ST. Marys Paper Inc. (Re), [1996] 1 SCR 3

St. Marys Paper Inc. (Re), [1996] 1 S.C.R. 3

Ernst & Young Inc., Trustee in Bankruptcy                                     Appellant

v.

Price Waterhouse Ltd., in its capacity as

Administrator of the Pension Plan for

Participating Unions of St. Marys Paper Inc.

and the Pension Plan of Non-Union Employees

of St. Marys Paper Inc., Former Employees of

St. Marys Paper Inc. and

the Communications, Energy and Paperworkers

Union of Canada and Locals 47-0, 67, 69

and 133 thereof                                                                                              Respondents

and

Pension Commission of Ontario                                                        Intervener

Indexed as:  St. Marys Paper Inc. (Re)

File No.:  24259.

1996:  January 22.

Present:  La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Major* JJ.

on appeal from the court of appeal for ontario

                   Bankruptcy ‑‑ Trustee in bankruptcy ‑‑ Definition of employer ‑‑ Trustee rehiring employees ‑‑ Trustee's liability to employee pension plan ‑‑ Trustee making contributions to pension plans as goodwill gesture ‑‑ Trustee falling within definition of employer ‑‑ Appeal conceded to be moot ‑‑ Appeal not warranting favourable exercise of Court's discretion to hear appeal.

Cases Cited

                   Referred to:  Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

                   APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 163, 73 O.A.C. 1, 116 D.L.R. (4th) 448, 26 C.B.R. (3d) 273, 4 C.C.P.B. 233, dismissing an appeal from a judgment of Farley J. (1993), 15 O.R. (3d) 359, 107 D.L.R. (4th) 715, 1 C.C.P.B. 27.  Appeal dismissed.

                   Lyndon A. J. Barnes and R. Gordon Marantz, Q.C., for the appellant.

                   No one appeared for the respondent Price Waterhouse Ltd. in its capacity as Administrator of the Pension Plan for Participating Unions of St. Marys Paper Inc. and the Pension Plan of Non-Union Employees of St. Marys Paper Inc.

                   Chris G. Paliare and Clifton P. Prophet, for the respondents the Former Employees of St. Marys Paper Inc. and the Communications, Energy and Paperworkers Union of Canada and Locals 47-0, 67, 69 and 133 thereof.

                   Robert W. Staley, Paul Dempsey and Jacqueline Hatherly, for the intervener.

                   The judgment of the Court was delivered orally by

1                 La Forest J. ‑‑ We are all of the view that this appeal is moot, as conceded by the appellant, and that the appeal does not warrant the favourable exercise of our discretion to hear it pursuant to the criteria set forth in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

2                 Accordingly the appeal is dismissed with costs.  Justice Major takes no part in this decision.

                   Judgment accordingly.

                   Solicitors for the appellant:  Osler, Hoskin & Harcourt, Toronto.

                   Solicitors for the respondent Price Waterhouse Ltd., in its capacity as

Administrator of the Pension Plan for Participating Unions of St. Marys Paper Inc. and the Pension Plan of Non-Union Employees of St. Marys Paper Inc.:  Fasken, Campbell, Godfrey, Toronto.

                   Solicitors for the respondents the Former Employees of St. Marys Paper Inc. and the Communications, Energy and Paperworkers Union of Canada and Locals 47-0, 67, 69 and 133 thereof:  Gowling, Strathy & Henderson, Toronto.

                   Solicitors for the intervener:  Bennett, Jones, Verchere, Toronto.