Docket:
T-769-11
Citation: 2014 FC 91
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, January 27,
2014
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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CONSEIL DE LA NATION HURONNE-WENDAT
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Applicant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
Overview
[1]
From 1985 to 2008, the Department of Indian
Affairs and Northern Development, represented herein by Her Majesty the Queen
(the Department), funded the full amount of the employer’s contribution to the
defined pension benefit plan of the employees of the Conseil
de la Nation Huronne-Wendat (the Council). Following
the Department’s decision to cap its contribution to the funding of this
pension plan and the other defined pension benefit plans still in place in
Aboriginal communities as of April 8, 2008, the Council brought this
action in damages in order to recover its shortfalls for the years 2008 to
2013. At the time of the hearing, the quantum of the Council’s claim was
established, by consent, in the amount of $134,128.90.
[2]
The Council alleges that the Department had a
contractual, if not an extracontractual, obligation to continue to bear the
actual cost of the employer’s contribution to its employees’ pension plan in
the absence of a decision to the contrary by the Treasury Board. Before the
hearing, the Council also based its claim on the Canadian government’s
fiduciary obligation toward Aboriginal peoples and sought a mandatory order of
the Court to require the respondent to continue funding the full amount of its
contribution to its employees’ pension plan. This last argument and the
application for a mandatory order have been abandoned.
[3]
The Department advances as a preliminary
argument that because the Council is asking the Court for an order depriving
its decision of its effects for the years 2008 to 2013, it should have first
applied for judicial review of that decision within the time limits set out in
subsection 18.1(2) of the Federal Courts Act, RSC (1985), c F-7. On
the merits, the Department submits that it respected all of its contractual
obligations and committed no act or omission to which extracontractual
liability could attach, and in any case, its decision to cap its funding of the
employer’s contribution to the pension plan of the Council’s employees is a
purely political one, made as an exercise of its spending power in Aboriginal
affairs, which means that it cannot be a source of liability for the State.
Factual background
[4]
To understand the background to this case, one
must go back to the late 1970s, when the Department transferred to the various
Indian band councils the responsibility of providing various government
services to their members. Because the objective was to create a true
Aboriginal public service, the Department decided to fund the employer’s
contribution to the various employee pension plans of the band councils and
other Aboriginal employers to enable them to attract and retain qualified
employees and provide similar social benefits to those provided by other levels
of government. At the time, employers could choose between a defined
contribution pension plan and a defined benefit pension plan. In 1979, the Atikamekw
Montagnais Council implemented the Native Benefits Plan (the NBP), a
defined benefit pension plan that currently has 85 participating employers and
manages half a billion dollars in assets.
[5]
The Council joined the NBP in 1985 and, like the
other 84 employers who are currently members of the NBP, it benefited from
coverage of the actual cost of its employer contribution to the plan until
April 1, 2008.
[6]
In 1991, the Treasury Board approved the
Department’s request to authorize new terms and conditions and additional funds
for band employee pension plans. At the time, there were only four defined benefits
pension plans (currently there are three), including the NBP, all of the other
employers having originally opted for a defined contribution pension plan.
[7]
The Treasury Board decision states that the
upper limit for departmental funding is set at 5.5% of eligible employee
payroll, while the employee’s share of the cost must be at least equal to the
employer’s share. However, for defined benefit pension plans, the decision
involves the following:
- authorization to continue
funding the four defined benefit plans (“The Native Benefits
Plan”, . . .) under their existing form and subject to the
specific exemptions in the guidelines appearing in Appendix I; and
- maintenance of the status
quo, retroactive to June 30, 1989, for the existing funding components
of these four plans in accordance with Appendix I, Section B, with
respect to the employer’s share, the employee’s share and the timing of locking
in the employer’s share.
[8]
Appendix I contains the following excerpt:
7. On June 27, 1989,
the department completed a detailed examination and analysis of the various
options available to reduce the potential negative effects of the program terms
and conditions arising from the setting of a maximum-level of contribution by
the department. The Department of Indian Affairs and Northern Development
(DIAND), in consultation with the Department of National Health and Welfare
(NHW) which also contributes to the cost of those plans, concluded that the
best solution would be to consider these four defined benefit plans as
exceptions to the basic program terms and conditions and maintain the status
quo for the funding of these plans by the departments.
. . .
10. In the context,
DIAND and NHW are proposing to exempt the four defined benefit pension plans from
only those specific requirements of the program terms and conditions which
impact directly on these plans. An exemption would permit the retention of the
status quo for these pension plans, in their current form, with respect to the
level of contribution of the departments toward the employer’s share (i.e.
based upon triennial actuarial valuations) and the timing of vesting of
benefits and locking-in the employer’s share.
[9]
This is the first decision of the Treasury Board
specifically authorizing the Department to cover the employer’s share of
contributions to the various Aboriginal pension plans.
[10]
In 2005, the Treasury Board approved the
Department’s new Band Employee Benefits Program (BEBP), which remains in effect
to this day. The Treasury Board’s authorization was valid until March 31,
2008, but it has been renewed on an annual basis in the meantime, in the
absence of any major changes made to the BEBP by the Department.
[11]
The BEBP Policy also states that the Department
may contribute to the pension plans of Aboriginal employers and fund their
share of the costs of these plans up to 5.5% of the employee’s salary, subject
in particular to the condition that the employee’s share be at least equal to
the employer’s share.
[12]
Again, the Treasury Board authorized the Department
to exempt the three defined benefit pension plans from some of the conditions
of the BEBP, including the cap of 5.5% of the employee’s salary and the
obligation that the employee’s share of the cost be at least equal to the
employer’s share.
[13]
At the time, the Department was still funding
the actual cost of the employer’s contribution to the NBP, which included four
categories of employee. For example, for Category 2-Aboriginal Employees,
the employee’s share of contributions was 7.5% of his or her salary, while the
employer’s share of contributions was 13.65% of the employee’s salary (1.82
times the employee’s contribution).
[14]
In 2007, the employees of the Department’s
regional office were informed by the central office that no further funds would
be transferred to the regional office to fund the increase in the employers’
contribution to the NBP and that if the regional office opted to continue
funding the actual cost of the employer’s share of the two defined benefit
plans in effect in Quebec (the third being in Manitoba), the money would have
to be taken from its existing budget, as indexed.
[15]
Marie-Claude Leclerc, Capacity Development and
Governance Manager in the Department, explained that during an audit of NBP
management carried out in 2006-07, some anomalies were identified and
corrected, resulting in a certain amount of savings. She also explained that it
was the end of a period of heavy growth in the number of employees eligible for
the NBP, which had obviously had the effect of increasing the employers’ share
of the costs.
[16]
The regional office was faced with two choices:
either finding the money elsewhere or capping the employer’s contribution to
the two defined benefit pension plans in effect in its territory. The latter
option was selected, and funding was capped in accordance with the payroll of
December 31, 2007, subject to the indexing factor in the regional budget
and to variations recommended by the actuary to the employer’s contribution
rate (see the letter dated May 31, 2007, from the Regional Director of the
Department to the Council, Exhibit D‑12).
[17]
That reservation is somewhat ambiguous. Although
letter D‑12 clearly deals with the actuary’s recommendation regarding the
employer’s contribution rate (for example, 13.65% of the salary for
Category 2-Aboriginal Employees), the Department claims that it dealt instead
with the mark-up rate recommended by the actuary (e.g. the factor of
1.82 in the example above).
[18]
Regardless, because the growth in payroll had
plateaued to some extent, Ms. Leclerc believed that the impact of the cap
on the employers would be limited overall.
[19]
Ultimately, the shortfalls in 2008 and 2009 were
relatively small: $6,576.97 and $2,337.00 respectively (see Exhibit R‑28).
[20]
However, Sylvain Picard, General Manager of the
NBP since 1995, explained that no change to the contributions had been required
until an increase was recommended by an actuary in 2010 in order to cover a
solvency deficiency in the NBP. Rather than increasing the mark-up rate applied
to the employee’s contribution to calculate the employer’s contribution, the
directors of the NBP, as of April 1, 2012, increased the employee’s
contribution rate. Still using the example of Category 2-Aboriginal
Employees, the employee’s contribution rate increased from 7.5% to 8.5% of his
or her salary, while the employer’s contribution increased from 13.65% to
15.47% (8.5% X 1.82).
[21]
Obviously, the increase in the employer’s
contribution rate in 2010 had a direct impact on the shortfall for employers
contributing to the NBP for the years 2010 to 2013, including that of the
Council. The shortfall was in the amount of $42,932.77 in 2010, $26,992.89 in
2011, $27,659.80 in 2012 and $27,629.47 in 2013 (see Exhibit R-28).
[22]
Currently, taking into account the 2008 cap,
interpreted as suggested by the Department (namely, that it would cover any
variation recommended by the actuary to the mark-up rate applicable to
the employer and not to its contribution rate), the Department is
funding 90% of the contribution of the 85 employers participating in the NBP,
including the Council.
Issues
[23]
In light of an order issued following the
pre-hearing conference chaired by Richard Morneau, Prothonotary, and the
submissions made before this Court by counsel for the parties, the issues in
this dispute can be summarized as follows:
1.
Was an application for judicial review the
appropriate procedural vehicle for invalidating the administrative measure
taken by the respondent, namely, the cap implemented in 2008? If so, is this remedy
time-barred?
2.
Did the respondent undertake a formal
contractual obligation toward the Council to fund in full its contribution to
the defined benefit pension plan of its employees? If so, has there been a
breach of contract?
3.
In the alternative, is the respondent
extracontractually liable to the Council?
Analysis
Was an
application for judicial review the appropriate procedural vehicle for
invalidating the administrative measure taken by the respondent, namely, the
cap implemented in 2008? If so, is this remedy time-barred?
[24]
In abandoning the mandatory order that it had
originally sought, which was meant to deprive the 2008 decision, establishing a
cap, of its effects for the future, counsel for the Council believed he was
rendering moot the Department’s preliminary argument. Beyond its strategic
aspect, the Council’s decision to abandon such an order follows logically from
a realistic and pragmatic analysis of its theory of the case. According to the
Council, because the respondent’s contractual undertaking arises from the 2005
decision of the Treasury Board, the latter may render a different decision for
the future at any time. A mandatory order would therefore be risky.
[25]
However, the Council recognizes that in order to
respond to the third issue raised in this case, namely, whether the respondent
has committed an act or omission engaging its extracontractual liability, the
Court must analyze the lawfulness of the decision to set a cap.
[26]
The Department is not abandoning its preliminary
argument, submitting that because the practical purpose of this dispute is to
have the cap eliminated, even for a limited time, the applicant was required to
bring an application for judicial review under section 18 of the Federal
Courts Act, RSC 1985, c F-7, which it failed to do within the time limits
set out in that statute.
[27]
The Department is inviting this Court to
distinguish this case from the decisions of the Supreme Court of Canada in Canada
(Attorney General v Telezone Inc., [2010] 3 S.C.R. 585 [Telezone], and Manuge
v R, [2010] 3 S.C.R. 672 [Manuge], in which, it argues, the link
between the validity of the administrative decision and the damages claimed by
the applicants was less direct than in this case. In Telezone, it was
not a case of depriving the administrative decision of its effects, given that
the decision in question to grant four telecommunications licences instead of
six remained in effect. The appellant in Manuge, through an application
for leave to bring a class action, was claiming damages on the basis of an
alleged violation of subsection 15(1) of the Canadian Charter of Rights
and Freedoms.
[28]
With respect, I do not share the Department’s
view. The primary distinction between an application for judicial review and a
claim for damages (apart from the procedural vehicle) is the nature of the
remedy or remedies sought. It is always open to the applicant to seek the
performance of an obligation by equivalence rather than specific performance.
In many cases, specific performance is impossible given, for example, the
resulting impact on the rights of third parties. In Telezone, an order
whose purpose was to invalidate a decision by Industry Canada would have
affected, to some extent, the rights of third parties, the four licence
holders, who had contracted with the Government in good faith. In this case,
the Council is not asking that the decision be deprived of its effects for the
84 other employers participating in the NBP or for the employers participating
in the other two defined benefit pension plans.
[29]
It is possible to invoke the unlawfulness of an
administrative decision as a source of the State’s contractual or
extracontractual liability. “If the plaintiff has a valid cause of action for
damages, he or she is normally entitled to pursue it” (Telezone, above,
at para 76). In Quebec civil law, the plaintiff who invokes a fault
(contractual or extracontractual), damage and a causal link between the two
should also be entitled to bring an action in damages against the State. The
Council’s action in damages, the ultimate private remedy, in based primarily on
a breach of contract. It therefore appears to me that the Department is
proposing a rather artificial distinction.
[30]
The Department also submits that the validity of
an administrative decision should not be analyzed outside the context of an
application for judicial review, as the Court would not have the benefit of the
certified record of the administrative tribunal or decision maker.
[31]
In the context of a claim for damages, the
parties are masters of their own evidence, subject to its lawfulness and
relevance, and they may file any exhibits on which they wish to base their
arguments and call the necessary witnesses to enlighten the Court. This
procedural argument by the Department should therefore not prevail over the
merits of the Council’s claim.
[32]
In any case, as indicated by Justice Binnie
in Telezone at paragraph 18, “[t]his appeal is fundamentally about
access to justice.” This is especially true when, as in this case, there is no
need to distinguish the Court’s exclusive jurisdiction from its concurrent
jurisdiction.
Did the respondent undertake a formal
contractual obligation toward the Council to fund in full its contribution to
the defined benefit pension plan of its employees? If so, has there been a
breach of contract?
[33]
According to the Council, the respondent’s
contractual undertaking is rooted in the 2005 decision of the Treasury Board,
and the terms and conditions of that undertaking can be found in the BEBP Policy
(Exhibit R‑4). It adds that in the body of documents produced by
Department officials, both before and after 2005, the officials confirmed the
binding nature of the undertaking, or at least their understanding of it.
Essentially, the Council is arguing that the Department formally undertook a
contractual obligation to fund its contribution to the NBP in full, including
any variation of that contribution based on increases to its payroll or on the
actuarial valuation of the plan. The survival and integrity of the NBP depended
on this undertaking.
[34]
In addition to the wording of the BEBP Policy
itself (the Treasury Board’s decision being too recent and therefore
unavailable), the Council is basing its position on several documents issued by
the Department. Examples include the fact that the two defined benefit pension
plans in effect in the province of Quebec were exempted from a freeze on the
funding of the BEBP imposed by the Department for the 1996-1997 fiscal year
(Exhibit D‑7), the reasons provided in support of this exemption
(Exhibit R‑25), and the clarifications provided in March 1998 to the
regional offices of Quebec and Manitoba (Exhibit R-19). In all of these
documents, the Department reiterates the Crown’s commitment to continuing to [translation] “provide the funds to cover
the employer’s share of registered ‘defined benefit’ pension plans in
accordance with actuarial valuations and verified payroll records.”
[35]
The same argument was used by the Department’s
regional office in Quebec when, in March 2007, it tried to persuade the central
office not to apply the proposed cap to the two defined benefit pension plans
in effect in Quebec (Exhibit R‑26).
[36]
According to the Council, as soon as the
Treasury Board approved the BEBP on behalf of the Queen’s Privy Council for
Canada, in accordance with the authority contained in paragraph 7(1)(c)
of the Financial Administration Act, RSC (1985), c F-11 (FAA), the
Department became contractually bound by its contents. The Council therefore
submits that the Treasury Board’s authorization constitutes a unilateral
contract, as per article 1380 of the Civil Code of Québec (CCQ), and
that its terms and conditions are set out in the BEBP Policy.
[37]
While it is true that the State’s contracting
powers and public spending powers are subject to authorization by legislation (Larocque
v Canada (Minister of Fisheries and Oceans), 2006 FCA 237 at paras
15 and 17), in this case authorization from the Treasury Board, it does not
follow that such authorization is sufficient to constitute a source of
contractual obligations. There must also be a meeting of the minds with respect
to the essential elements of the contract.
[38]
In the section entitled “Program Overview”, the
BEBP Policy sets out the following:
[The department] may
contribute toward the cost of the eligible employer’s share of pension and benefits
plans for eligible employees delivering services pursuant to an eligible
program.
The department may
contribute toward private pension plans, Canada/Quebec Pension Plan . . . .
Funding levels are based on the following rates:
(a)
The department may contribute to an
eligible employer an amount up to a total of the sum of 5.5% . . . of
eligible employee payroll toward the employer’s share of contributions to an
employer-sponsored pension plan . . . .
. . .
The employee’s share
of the cost of employer-sponsored pension plans will be at least equal
to the employer’s share contributed by [the department].
Only the three
existing defined benefit pension plans may vary from the levels specified above
(see Annex-3: Terms and Conditions for Existing Defined Benefit Pension Plans).
. . .
The [BEBP] program can
be funded through a Contribution, a Flexible Transfer Payments and an
Alternative Funding Arrangement authority. [Emphasis added.]
[39]
In the section entitled, “Eligible Recipients”,
the following passage appears:
In the following
specific instances only, certain of the [BEBP] program criteria do not apply:
. . .
(b) Notwithstanding the terms and conditions described here which apply
to the [BEBP], there are three defined benefit pension plans which pre-existed
the current [BEBP]. In order to enable their continuance, they have been
allowed limited exemption from four specific areas. Variations from certain
terms and conditions, as described in Annex-3: Terms and Conditions for
Existing Defined Benefit Pension Plans, applies to these plans. [Emphasis
added.]
[40]
Finally, Annex-3 provides the following:
. . . In
this context, [the department] exempted the three defined benefit pension plans
from only those specific requirements of the program terms and conditions which
impact directly on these plans. The exemption permits the retention of
the status quo for these pension plans, in their current form, with
respect to the level of contribution of the department toward the employer’s
share (i.e. based upon triennial actuarial valuations) and the timing of
vesting of benefits and locking-in the employer’s share. [Emphasis added.]
[41]
In the Council’s case, this policy was
implemented, for all of the relevant period, through limited-term Comprehensive
Funding Arrangements (CFAs) [Exhibits D-5 and D-6], which covered funding
for various programs, including the BEBP. Each of these arrangements, duly
signed by the Council, contains a clause incorporating the reservation
contained at section 40 of the FAA to the effect that any payments under
the contract are subject to the availability of funds for the fiscal year in
which the commitments would come in course of payment. In the CFAs signed after
April 1, 2008, the funding amounts for the BEBP reflect the cap, as interpreted
by the Department, and are therefore set at about 90% of eligible employee
payroll.
[42]
Neither the text of the BEBP Policy nor the
contents of the CFAs reflect a unilateral contractual undertaking by the
Department to cover the actual cost of the Council’s share of its employees’
pension plan. The Council submits that the CFA, as a vehicle of undertaking, is
inconsistent with the source of the undertaking, which is the BEBP Policy. I,
however, am of the view that the vehicle is consistent with the policy, since
without the exemption authorized in 2005, the Department would have exceeded
the Treasury Board’s authorization to fund the employer’s contribution up to
5.5% of the employee’s salary, as long as the employee’s share of the cost is at
least equal to the employer’s. This interpretation of the exemption is
confirmed by the analysis of the policy applicable to defined contributions
plans. The text is clear: “The department may contribute to an eligible
employer an amount up to a total of the sum of 5.5% . . . of
eligible employee payroll . . .”. It seems obvious that there is nothing to prevent it from paying
a lower amount. Appendix I contains an exemption relating to this maximum
rather than a formal undertaking to take responsibility for the employer’s full
share of the cost of the defined benefit pension plans.
[43]
Indeed, it would have been surprising for the
Department to make such a contractual commitment without a defined term in a
context in which it was not the employer. As admitted by Sylvain Picard, General
Manager of the NBP, when the decision was made in 2010 to raise the
contribution rate of Category 2-Aboriginal Employees to 8.5% and that of the
employers to 15.47%, other reductive measures could have been applied, such as
changing the age of retirement or the indexation rate for benefits (50% rather
than 100%). The Department has no control over the choice of reductive measures
available to cover a shortfall, nor does it have any control over the total
payroll, the second variable in the equation. If the Court were to accept the
Council’s position, these elements would have a significant impact on the
Department’s financial commitments, without any intervention possible by the
latter.
[44]
The Council submits that the CFAs duly signed by
a Council representative are contracts of adhesion. However, it has not
specified what the consequences would be of such a characterization in the
circumstances of this case. It has not identified any external clauses (art
1435 CCQ) or any illegible, incomprehensible (art 1436 CCQ) or abusive
clauses (art 1437 CCQ). The mere fact that a contract is a contract of adhesion
does not suffice to allow the adherent to repudiate its validly given consent.
[45]
The decisions of the Federal Court of Appeal
(FCA) and this Court in Canada (Attorney General) v Simon, 2012 FCA 312
[Simon] and Attawapiskat First Nation v R, 2012 FC 948 [Attawapiskat],
are of no assistance to the Council. In those two cases, the FCA and this Court
essentially confirmed that the application or interpretation of a CFA between
an Indian band and the Government could give rise to a public law remedy such
as an application for judicial review, given the sui generis nature of
the relationship between the Government and the Aboriginal bands. In this case,
the Council opted for the private law remedy of a claim for damages, a remedy
whose availability in the circumstances is recognized by the FCA in Simon,
above, at paragraph 30.
[46]
In that case, the council was criticizing the
Department for unilaterally modifying, without prior consultation, the guidelines to which the duly signed funding
agreement referred. The FCA, which
was hearing an appeal against an interlocutory injunction order, carefully
noted at paragraph 34 of its reasons that “neither these reasons nor the
reasons of the judge should be seen as expressing a favourable or unfavourable
opinion on any of the issues raised by the parties in the underlying judicial
review application” (note that this application for judicial review was allowed
by the Court of November 4, 2013—2013 FC 1117—and that an appeal was filed
on December 13, 2013).
[47]
In Attawapiskat, the situation was very
different from the case at hand, in that the Department was relying on a
default clause contained in a comprehensive funding agreement to appoint a
third-party manager to the band council. In the context of an application for
judicial review, the Court had to interpret the agreement to determine whether,
given the relationship between the Government and the Aboriginal bands, the decision
was excessive. In that case, members of the community were facing a severe
housing crisis, a fact that raised several issues of public interest.
[48]
In this case, the Council is claiming neither a
unilateral change to the content of the CFAs nor an abuse of right by the
Department, and it is not even claiming that the case has a significant public
dimension with a very serious, exceptional effect on the rights or interests of
a broad sector of the population.
[49]
I therefore conclude that, during the relevant
period, the parties were bound by their various CFAs and that these were
consistent with the spirit and letter of the BEBP Policy, as approved by the
Treasury Board.
In the alternative, is the respondent
extracontractually liable to the Council?
[50]
The Council submits that if the BEBP Policy does
not represent the terms and conditions of a contractual undertaking on the part
of the Department to continue covering the actual cost of its contribution to
the NBP, until the Treasury Board decides otherwise, the undertaking expressed
in the Policy still represents a source of extracontractual liability, and its
breach by the Department has engaged the Department’s liability to the Council.
It adds that, having chosen to transfer the responsibility for managing the
various governmental programs to the Indian band councils, the Department must
apply that decision diligently (Patrice Garant, Philippe Garant and Jérôme
Garant, Précis de droit des administrations
publiques, 5th ed, Éditions
Yvon Blais 2011, page 350). The Council characterizes
the 2008 decision to cap funding for the employer’s contribution to the NBP as
an unreasonable exercise by the Department of its executive power. In its view,
this represents a breach rendering the Department extracontractually liable.
[51]
The Department’s response is that the impugned
decision is purely political in nature and therefore not subject to
interference from the courts. It adds that if the Court decides that this was
an operational decision or the implementation of a policy, the Department has
committed no breach, given that the BEBP Policy does not contain an obligation
to cover the actual cost of the employer’s contribution to the BEBP.
[52]
Because the alleged actions occurred in Quebec,
the Crown Liability and Proceedings Act, RSC 1985, c C-50, and articles
1376 and 1457 of the CCQ are applicable (Canadian Food Inspection Agency v
Professional Institute of the Public Service of Canada et al, [2010] SCR
657 at paras 25 and 26).
[53]
The Court’s interpretation of the contents of
the BEBP Policy (paragraphs 42 and 43 of these Reasons) is sufficient to
dispose of the Council’s argument that the failure to respect the undertaking
contained in the Policy engages the Department’s extracontractual liability.
[54]
When analyzed in its historical context, the
Council’s position engenders a certain amount of sympathy. Today it must face
the financial consequences of a choice of pension plan made at a time when the
available funds enabled the Department to fund its contribution in full. This
is probably what caused the employees of the Department’s regional office to
spend so much energy attempting to maintain the status quo. However, as
mentioned above, because the Department is not the employer and because it has
no control over the total payroll or any reductive measures that could be taken
to cover an operational or solvency deficit with respect to the pension regime,
deciding to cap its funding, as it did in 2008, particularly given that it is
covering any variation in the employer’s contribution rate recommended by the
actuary, is a reasonable decision that constitutes sound stewardship of public
funds.
[55]
In any case, this decision is a purely political
one that cannot give rise to the intervention of this Court outside the context
of contractual obligations (Montambault c Hôpital
Maisonneuve-Rosemont, 2001 CanLII 11069 (QC CA) at
para 77).
Conclusion
[56]
For the reasons given, I am of the view that the
Council’s action in damages should be dismissed with costs.
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