. Defined terms in this Endorsement have the meaning given to them in the motion materials unless otherwise stated.

[2] In the Application, IBM is seeking rectification in respect of certain amendments made to its retirement plan on the basis that there were drafting errors with the result that the final document did not reflect the intention of the parties.

[3] The errors affect 210 current and former employees of IBM who are Affected Members (as defined in the motion materials).

[4] All Affected Members have been sent a copy of the Notice of Application and other materials. Certain of those Affected Members, including Dario Ceci and Jacinthe Ratelle, retained Mr. Ari Kaplan as counsel in respect of this Application, and subsequently those Representative Respondents and IBM entered into a settlement agreement.

[5] That settlement agreement contemplates the proposed representation order sought today and provides that all parties to the settlement, being the Representative Respondents and IBM, consent to the rectification sought by IBM in this Application on behalf of the Affected Members. It contemplates, among other things, that Mr. Kaplan would be appointed as Representative Counsel on behalf of Affected Members.

[6] On this motion returnable today, IBM seeks a representation order appointing the Representative Respondents to represent the Affected Members in this Application, subject to one exception (Mr. Yvon Bourbonnais who has requested that he not be represented by them).

[7] Counsel for the Financial Services Regulatory Authority of Ontario (FSRA) appears today and confirms that, as reflected in the motion materials, it has had discussions with IBM about this Application and the rectification and relief sought. Counsel for FSRA, Mr. Scott, does not oppose the relief sought today on this motion within the Application. Moreover, counsel confirms that FSRA consents and agrees that this Court has jurisdiction to grant the relief sought on the motion and in the Application, and further that FSRA does not and will not oppose the rectification relief sought on the Application.

[8] The motion today is brought pursuant to Rule 10.01(1)(f). I am satisfied that, for the reasons set out in the motion materials, it is necessary or desirable to grant the order sought today. Rule 10 is to be given a liberal interpretation and I am satisfied that the balance of convenience favours the representation order being sought: see Police Retirees of Ontario Inc. v. Ontario Municipal Employees Retirement Board, (1997), 35 O.R. (3d) 177 (Gen. Div.) at para. 16.

[9] I am further satisfied that members of a pension plan share the requisite commonality of interest to constitute a “class of persons”: McGee v London Life Insurance Co., (2008), 63 C.P.C. (6th) 107 (ONSC), at para. 29.

[10] Moreover, in this case, the specific proposed representatives (i.e., the Representative Respondents) are appropriate, and they are in exactly the same position as are the balance of the Affected Members and have the same potential causes of action. If, as and when the Settlement Agreement is approved, they will be eligible to receive payment pursuant to the same agreed-upon formula as applies to all other Affected Members.

[11] I specifically canvassed with Mr. Kaplan, and he confirmed, that in his view he is entirely able of acting for all Affected Members since they will all be treated pursuant to the Settlement Agreement if approved, including the agreed-upon formula contained as part of the settlement, notwithstanding that some Affected Members will receive payments or benefits and others may not. He is clear that this presents no conflict of interest.

[12] Notwithstanding that Mr. Kaplan confirmed his ability and intention to act as Representative Counsel for all Affected Members, he drew to my attention certain paragraphs in the affidavit of Dario Ceci sworn June 23, 2023 (Motion Record, Tab E, CaseLines A317) and particularly paras. 11 – 20 and 42 – 54.

[13] In addition, Mr. Kaplan stated that he sought clarification from the FSRA that it agreed that, for the purposes of this action, this Court has jurisdiction to grant the relief sought and also that with respect to the substance of the relief, FSRA did not oppose the relief sought. As noted above, Mr. Scott on behalf of FSRA confirmed his client’s agreement on these two points.

[14] Mr. Kaplan then referenced a different proceeding in respect of which a judgment is apparently under reserve at the Court of Appeal for Ontario and in which proceeding FSRA took, he submits, a contrary position with respect to jurisdiction. Mr. Scott confirmed in Court today that FSRA agreed with the Applicant here that the two cases were and are distinguishable and that the position being taken by FSRA in this matter is not inconsistent with the position it has taken in that other matter (Brewers Retail v. Campbell, 2022 ONSC 850).

[15] The proposed Representation Order is appropriate. Order to go in the form signed by me today which is effective immediately and without the necessity of issuing and entering.

[16] This Application will be heard on the merits on September 14, 2023, commencing at 10 AM and continuing as necessary for two hours. I have asked Mr. Scott to confirm that he will be present for argument should issues or questions arise and he has confirmed that he will be present.

Osborne J. Date: July 4, 2023