SUPREME
COURT OF CANADA
Citation: Professional Institute of the Public Service of Canada v.
Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660
|
Date: 20121219
Docket: 33968
|
Between:
Professional
Institute of the Public Service of Canada, Canadian Merchant Service Guild,
Federal Government Dockyard Trades and Labour Council (East), International
Brotherhood of Electrical Workers, Federal Government Dockyard Chargehands
Association, Research Council Employees’ Association, Association of Public
Service Financial Administrators, Professional Association of Foreign Service
Officers, Federal Government Dockyard Trades and Labour Council (West),
Canadian Association of Professional Radio Operators, Canadian Air Traffic
Control Association, Canadian Military Colleges Faculty Association and Federal
Superannuates National Association
Appellants
and
Attorney
General of Canada
Respondent
AND
BETWEEN:
Public
Service Alliance of Canada
Appellant
and
Attorney
General of Canada
Respondent
AND
BETWEEN:
Armed
Forces Pensioners’/Annuitants’ Association of Canada, Association des Membres
de la Police Montée du Québec, British Columbia Mounted Police Professional
Association, Mounted Police Association of Ontario and Canadian Association of
Professional Employees
Appellants
and
Attorney
General of Canada
Respondent
-
and -
Attorney
General of British Columbia
Intervener
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 165)
|
Rothstein J. (McLachlin C.J. and LeBel,
Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ. concurring)
|
Professional Institute of the Public Service of Canada v.
Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660
Professional Institute of the Public
Service of Canada,
Canadian Merchant Service Guild,
Federal
Government Dockyard Trades and Labour Council (East), International Brotherhood
of Electrical Workers,
Federal Government Dockyard Chargehands
Association,
Research Council Employees’ Association,
Association of Public Service Financial
Administrators,
Professional Association of Foreign
Service Officers,
Federal Government Dockyard Trades and
Labour Council (West),
Canadian Association of Professional
Radio Operators,
Canadian Air Traffic Control Association,
Canadian Military Colleges Faculty Association and
Federal Superannuates National
Association Appellants
v.
Attorney General of Canada Respondent
‑ and ‑
Public Service Alliance of
Canada Appellant
v.
Attorney General of Canada Respondent
‑ and ‑
Armed Forces Pensioners’/Annuitants’
Association of Canada,
Association des Membres de la Police Montée du Québec,
British Columbia Mounted Police Professional Association,
Mounted Police Association of Ontario and
Canadian Association of
Professional Employees Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of British
Columbia Intervener
Indexed as: Professional Institute of the Public Service of Canada v.
Canada (Attorney General)
2012 SCC 71
File No.: 33968.
2012: February 9; 2012: December 19.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for ontario
Pensions
― Pension plans ― Surplus ― Public sector pension plans
administered by government ― Government amortizing actuarial surpluses in
Superannuation Accounts ― New legislation coming into force on
April 1, 2000 amending Superannuation Acts ― Government debiting over
$28 billion directly from Superannuation Accounts on basis of new
legislation ― Whether Superannuation Accounts contain assets ―
Whether government owes fiduciary duty to Plan members ― Whether
constructive trust should be imposed over balances in Superannuation Accounts
as of March 31, 2000 ― Whether new legislation authorizing government to
debit actuarial surpluses in Superannuation Accounts ― Public Service Superannuation Act, R.S.C.
1985, c. P‑36 ― Canadian Forces Superannuation Act, R.S.C.
1985, c. C‑17 ― Royal Canadian Mounted Police Superannuation
Act, R.S.C. 1985, c. R‑11 ― Public
Sector Pension Investment Board Act, S.C. 1999, c. 34 .
There are three pension plans
involved in this appeal (the “Plans”). They were established by statute for
each of the three groups: substantially all those who are employed in the
federal public service; the members of the RCMP; and the regular force of the
Canadian Forces (the “Plan members”). Each Plan is
administered by the Government of Canada, and each is a contributory, defined
benefit plan. The statutes governing the Plans establish for each one a
“Superannuation Account”, which records payments into and out of the Plan. In
the 1990s, the credits to the Superannuation Accounts began to reflect
actuarial surpluses (meaning that the credits exceeded the estimated cost of
providing pension benefits). By March 1999, the total surpluses of the three Plans
had reached approximately $30.9 billion. There are two relevant time periods in this appeal. The
first period is up to and including March 31, 2000. It precedes the coming
into force of the Public Sector Pension Investment
Board Act, S.C. 1999, c. 34 (“Bill C‑78”), legislation that amended the Superannuation
Acts (PSSA; CFSA
and RCMPSA) and, thus, the Plans. The second period begins on
April 1, 2000, when Bill C‑78 came into effect.
Beginning
with the 1990‑91 Public Accounts (Canada’s annual financial reports), the
government began to “amortize” the actuarial surpluses in the Superannuation
Accounts. The effect of this
“amortization” was twofold: it reduced the government’s annual budget deficit
(or increased the annual budget surplus) by reducing annual pension
expenditures, and it brought the government’s net debt down by reducing the net
pension liabilities to an amount closer to the actuarial estimates of the
government’s future pension obligations.
In 1999, the government introduced
Bill C‑78, which came into force on April 1, 2000. It made
significant changes to the Superannuation Acts and changed the way in which contributions to the Plans were collected,
managed and distributed. It
established a Pension Fund in each of the Superannuation Acts that
replaced the Superannuation Accounts for post‑March 31, 2000
service. Since April 1, 2000, employee and government contributions in
respect of current service have been made to the Pension Funds. All benefits
for pensionable service prior to April 1, 2000, when paid, are charged to
the appropriate Superannuation Account. However, benefits paid for service
thereafter are paid from the appropriate Pension Fund. Bill C‑78 also required the Minister to debit from the
Superannuation Account certain amounts in excess of specified actuarial surplus
ceilings. Unlike the effect of the prior amortization practice, on the basis
of Bill C‑78, the government debited over $28 billion directly
from the Superannuation Accounts, thereby reducing the actuarial surplus in
those accounts.
Various
unions and associations filed suit, seeking relief that would require the
government to return $28 billion to the Plans. The trial judge dismissed
the claims and the Ontario Court of Appeal upheld the decision. In their appeal in this Court, they seek a
declaration that the Plan members have an equitable interest in the outstanding
balance in the Superannuation Accounts as of March 31, 2000. They also
seek a declaration that Bill C‑78 does not authorize the reduction
from the Superannuation Accounts of any amount in which Plan members have an
equitable interest without compensation. They seek an order that the
Superannuation Accounts be credited with all amounts that were removed
following Bill C‑78 in which the Plan members have an equitable
interest, together with interest.
Held: The appeal
should be dismissed.
The Superannuation Accounts are legislated
records and do not contain assets in which the Plan members have a legal or
equitable interest. The Plan members’ interests are limited to their interest
in the defined benefits to which they are entitled under the Plans. The Superannuation Acts created the Accounts to track Plan‑related
Consolidated Revenue Fund (“CRF”) transactions and to estimate the government’s
pension liabilities to Plan members. In this way, they are accounting records,
not funded and segregated pools of assets. When the word “assets” is used in
the legislation in reference to the Superannuation Accounts, it merely
signifies their credit balances, not anything of value to which the Plan
members could have an interest. Even if reference to extrinsic aids was
appropriate, the extrinsic evidence available is inconclusive. Nor does it
afford insight into the intention of Parliament when creating the
Superannuation Accounts.
The
courts below were correct to reject the theory that the government borrowed
from the Accounts, placing in them promises to pay by the government (the
purported assets in the Accounts). This theory is inconsistent with the
legislation in that it assumes that the government was required to contribute
property into the Accounts in the first place. As the Accounts are no more
than accounting records, this would have been impossible. Prior to April 1,
2000, all of the real money associated with Canada’s pension scheme remained
unsegregated in the CRF, until benefits were actually paid — out of the CRF —
to Plan members. The superannuation scheme reflects “internal borrowing” only
in the sense that it avoids, by design, the need for the external borrowing
that would otherwise be required to finance the government’s pension
obligations. The Superannuation Accounts are just accounting records and they
are not funds, nor are they “trust‑like”, such that it is possible to
borrow from them.
As the Superannuation Accounts do
not contain assets, there was no property in respect of which Plan members can
have a legal or equitable interest. However, even if the Accounts did contain
assets, it has not been established that the Plan members have a proprietary
interest in either their contributions made or in the government credits under
the Superannuation Acts. On a plain reading of the Superannuation
Acts, there is no suggestion that the Plan members have a proprietary interest
in their contributions. Contributing employees can claim no continuing
property interest in these amounts. In exchange for their contributions, and
with each year of pensionable service, employees gain a legal entitlement to a
future benefit. It has been asserted that employees have an interest in both the
employee and employer contributions, plus interest, on the basis that they form
part of employees’ total compensation. Even if it were to be assumed that
employees have an interest in the contributions at the point in time at which
their salaries are to be paid to them, no interest in these amounts could
survive the requirement in the Superannuation Acts that they be paid
into the CRF and credited to the Accounts. Rather, this is the “cost” paid by
employees for the future legal entitlement to their statutorily defined
benefits. The Superannuation Acts also do not establish that employees
have an equitable interest in the amounts credited to the Accounts. They
provide only a legal entitlement to statutorily defined pension benefits.
Nor
was the government subject to a fiduciary obligation in favour of the Plan
members with respect to the actuarial surplus. In
this case, the government does not fall into any of the per se fiduciary
relationships. It is contended that the government is in a recognized
fiduciary role in its capacity as a pension plan administrator; however, it is not necessary to decide the precise
ambit of any potential fiduciary duty that might arise between the government,
as pension plan administrator, and the beneficiaries of the plan, or whether
the relationship inherently carries with it some set of fiduciary obligations.
It is clear that the government had no fiduciary duty to the Plan members with
respect to the actuarial surplus. There was no ad
hoc fiduciary relationship between the government and the Plan members with
respect to the actuarial surplus reflected in the Superannuation Accounts.
Most importantly, the government did not undertake, either expressly or impliedly,
to act in the best interests of the Plan members with
respect to the actuarial surplus. Without such an undertaking of loyalty in
favour of these particular stakeholders, the government’s duty was to act in
the best interests of society as a whole. This is inconsistent with the
existence of a fiduciary duty. Moreover, while the government exercised
discretion in its accounting treatment of the surpluses in the Superannuation
Accounts, the Plan members were not vulnerable to that discretion, nor did they
have any legal or practical interest at stake. The effect of the amortization
was to disclose more accurately Canada’s actual pension obligations, not to
affect Plan members’ statutory entitlements under the Plans.
Further, a constructive trust should
not be imposed over the balances in the Superannuation Accounts as of
March 31, 2000. There was no enrichment and corresponding deprivation,
and a prima facie case of unjust enrichment has not been established. As
the Superannuation Accounts are mere accounting records, and do not contain
assets in which the Plan members have an interest, no enrichment and
corresponding deprivation can be found in either (1) the government’s
decision prior to April 1, 2000, to amortize the surpluses for accounting
purposes, or (2) Parliament’s decision to enact Bill C‑78 to
require the debiting of a portion of the surplus directly from the Accounts.
Bill C‑78 authorized
the government to debit the actuarial surpluses in the Superannuation Accounts.
The courts below did not err in determining that the
Plan members have no equitable interest in the surpluses in the Superannuation
Accounts. Bill C‑78 thus could not have expropriated the Plan
members’ property. Further, the
Superannuation Acts are
unambiguous in establishing that the Minister may debit any actuarial
surplus and must debit all amounts exceeding 110 percent of the
estimated liability under the Plans. Moreover, it is “extremely clear” that Parliament did not intend any
compensation to be given to the Plan members for these debits, whether or not
this constituted expropriation. It would be absurd to read Bill C‑78
as requiring the government to debit excess amounts and then compensate the
Plan members for the amounts debited. Such an interpretation would be to
convert the relevant provisions of Bill C‑78 into a distribution
mechanism — where the surpluses would be reduced and the Plan members would
receive some form of compensation in lieu of having surpluses in the Accounts —
which was quite clearly not Parliament’s intent.
Cases Cited
Applied:
Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2
S.C.R. 261; distinguished: Burke v. Hudson’s Bay Co.,
2010 SCC 34, [2010] 2 S.C.R. 273; Ermineskin Indian Band and Nation v. Canada,
2009 SCC 9, [2009] 1 S.C.R. 222; referred to: Schmidt v.
Air Products Canada Ltd., [1994] 2 S.C.R. 611; Nolan v. Kerry (Canada)
Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Monsanto Canada Inc. v. Ontario
(Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Bell
ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy
Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; United
States of America v. Dynar, [1997] 2 S.C.R. 462; Galambos v. Perez,
2009 SCC 48, [2009] 3 S.C.R. 247; Guerin v. The Queen, [1984] 2 S.C.R.
335; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Frame
v. Smith, [1987] 2 S.C.R. 99; Hodgkinson v. Simms, [1994] 3 S.C.R.
377; Gladstone v. Canada (Attorney General), 2005 SCC 21, [2005] 1
S.C.R. 325; Soulos v. Korkontzilas, [1997] 2 S.C.R. 217; Pacific
National Investments Ltd. v. Victoria (City), 2004 SCC 75, [2004] 3 S.C.R.
575; Peter v. Beblow, [1993] 1 S.C.R. 980; Sorochan v. Sorochan,
[1986] 2 S.C.R. 38; Pacific National Investments Ltd. v. Victoria (City),
2000 SCC 64, [2000] 2 S.C.R. 919.
Statutes and Regulations Cited
Act to amend the Civil Service Superannuation Act, S.C. 1944‑45, c. 34, s. 6.
Act to amend the Militia Pension Act,
S.C. 1946, c. 59, s. 6.
Act to amend the Royal Canadian Mounted Police Act, S.C. 1947‑48, c. 28, s. 10.
Canadian Forces Superannuation Act,
R.S.C. 1985, c. C‑17, s. 55(9) to (13) .
Canadian Forces Superannuation Act, S.C.
1959, c. 21.
Civil Service Superannuation Act, R.S.C.
1952, c. 50, s. 21.
Defence Services Pension Act, R.S.C.
1952, c. 63.
Financial Administration Act, R.S.C.
1985, c. F‑11, ss. 2 “Consolidated Revenue Fund”, “money”,
“negotiable instrument”, “public money”, 17, 63, 64.
Financial Administration Act, S.C. 1951,
c. 12, s. 2(e) “Consolidated Revenue Fund”.
Fisheries Act, R.S.C. 1985, c. F‑14 .
Pension Benefits Standards Act, 1985,
R.S.C. 1985, c. 32 (2nd Supp .), s. 4 .
Public Pensions Reporting Act, R.S.C.
1985, c. 13 (2nd Supp .), ss. 5 , 7 , 8 , 9(1) .
Public Sector Pension Investment Board Act, S.C. 1999, c. 34, s. 4 .
Public Service Labour Relations Act, S.C.
2003, c. 22 [as en. by Public Service
Modernization Act , S.C. 2003, c. 22, s. 2 ], ss. 2(1) “employee”, “public service”, 113.
Public Service Modernization Act , S.C.
2003, c. 22, s. 2 .
Public Service Staff Relations Act,
R.S.C. 1985, c. P‑35 [rep. 2003, c. 22, s. 285], ss. 2
“employee”, 57.
Public Service Superannuation Act,
R.S.C. 1985, c. P‑36, ss. 3(1) “Superannuation Act”, 4,
43, 44, 45.
Public Service Superannuation Act, S.C.
1952‑53, c. 47, s. 33.
Royal Canadian Mounted Police Act,
R.S.C. 1952, c. 241.
Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R‑11, s. 29(9) to (13) .
Royal Canadian Mounted Police Superannuation Act, S.C. 1959, c. 34.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. VI,
3rd Sess., 34th Parl., February 24, 1992, p. 7486.
Canada. Receiver General for Canada. Public Accounts of Canada
1996, vol. I, Summary Report and Financial Statements. Ottawa:
Treasury Board, 1996.
Canada. Receiver General for Canada. Public Accounts of Canada
1997, vol. I, Summary Report and Financial Statements.
Ottawa: Treasury Board, 1997.
Sullivan, Ruth. Sullivan on the Construction of Statutes,
5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL
from a judgment of the Ontario Court of Appeal (Laskin, Gillese and Juriansz
JJ.A.), 2010 ONCA 657, 102 O.R. (3d) 241, 275 O.A.C. 40, 84 C.C.P.B. 161,
[2010] O.J. No. 4248 (QL), 2010 CarswellOnt 7532, affirming a decision of
Panet J. (2007), 66 C.C.P.B. 54, 2007 CanLII 50603, [2007] O.J. No. 4577 (QL), 2007
CarswellOnt 7541. Appeal dismissed.
Paul J. J. Cavalluzzo, Hugh O’Reilly and Amanda Darrach, for the appellants
the Professional Institute of the Public Service of Canada et al.
James Cameron, Andrew
Raven and Andrew Astritis, for the appellants the Public Service
Alliance of Canada, the Armed Forces Pensioners’/Annuitants’ Association of
Canada et al.
Peter Southey, Dale
Yurka and Christine Mohr, for the respondent.
Written submissions
only by J. Gareth Morley, for the intervener.
The judgment
of the Court was delivered by
Rothstein
J. —
I.
Introduction
[1]
This appeal concerns three statutory, public
sector pension plans, the members of which are federal public service
employees, members of the Canadian Forces, and members of the RCMP. Each plan
is administered by the Government of Canada, and each is a contributory,
defined benefit plan.
[2]
The statutes governing the plans establish for
each one a “Superannuation Account”, which records payments into and out of the
plan. In the 1990s, the credits to the Superannuation Accounts began to
reflect actuarial surpluses (meaning that the credits exceeded the estimated
cost of providing pension benefits). By March 1999, the total surpluses of the
three plans had reached approximately $30.9 billion.
[3]
Beginning with the 1990-91 Public Accounts
(Canada’s annual financial reports), the government began to “amortize” the
actuarial surpluses in the Superannuation Accounts. On April 1, 2000, the Public
Sector Pension Investment Board Act, S.C. 1999, c. 34 (“Bill C-78”), came
into force. Bill C-78 changed the way in which contributions to the plans were
collected, managed and distributed. It also required the Minister to debit
from the Superannuation Account certain amounts in excess of specified
actuarial surplus ceilings. Unlike the effect of the prior amortization
practice, on the basis of Bill C-78, the government debited over $28 billion
directly from the Superannuation Accounts, thereby reducing the actuarial
surplus in those accounts.
[4]
The appellants (being various unions and
employee/pensioner associations) filed suit, seeking relief that would require
the government to return $28 billion to the plans. The trial judge
dismissed the claims, and the Ontario Court of Appeal upheld the decision
((2007), 66 C.C.P.B. 54 (Ont. S.C.J.), aff’d 2010 ONCA 657, 102 O.R. (3d) 241).
[5]
In order to succeed, the plan members must
establish that they have an equitable entitlement to the actuarial surpluses.
Otherwise, their entitlement will be limited to the defined pension benefits
set out in the governing statutes. In this connection, the nature of the
Superannuation Accounts is an issue of central importance. The appellants have
argued that the Superannuation Accounts were funds that contained assets in
which an equitable interest could be claimed. They say their equitable
interest is protected by a fiduciary duty on the part of the government, and,
in the alternative, by a constructive trust based on unjust enrichment. The
government counters that the Superannuation Accounts were merely accounting
records and contain no assets to which an equitable interest could attach. A
further issue raised on appeal is whether, if the plan members did have an
interest in the actuarial surplus, that interest was extinguished by Bill C-78.
[6]
I have determined that the courts below were
correct to conclude that the Superannuation Accounts were not separate funds
containing assets, but were rather accounting ledgers used to track
pension-related payments, and to estimate Canada’s future pension liabilities
in the Public Accounts. Therefore, the plan members’ entitlements are limited
to the statutorily defined benefits set out in the Superannuation Acts.
[7]
I have also concluded that the government was
not subject to a fiduciary obligation in favour of the plan members with
respect to the actuarial surplus. Nothing in the Superannuation Acts, or any other legislation,
supports the contention that the government has undertaken to forsake the
interests of all others (including taxpayers) in favour of the plan members
with respect to the actuarial surplus. Further, there was no unjust enrichment and therefore no basis for a constructive trust. As the Superannuation Accounts did not
contain assets in which the appellants had an interest, they did not suffer any
detriment as a result of the government’s accounting treatment of the
Superannuation Accounts. For the same reason, Bill C-78 did not expropriate
any property of the plan members. Accordingly, I would dismiss the appeal.
II.
Facts
A. The Pension Plans
[8]
The summary of facts
that follows parallels the findings of the Court of Appeal closely. There are
three pension plans involved in this appeal (the “Plans”). They were
established by statute for each of three groups: substantially all those who
are employed in the federal public service; the members of the RCMP; and the
regular force of the Canadian Forces (the “Plan members”). The relevant
statutes are the Public Service Superannuation Act, R.S.C. 1985,
c. P-36 (“PSSA ”); the Canadian Forces Superannuation Act, R.S.C.
1985, c. C-17 (“CFSA ”); and the Royal Canadian Mounted Police
Superannuation Act, R.S.C. 1985, c. R-11 (“RCMPSA ”) (collectively,
the “Superannuation Acts”).
[9]
Each of the Superannuation
Acts has legislative antecedents dating back to the late 19th or early 20th
centuries. As currently enacted, they date from the coming into force of the
present Superannuation Acts — January 1, 1954, for the PSSA , S.C.
1952-53, c. 47 (“PSSA 1954”); March 1, 1960, for the CFSA , S.C.
1959, c. 21; and April 1, 1960, for the RCMPSA , S.C. 1959, c. 34.
[10]
The Plans are the same
in all aspects relevant to these proceedings. For ease of reference, I will
generally refer only to the PSSA , but the analysis and conclusions apply
equally to the CFSA and the RCMPSA .
[11]
The Superannuation
Acts set out the terms of the Plans. They establish contributory, defined
benefit pension plans. Membership in the Plans is compulsory for all eligible
public service employees, members of the regular force of the Canadian Forces,
and members of the RCMP.
[12]
There are two relevant
time periods in this appeal. The first period is up to and including March 31,
2000. It precedes the coming into force of Bill C-78, legislation that amended
the Superannuation Acts and, thus, the Plans. The second period begins
on April 1, 2000, when Bill C-78 came into effect.
[13]
Employees are required
to make a contribution to the relevant Plan, by way of reservation of salary.
While the contribution rates for these Plans varied, employees generally
contribute in the range of 5 to 7.5 percent of their salaries.
[14]
The defined benefit to
which an employee is entitled, upon retirement, is determined in accordance
with a formula. The basic pension is two percent per year of pensionable
service (to a maximum of 35 years) multiplied by the average of the best five
consecutive years of salary.
[15]
The terms of the Plans
are not subject to collective bargaining. The PSSA Plan is excluded by virtue of s. 113(b)
of the Public Service Labour Relations Act, enacted by the Public
Service Modernization Act , S.C. 2003, c. 22, s. 2 (“PSLRA ”)
(formerly s. 57(2) (b) of the Public Service Staff Relations Act,
R.S.C. 1985, c. P-35 (“PSSRA ”) (rep. S.C. 2003, c. 22, s. 285 )). The RCMPSA
Plan is not subject to collective bargaining because RCMP members are expressly
excepted from para. (d) of the definition of “employee” in s. 2 (l) of
the PSLRA (formerly para. (e) of the definition of “employee” in
s. 2(1) of the PSSRA ) and thus have no collective bargaining rights. The
CFSA Plan is not subject to collective bargaining because members of the
Canadian Forces are neither Crown employees nor part of the public service as
defined in the PSLRA and therefore do not have collective bargaining
rights. Nor are the Plans
subject to the Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32
(2nd Supp .) (see s. 4 ).
[16]
Employee contributions
to the Plans were required to be deposited into the Consolidated Revenue Fund
(“CRF”). “Consolidated Revenue Fund” is defined to
mean “the aggregate of all public moneys that are on deposit at the credit of
the Receiver General”, in the Financial Administration Act, R.S.C. 1985,
c. F-11 (“FAA ”), s. 2 . Prior
to April 1, 2000, contributions to the Plans were reflected as credits to the
“Superannuation Accounts” (or “Accounts”), which were statutorily established
for each of the Plans. Amounts payable pursuant to the Superannuation Acts
(pension benefits) were paid from the CRF and debited to the appropriate
Superannuation Account.
[17]
In addition to credits reflecting Plan members’
contributions, the legislatively prescribed credits to the Superannuation
Accounts prior to April 1, 2000, consisted of the following: (1) credits in
respect of contributions by Public Service corporations; (2) government contribution
credits; (3) additional actuarial liability credits (to cover actuarial
liabilities); (4) transfers from other pension plans and Supplementary
Retirement Benefits Accounts; and (5) interest credits on the balance in the
Superannuation Accounts at the rate prescribed by regulation.
[18]
The required government contribution credits
varied over time. For example, the government was required to credit the
Superannuation Account created for the PSSA Plan with amounts matching
employee contributions in respect of current service: a year in arrears, from
1954 to 1991, and on a monthly basis, from 1991 to 2000. Additionally, further
credits were required in relation to past or “buy-back” service, and to provide
for the cost of benefits accrued in the month in relation to current service.
[19]
The reporting of the
government’s pension liabilities is subject to the FAA , the applicable Superannuation
Act, and the Public Pensions Reporting Act, R.S.C. 1985, c. 13 (2nd
Supp .) (“PPRA ”). Pursuant to s. 64 of the FAA , for each fiscal
year the Receiver General must prepare, and the President of the Treasury Board
must lay before the House of Commons, an annual report known as the “Public
Accounts”. The Public Accounts reflect the value of the assets and liabilities
of Her Majesty in Right of Canada. They are the Government of Canada’s main
financial reporting document.
[20]
The two principal
statements in the Public Accounts are the Statement of Financial Position,
which sets out the assets and liabilities of the government, and the Statement
of Operations and Accumulated Deficit, which sets out the government’s revenues
and expenditures.
[21]
The transactions and
balances in the Superannuation Accounts are reported annually in the Public
Accounts. The government’s annual credits made pursuant to the Superannuation
Acts are shown as a government expense in the Statement of Operations and
Accumulated Deficit. The amounts set out in the Superannuation Accounts are
shown as an ongoing liability of the government in its Statement of Financial
Position. The Superannuation Accounts have been classified as “Specified
Purpose Accounts” under the liabilities section of the Statement of Financial
Position since the 1980-81 fiscal year.
[22]
As required by the Superannuation
Acts and the PPRA , actuarial reports were received from time to time
with respect to each of the Plans. The PPRA requires the Chief Actuary
of the Office of the Superintendent of Financial Institutions to periodically
estimate the cost of the government’s future pension obligations, and to cause
a “certification of the assets” of the Plans (ss. 5, 8(1) and 9(1)). To the
extent that the estimated cost of the pension liabilities is greater than the
certified value of the “assets” reflected in the Superannuation Accounts, there
is an “actuarial deficit”. On the other hand, where the certified value of the
“assets” reflected in the Superannuation Accounts exceeds estimated pension
liabilities, there is an “actuarial surplus”.
[23]
In the 1990s, the
actuarial valuations showed that the estimated cost of the present and future
obligations for each of the three Plans was less than the total of the amounts
showing in the Superannuation Accounts. The surplus arose as a result of a
combination of factors, including low inflation rates, high interest rates,
government-imposed restraints on salaries, the capping of indexing benefits in
the 1980s, and changing assumptions in calculating the actuarial liability of
the Plans. The surplus in the three Superannuation Accounts reached $16.6
billion by December 1992, climbing to $23.4 billion in March 1996 and $30.9
billion in March 1999.
B. Amortization of the Surplus
[24]
In the 1990-91 fiscal
year, the government began to “amortize” the actuarial surplus in the
Superannuation Accounts. The word “amortize” is used to describe the actions
undertaken by the government, over a number of years, to gradually reduce the
impact of the actuarial surplus on the Public Accounts. The amortization
consisted of the following actions: the government continued to credit its contributions
to the Superannuation Accounts in accordance with the Superannuation Acts.
However, the Public Accounts recorded lower net annual
pension expenses. To accomplish this objective, the government booked into the
Public Accounts negative expenses to reflect the amount of the surplus
amortized during the year, thereby reducing the government’s total pension
expenses. For the books to balance, the negative adjustments to pension
expenses were equally reflected in reductions in the government’s total stated
pension liabilities on its Statement of Financial Position. To make this
happen, the amounts amortized each year were debited to contra-liability
accounts (i.e., liability accounts having a debit balance) created in the
Public Accounts. These accounts went by different names over the years — such
as the “Allowance for Pension Adjustments” — but their function was the same:
they allowed the government to reduce its stated net pension liabilities in the
Public Accounts by the amount of the amortization without debiting the
Superannuation Accounts themselves. The Superannuation Accounts maintained
their credit balances, unaffected by the amortization, but the debit balances
in the separate allowance accounts partially offset them in the Public Accounts.
The government’s stated net pension liabilities were in this way gradually
brought toward the actuarial valuation of Plan liabilities (i.e., the surplus
was gradually reduced), but the balances in the Superannuation Accounts were
not affected.
[25]
The effect of this
“amortization” was therefore twofold: it reduced the government’s annual budget
deficit (or increased the annual budget surplus) by reducing annual pension
expenditures, and it brought the government’s net debt down by reducing the net
pension liabilities to an amount closer to the actuarial estimates of the
government’s future pension obligations.
[26]
During the 1990s, the
government amortized a total of $18.6 billion, with further amounts being
amortized after the year 2000.
C. Bill C-78
[27]
In 1999, the government
introduced Bill C-78, which came into force on April 1, 2000. It made
significant changes to the Superannuation Acts. It established a
Pension Fund in each of the Superannuation Acts that replaced the
Superannuation Accounts for post-March 31, 2000 service (“Pension Funds”).
Since April 1, 2000, employee and government contributions in respect of
current service have been made to the Pension Funds.
[28]
Under Bill C-78, the
amounts in the Pension Funds were to be invested externally. Bill C-78
established an investment board to manage the assets in the Pension Funds. One
of the objects of the investment Board is to manage the amounts that are
transferred to it, pursuant to the amended Superannuation Act, “in the
best interests of the contributors and beneficiaries under those Acts” (s.
4(1)(a)).
[29]
Bill C-78 added s.
44(9) to (13) to the PSSA . In general terms, these subsections both
grant discretion to and create an obligation on the Minister to debit the
Superannuation Accounts to reduce the actuarial surplus. While the Minister
has the discretion to debit the Superannuation Accounts with any amount of the
surplus between 100 percent and 110 percent of the amount estimated to be
required to meet the cost of benefits payable, as determined from the actuarial
reports, the Minister is required to debit the Accounts for any actuarial
surplus that exceeds 110 percent of the amount required to pay future benefits.
[30]
Bill C-78 provided that
after January 1, 2004, employee contribution rates would no longer be set by
legislation but would be set at the discretion of the Treasury Board, subject
to certain restrictions. Employees faced a legislated increase of 15 to 33
percent in contribution rates in the years from 2000 to 2003. In 2005, the
Treasury Board announced further increases.
[31]
Bill C-78 also changed
the basis for the government’s annual contributions. Instead of being required
to make contributions matching those made by employees, the government’s
contributions are now determined by the President of the Treasury Board, based
on the actuarial valuations for each Plan.
[32]
All benefits for
pensionable service prior to April 1, 2000, when paid, are charged to the
appropriate Superannuation Account. However, benefits paid for service
thereafter are paid from the appropriate Pension Fund.
[33]
Between 2001 and 2004,
the government relied on Bill C-78 to debit over $28 billion from the
Superannuation Accounts. Since the effect of the prior amortization was to
reduce the annual deficit or increase the annual surplus, and to reduce the
government’s net debt, the debiting of any amounts already amortized had no
effect on Canada’s financial position.
D. The Appellants’ Action
[34]
The appellants brought
an action for the return of the actuarial surplus reflected in the
Superannuation Accounts, arguing that the government had breached its trust and
fiduciary duties by amortizing and debiting the surplus. The appellants also
maintained that Bill C-78 did not extinguish Plan members’ interest in the
surplus as it did not evidence an unambiguous intent to expropriate without
compensation. The trial judge dismissed the appellants’ action. The Ontario
Court of Appeal dismissed their appeal.
[35]
In their appeal in this
Court, the appellants seek a declaration that the Plan members have an
equitable interest in the outstanding balance in the Superannuation Accounts as
of March 31, 2000. They say that the equitable interest includes the right to
have the entire amount in the Superannuation Accounts used solely for the
purpose of providing pension benefits to Plan members. In the alternative, the
appellants seek a declaration that the equitable interest of the Plan members
constitutes a right to have a share of the actuarial surplus in the
Superannuation Accounts used for the purpose of providing benefits to the Plan
members. Under this alternative, the appellants have prorated their share in
accordance with the ratio of employee and employer contributions as of March
31, 2000. The Plan members’ contributions were the equivalent of 42.2 percent
of the actuarial surplus on that date. They also seek a declaration that ss.
44(9) and 44(10) of Bill C-78 do not authorize the reduction from the
Superannuation Accounts of any amount in which Plan members have an equitable
interest without compensation. And they seek an order that the Superannuation
Accounts be credited with all amounts that were removed following Bill C-78 in
which the Plan members have an equitable interest, together with interest.
E. Relevant Statutory
Provisions
[36]
The relevant statutory provisions are set forth
in the Appendix at the conclusion of these reasons.
III.
Judgments Below
A. Ontario Superior Court of
Justice (Panet J.) (2007), 66 C.C.P.B. 54
[37]
The appellants brought
a claim for breach of trust and a claim for breach of fiduciary duty with
respect to the outstanding balance in the Superannuation Accounts, as of March
31, 2000.
[38]
In considering the
statutes and other documents, Panet J. found that the trust requirement that
there be certainty of intention was not present. Panet J. also concluded that
there was no certainty of subject matter. He found that there was no separate
or segregated fund. Panet J. rejected the appellants’ claim for breach of
fiduciary duty, as there was no scope for the exercise of any discretion or
power, a necessary element of a fiduciary relationship. Panet J. held that the
government had no discretion because the PSSA was a complete statutory
code.
[39]
The appellants also
objected to the amortization of the surplus. Panet J. rejected this claim on
the basis that the Public Service Superannuation Plan was not a funded plan,
and that the amortized amounts in the Superannuation Account were not assets
that had been removed.
[40]
In Panet J.’s view, the Superannuation Accounts
did not contain assets. Rather, the Accounts were maintained by the government,
pursuant to the FAA , to record and disclose an estimate of its pension
liability (the cost of the pension obligation).
[41]
Panet J. considered whether the government had
borrowed from the Superannuation Accounts the difference between the
contributions to the Plans plus interest, and the pension payments from the
Plans. He found there was no amount owing by the government to the
Superannuation Accounts.
[42]
In his view, the government’s pension liability
comes from the Superannuation Acts, not the Accounts. The Superannuation
Accounts are effectively an estimate of the cost of the government’s pension
liability. Panet J. considered the actuarial reports periodically submitted to
Parliament, which make reference to assets and liabilities in the Plans.
However, he found that the use of the word “assets” in these reports does not
correspond to the ordinary meaning of that word. “Asset” was used to mean the
recorded contributions of employees and the government, less benefits paid —
i.e., the balances in the Superannuation Accounts.
[43]
Even though he
concluded that the Superannuation Accounts did not contain assets, Panet J.
went on to consider whether Bill C-78 expropriated any interest that the Plan
members had in the surplus. He concluded that, in clear and unambiguous terms,
Bill C-78 required the Minister to debit from the Superannuation Accounts any
amount that exceeds 110 percent of the amount estimated to be required to meet
pension obligations, and that it gave him the discretion to debit additional
amounts of the surplus.
[44]
Finally, Panet J.
rejected the appellants’ argument that Bill C-78 breached the Charter rights
of Plan members.
[45]
Panet J. concluded that
the declarations sought by the appellants should not be granted.
B. Ontario Court of Appeal
(Gillese J.A., Concurred in by Laskin and Juriansz JJ.A.), 2010 ONCA 657,
102 O.R. (3d) 241
[46]
Gillese J.A. found that
the trial judge had correctly concluded that the Superannuation Accounts did
not contain assets, notwithstanding the appearance of the word “assets” in the PSSA .
In her view, Superannuation Accounts were “legislated ledgers”, designed to
record the amounts credited to the Plans, and to estimate the government’s
liability to provide benefits to Plan members. The “real money” deducted from
employees’ pay cheques was deposited (retained) in the CRF, becoming a part of
the aggregate of all public moneys, with a corresponding credit in the
appropriate Superannuation Account (paras. 49 to 52).
[47]
Although government
documents referred to the Plans as being “fully funded”, Gillese J.A. held
that, understood in context, that phrase simply meant that the value of
credited contributions in the Superannuation Accounts was sufficient to
discharge the government’s liability for promised pension benefits (para. 55).
[48]
However, Gillese J.A.
held that the trial judge erred by determining that the PSSA was a
complete code. While the PSSA listed many of the parties’ rights and
obligations, prior to April 1, 2000, the PSSA did not address the
actuarial surpluses in the Superannuation Account. Accordingly, the Act did not
constitute a complete code prior to Bill C-78 coming into force.
[49]
It did not follow from
this conclusion that Plan members had equitable rights to the actuarial
surplus. They did not have an interest in the surplus flowing from the PSSA ,
the employment relationship, trust principles, or from the government’s
fiduciary obligations as Plan administrator.
[50]
Gillese J.A. found that
the government was not a fiduciary in its capacity as administrator of the
Plans prior to April 1, 2000. However, she held that the trial judge had erred
by determining that the government did not have any discretion that could give
rise to a fiduciary duty. In her view, the government had discretion in
managing the amounts credited to the Superannuation Accounts. The government
made the decision to deal with the actuarial surplus by amortizing it, and this
amounted to the exercise of discretion.
[51]
Gillese J.A. held that there was no property
belonging to the Plan members that was affected by the government’s exercise of
discretion, but that the way the government exercised its discretion had an
effect on the practical interests of the Plan members. It appeared to her that
the exercise of discretion led to the employees having to contribute more
towards the cost of their pensions. However, the core question was whether
“given all the surrounding circumstances, one party could reasonably have
expected that another would act in the former’s best interests” (para. 94). In
this case, she concluded, it would not be reasonable for Plan members to
expect the government to act in their best interests when exercising its
discretion. A fiduciary duty is unlikely to apply to the Crown, as it would
create a conflict between the Crown’s responsibility to act in the public
interest, on one hand, and its obligation to act in the best interests of
beneficiaries, on the other.
[52]
Gillese J.A. also held
that a constructive trust should not be imposed. She found that it need not be
imposed to satisfy the requirements of good conscience, in view of the lack of
an equitable obligation on the part of the government. Second, the government
was not enriched by the amortization and removal (pursuant to Bill C-78) of the
actuarial surplus. In her view, whatever benefit there was to the amortization,
it enured to all Canadian taxpayers. In any event, Bill C-78 was a juristic
reason justifying any removal.
[53]
Accordingly, Gillese
J.A. dismissed the appeal. Laskin and Juriansz JJ.A. concurred.
IV.
Issues
[54]
The issues in this
appeal are:
a. Did
the Superannuation Accounts contain assets?
b. Did
the government owe a fiduciary duty to the Plan members?
c. Should
a constructive trust be imposed over the balances in the Superannuation
Accounts as of March 31, 2000?
d. Did
Bill C-78 authorize the government to debit the actuarial surpluses in the
Superannuation Accounts?
V.
Analysis
[55]
This Court has considered the law related to
pension plan surpluses on several occasions, but it has always done so in the
context of private sector pension plans. In this appeal, the Court must
consider pension plan surpluses in the context of statutory, public sector
pension plans.
[56]
Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611, is the leading statement of the law on
pension plan surpluses. That case establishes the principle that, in the
absence of overriding legislation, the first step to assessing competing claims
to the surplus is to determine, in accordance with ordinary principles of trust
law, whether the pension fund is impressed with a trust. If it is, all
applicable trust principles apply. If, on the other hand, the pension fund is
not subject to a trust, entitlement to the surplus will be assessed in
accordance with the principles of contract interpretation.
[57]
In Burke v. Hudson’s Bay Co., 2010 SCC
34, [2010] 2 S.C.R. 273, this Court affirmed Schmidt, along with Nolan
v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, and Monsanto
Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54,
[2004] 3 S.C.R. 152, to the effect that entitlement to a pension plan surplus
is “determined according to the words of the relevant documents and applicable
contract and trust principles and statutory provisions” (para. 26).
[58]
At trial, the
appellants advanced the argument that the Superannuation Acts created
express trusts for the benefit of Plan members. However,
the trial judge rejected the express trust argument, and it has not resurfaced
on appeal.
[59]
In this appeal, the appellants have based their
arguments not on express trust, but on constructive trust. Their contention is
that the Superannuation Accounts contain assets, and that the government is
under an equitable (fiduciary) obligation in respect of its management of
them. The appellants argue that the government breached its fiduciary duty by
amortizing the surplus, and that this gives rise to a constructive trust over
the assets in the Superannuation Accounts, in favour of the Plan members. The
appellants have also argued that a constructive trust should be imposed on the
basis of unjust enrichment. As mentioned above, central to both of these
arguments is the issue of whether the Superannuation Accounts in fact contained
assets. If they did not, then there could be no equitable interest subject to
a fiduciary duty, nor any unjust enrichment justifying a constructive trust.
Accordingly, the first issue to address is whether the Superannuation Accounts
contained assets.
A. Did the Superannuation
Accounts Contain Assets?
[60]
Both courts below found that the Superannuation
Accounts did not contain assets. At first instance, Panet J. rejected
appellants’ expert evidence that the primary asset of each Account is a
receivable from the government. He found that, in fact, the government had not
borrowed from the Superannuation Accounts and that there were no amounts owing
by the government to the Accounts. Rather, the Superannuation Accounts were no
more than accounts maintained by the government to record and disclose its
estimated pension liability. At the Court of Appeal, Gillese J.A. found no
error with this conclusion. In her view, “[i]n essence, the Superannuation
Accounts are legislated ledgers” (para. 50).
[61]
While there is no question that the
Superannuation Accounts are not pools of marketable securities, the appellants
maintain that the courts below erred in not finding that the Accounts contain
assets, namely, receivables owing from the government to the Accounts. They
submit that real money was contributed to the Accounts in each year, but,
because the amounts were not invested externally, the government effectively
borrowed this money from the Accounts for its own use — leaving promises to pay
in the Accounts. These promises to pay, they say, are assets, much like
Government of Canada bonds.
[62]
As I will presently explain, I agree with the
respondent and the courts below that the Superannuation Accounts do not contain
assets. The Superannuation Accounts are no more than accounting records
designed to track the operation of the Plans and to estimate the government’s
future pension liabilities.
(1) The
Superannuation Acts
[63]
The Superannuation Accounts are all established
by statute and, therefore, an analysis of their nature must begin with the
legislation. The current Superannuation Account for the Public Service
Superannuation Plan is a continuation of the account established by the 1952
revision of the Civil Service Superannuation Act, R.S.C. 1952, c.
50 (PSSA , definition of “Superannuation Act” in s. 3(1) and s.
4(2) ). The 1952 Revised Statutes of Canada re-enacted, in turn, a provision
that was originally found in An Act to amend the Civil Service
Superannuation Act, S.C. 1944-45, c. 34, s. 6, enacted by Parliament in
1944.
[64]
The Civil Service Superannuation Act, s.
21, provided that all funds collected and distributed pursuant to that Act flowed
into, and out of, the CRF:
21. (1) The moneys received under the provisions of this Act shall form
part of the Consolidated Revenue Fund, and the moneys payable under the said
provisions shall be payable out of the said Consolidated Revenue Fund.
The CRF was defined to mean, at the relevant time, in The Financial
Administration Act , S.C. 1951 (2nd Sess.), c. 12, s. 2(e), assented
to December 21, 1951, “the aggregate of all public moneys that are on deposit
at the credit of the Receiver General”. Section 21 of the Civil Service Superannuation Act
further provided for a special account in the CRF, to be known as the
Superannuation Account, for purposes of funds received and payable in respect
of the Act:
(2) There
shall be kept a Special Account in the Consolidated Revenue Fund, to be known
as the Superannuation Account, of all moneys so received or so payable, and
there shall be added to the said Account annually an amount representing
interest, at such rate and calculated in such manner as the Governor in Council
may by regulation prescribe, on the amount to the credit of such account.
[65]
The description of the Superannuation Account as
a “Special Account in the Consolidated Revenue Fund . . . of all moneys so received
or so payable” describes accounting entries — a record of transactions
relating to government pension plans reflected in credits and debits. It is
apparent from the statutory language that Parliament contemplated that the
Account would reflect Plan-related transactions into and out of the CRF.
Considered together with the direction to receive all Plan-related moneys into
the CRF, and to pay them out of the CRF, the language is consistent with
accounting entries rather than with a direction to keep a separate,
identifiable accumulation of assets.
[66]
As the current Superannuation Account is a
continuation of the account established by the 1952 Revised Statutes of Canada
(originally established legislatively in 1944), the current Superannuation
Account continues to represent accounting entries reflecting, through credits
and debits, superannuation Plan-related transactions into and out of the CRF.
[67]
In this regard, I pause to remind that the
Superannuation Account continues to exist notwithstanding the establishment in
2000 of the Pension Funds pursuant to Bill C-78. Benefits for pensionable
service prior to April 1, 2000, are, generally, charged to the Superannuation
Account and paid out of the CRF (PSSA, s. 43 ).
[68]
The current FAA supports the view that
all pension-related transactions are into and out of the CRF, and no money is
deposited in or withdrawn from the Superannuation Accounts themselves. The FAA
provides that “all public money shall be deposited to the credit of the
Receiver General”, and it defines “public money” as including “all money that
is paid to or received or collected by a public officer under or pursuant to
any Act . . . and is to be disbursed for a purpose specified in or pursuant to
that Act” (ss. 17 and 2 ). Thus, while the PSSA no longer refers
specifically to the Superannuation Account as being an account in the CRF, the
scheme of the FAA provides that the moneys collected under the PSSA
form part of the CRF. Thus, the continuation of the 1944 Superannuation
Account, an account in the CRF, is consistent with the financial administration
legislation currently in force.
[69]
When Parliament first established the
Superannuation Account, the intention was to create an accounting ledger to
track the operation of the superannuation Plan. Not only does the Account
record transactions into and out of the CRF, as I have explained, but the
credit balance reflects an estimate of Canada’s future pension liability under
the PSSA . This is demonstrated by the fact that, when the Account is in
deficit (i.e., is an understatement of the actuarial estimate of pension
liabilities), the PSSA requires the government to record actuarial
liability credits to bring the credit balance in the Account — through annual
instalments, to spread out the impact on the Public Accounts — toward the actuarial
estimate of the future pension obligation (PSSA, s. 44(6) to (8) ). In
this way, the Superannuation Account is useful from a financial reporting
perspective. And it explains why it is disclosed in the Public Accounts as a
government liability.
[70]
While the above discussion focuses on the
Superannuation Account applicable to the Public Service Superannuation Plan,
the conclusions apply equally to the other two pension plans at issue on this
appeal. The Canadian Forces Superannuation Account is a continuation of the
Permanent Services Pension Account established in the accounts of Canada
pursuant to the Defence Services Pension Act, R.S.C. 1952, c. 63, as it
read before March 1, 1960. The Permanent Services Pension Account was earlier
enacted pursuant to An Act to amend the Militia Pension Act, S.C. 1946,
c. 59, s. 6, and was described as “a Special Account in the Consolidated
Revenue Fund”. Likewise, the RCMP Superannuation Account is a continuation of
the Royal Canadian Mounted Police Pension Account established in the accounts
of Canada pursuant to the Royal Canadian Mounted Police Act, R.S.C.
1952, c. 241, as it read before April 1, 1960. The Royal Canadian Mounted
Police Pension Account was earlier enacted pursuant to An Act to amend the
Royal Canadian Mounted Police Act, S.C. 1947-48, c. 28, s. 10, and was also
said to be “a Special Account in the Consolidated Revenue Fund”.
[71]
The legislation supports the finding that the
Superannuation Accounts are accounting entries, rather than funded pools of
assets.
(2) The
“Borrowing Theory”
[72]
The appellants’ argument that the Superannuation
Account contained assets did not rely on the contention that there was
identifiable property in the Accounts that could be liquidated or sold. (This
much was admitted by the appellants’ expert, John Christie, at trial, upon
cross-examination: A.R., vol. III, at p. 142.) His theory (the “Borrowing
Theory”) was instead, that “[t]he assets of the plan are a promise to pay from
the government of Canada, a debt of the government of Canada” (A.R., vol. III,
at pp. 142-43). In his opinion, the assets consisted of the “promise to pay to
the account the amount that was owed to it by the government of Canada” (p.
147).
[73]
Scott Milne (the appellants’ accountant)
presented a similar opinion. He stated at trial that the government has
effectively
paid the money into the account, and then they have borrowed the money back
from the account. So the end result is . . . that the pension account has a
receivable from the government and the government has a payable to the pension
account. [A.R., vol. IV, at p. 48]
[74]
The trial judge rejected the expert evidence
supporting the Borrowing Theory, and the Court of Appeal agreed. I see no
reason to interfere with this finding.
[75]
The appellants argue, incorrectly in my view,
that “if the Government did not borrow the amounts in the Superannuation
Accounts, the only conclusion available is that it violated the PSSA by
failing to contribute to the Accounts in the first place” (A.F., at para. 57).
They assert that the experts testified at trial that the only way for the
government to have met its statutory obligations without actually transferring
money into the Accounts was through the Borrowing Theory. The problem, however,
is that this argument is premised on a legally incorrect interpretation of the
governing legislation. As already discussed, the Superannuation Accounts were —
and are — legislated ledgers to track Plan-related CRF transactions and to
estimate the government’s pension liabilities to Plan members. In short, they
are accounting records — that is to say, information — not repositories
of assets capable of holding property.
[76]
For the appellants’ Borrowing Theory to hold
together, it must be possible to say that the government was required to
contribute property to the Superannuation Accounts, and that it was, in fact,
borrowing this property back and depositing it into the CRF for public
purposes. However, if the Superannuation Accounts are informational accounting
records, as I have already concluded they are, this is manifestly impossible.
There can be no transfer of actual property to — or borrowing from — an
informational record. The property is, and always was, elsewhere: viz., prior
to April 1, 2000, the legislation contemplated that all property associated
with the operation of the Plans was to be held in, and ultimately be paid out
of, the CRF. Throughout the operation of the Superannuation Accounts, there was
no intermediate step in which any property should have gone into the Accounts,
only to be immediately borrowed back by the government. Not only were such
“offsetting cheques” (A.R., vol. IV, at p. 51) not contemplated by the
legislation, but the trial judge also found as a fact that this is not how the
government was operating the Accounts. Legislatively, the Accounts were
informational records incapable of holding assets; in practice, they were
treated as such. There was no borrowing from them; there was no debt owing to
them; there was no property in them.
[77]
As I have said, the Superannuation Acts required
the government to record accounting credits and debits to track the operation
of the Plans, and to pay the statutorily defined benefits to members out of the
CRF. But they did not require the government to transfer assets into the
Accounts, nor did they require the government to “borrow” from the Accounts or
to place paperless government receivables in them to reflect this “borrowing”.
The suggestion that any of this was statutorily required is not reflected in
the relevant legislation. The Superannuation Accounts were intended to be, and
were, part of the government’s accounting system. Contrary to the appellants’
contention, the Accounts were not capable of holding assets.
[78]
The appellants also put before the Court various
government documents and reports that refer to “borrowing” from the
Superannuation Accounts. In the Auditor General’s 1991 report to the House of
Commons, for example, it is stated that a
substantial
portion of the government’s budgetary deficit is financed through internal non-cash
borrowing from specified purpose accounts (SPAs). . . . These
borrowings do not involve cash but rather result from a deferral of payments of
contributions and interest owed by the government to the third parties on whose
behalf the SPAs are administered. [A.R., vol. IV, at p. 233]
[79]
Similarly, it is written in the 1994 report of
the Economic Analysis and Forecasting Division, entitled “Public Service
Pension Review: The Macroeconomic Impacts of Investing in A Diversified
Portfolio of Market Assets”:
At
present, the pension funds are, in effect, segmented off from the capital
market. They constitute a pool of funds to which only the government has
access. The Government “borrows” from the fund and credits the fund with
interest as if the borrowing was done exclusively through 20-year Government of
Canada bonds. [A.R., vol. V, at p. 167]
[80]
It is important, however, to understand these
references to “borrowing” in context. As the Treasury Board Secretariat explained in its response to
the Auditor General’s 1991 report: “The government does
not borrow funds directly from the public service pension accounts to finance
other spending activities. The government has borrowed from the pension
accounts only in the sense that by not raising money to invest required
employee and government contributions in marketable securities it has not had
to borrow money in the capital markets” (A.R., vol. IV, at p. 237).
[81]
There is a difference between saying that the
effect of the superannuation scheme operates as if the government were
borrowing from the capital markets, without actually doing so — as the Treasury
Board Secretariat explains — and saying the government is actually
borrowing from the Superannuation Accounts, in the sense that a debt is
owing to the Accounts (such that the Accounts hold government
receivables). The legislation does not support the appellants’ contention that
there was borrowing from the Accounts. The superannuation scheme reflects
“internal borrowing” only in the sense that it avoids, by design, the need for
the external borrowing that would otherwise be required to finance the
government’s pension obligations.
[82]
It remains only to dispose of the appellants’
reliance on Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9,
[2009] 1 S.C.R. 222. In that case, this Court was concerned with the
Crown’s obligations in respect of oil and gas royalties collected on behalf of
Aboriginal bands. The Crown deposited the royalties into the CRF and credited
interest based on the market yield of long-term government bonds. Superficially
relevant to this appeal is the discussion in that case of the Crown’s
“borrowing” of royalty moneys. The bands argued that the Crown was in breach of
its fiduciary duty because (1) a trustee is not permitted to borrow from a trust
fund, and (2) by holding the royalties in the CRF for use by the Crown, the
Crown was engaged in “forced borrowing” of the assets in the trust (para. 126).
This Court agreed that the “Crown is borrowing the bands’ money held in the
CRF” (para. 127). However, it concluded that this practice was not a breach of
the Crown’s fiduciary duty because the “borrowing” was required by legislation
(para. 127).
[83]
It might be said that a similar type of
“borrowing” is reflected in the present appeal. While the government owed
future obligations to the Plan members (their statutorily defined benefits), it
had the use of current funds in the CRF, including the amounts of employee
contributions withheld from their pay cheques. Likewise, by not having to
withdraw funds from the CRF to satisfy its own contribution obligations, the
government continued to have the use of funds that it would have otherwise had
to set aside to invest in marketable securities. As already discussed, however,
it does not follow from this “internal borrowing” that the Superannuation
Accounts contain government receivables: the Superannuation Accounts are no
more than legislated accounting records. Ermineskin does not suggest
otherwise.
[84]
Further, in Ermineskin, the Crown
received royalty moneys “in trust” for the bands, and the Court concluded that
the relationship between the Crown and the bands was “trust-like in nature”
(para. 74). Upon collecting the royalty moneys, “in trust”, the Crown was
statutorily required to retain them in the CRF (para. 127). In other words, the
legislation required the Crown to take property that was subject to a
“trust-like” fiduciary duty, collected on behalf of beneficiaries, and to
deposit it into the CRF for public use. It is accurate to describe this
statutory scheme as involving the public “borrowing” of property from the
“trust”. This is in contrast to the present case: the government did not
undertake, expressly or impliedly, to act in the best interests of Plan members
with respect to the actuarial surplus (discussed below). The Superannuation
Accounts are just accounting records and they are not funds, nor are they
“trust-like”, such that it is possible to borrow from them.
[85]
Accordingly, the courts below were right to
reject the Borrowing Theory. Panet J. correctly found that, “[i]n fact, there
is no such borrowing and there is no amount owing by the government to the
Superannuation Account of each plan” (para. 222).
(3) The Word “Assets”
[86]
The appellants point out that the Superannuation
Acts and the PPRA use the word “assets” in connection with the
Superannuation Accounts.
[87]
The PSSA 1954 required the reporting of
“an estimate of the extent to which the assets of the said [Superannuation]
Account are sufficient to meet the cost of the benefits payable under this Act”
(s. 33). The PPRA provides that the “Minister shall cause a
certification of the assets of a pension plan established under the Canadian
Forces Superannuation Act , . . . the Public Service
Superannuation Act , [and] the Royal Canadian Mounted Police Superannuation
Act . . . to be made and a report thereof to be filed” (s. 8 ).
The PPRA also refers to the “going concern assets” of the Plans (s. 7).
[88]
These provisions pre-date Bill C-78, which
amended the Superannuation Acts to make specific reference to the PPRA .
From September 14, 1999, onward, the PSSA , for example, provided:
45. In accordance with the Public Pensions Reporting Act , a
cost certificate, an actuarial valuation report and an assets report on
the state of each of the Superannuation Account, the Public Service
Superannuation Investment Fund and the Public Service Pension Fund shall be
prepared, filed with the Minister designated under that Act and laid before
Parliament.
[89]
The appellants say that
these legislative references mean that the Superannuation Accounts contain assets, in the sense that
there is something of value in the Accounts to which the Plan members
could have an equitable interest.
[90]
In my view, the word “assets” in the Superannuation
Acts and the PPRA , when it is used in connection with the
Superannuation Accounts, refers to the credit balances reflected in the
Accounts. As discussed above, the actual moneys related to pension
contributions remained in the CRF until paid out to members, and the Accounts
did not contain government debt. The Superannuation Accounts themselves
reflect accounting credits and debits. Prior to Bill C-78, there was no
mechanism in the Superannuation Acts, or elsewhere, to direct payments
into a separate pension fund.
[91]
Accordingly, the word “assets” in the
legislation cannot indicate that the Superannuation Accounts contain any
property to which the Plan members could have an interest. I would not,
however, agree with the Court of Appeal’s suggestion that the Parliamentary use
of the word “assets” reflects “sloppy use of language” (para. 49). Rather, the
word “asset” is being used in the Superannuation Acts and the PPRA
in a different sense: as Panet J. said in respect of the actuarial reports
periodically submitted to Parliament, the term “assets” refers to the credit
balances in the Superannuation Accounts (para. 228). The same, in my view,
applies to the legislation. It is simply a matter of definition.
(4) Extrinsic Aids
[92]
The appellants rely on several representations
by government to the effect that the Superannuation Accounts contain assets.
The authority to rely on such representations is found in Schmidt, where
Cory J. stated:
Documents not normally considered to
have legal effect may nonetheless form part of the legal matrix within which
the rights of employers and employees participating in a pension plan must be
determined. Whether they do so will depend upon the wording of the documents,
the circumstances in which they were produced, and the effect which they had on
the parties, particularly the employees. [p. 669]
[93]
In Burke, however, this Court determined
that, where the relevant articles in the plan documents were unambiguous, it
was not necessary to consider surrounding documents (in that case, employer
pension booklets) as interpretative aids.
[94]
Schmidt and Burke
were decided in the private law context. As this case involves statutory plans,
the considerations are different. Specifically, it is necessary to consider
the law on extrinsic evidence in statutory interpretation.
[95]
As this Court reiterated in Bell ExpressVu
Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[i]t is only
when genuine ambiguity arises between two or more plausible readings, each
equally in accordance with the intentions of the statute, that the courts need
to resort to external interpretive aids” (para. 29 (emphasis deleted), quoting CanadianOxy
Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para.
14).
[96]
I have found that the Superannuation Acts require
the Superannuation Accounts to operate like accounting records, tracking
pension-related payments that are made into and out of the CRF. The Accounts
are not required by the Superannuation Acts to be segregated, funded accounts,
that receive or make any actual payments themselves; thus, the legislation does
not require them to contain assets. The language in the legislation is quite
consistent: “assets” simply has a statutorily specific meaning, namely, the
credit balances in the Accounts. However, even were it appropriate to look at
extrinsic materials, they do not assist the appellants for the reasons that
follow.
[97]
The appellants present documents that were
produced years after the Superannuation Accounts were established. They have
not pointed to documents coinciding with (or preceding) the creation of the
Superannuation Accounts, which, as noted above, are continued by the
current Superannuation Acts.
[98]
The appellants’ documents therefore reflect
subsequent governments’ interpretations of previous Parliamentary work (United
States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 45). However, as
Cory and Iacobucci JJ. wrote in the context of subsequent legislative history,
“in matters of legal interpretation, it is the judgment of the courts and not
the lawmakers that matters. It is for judges to determine what the intention of
the enacting Parliament was” (para. 45). Accordingly, it is necessary to be
cautious when relying on the many subsequent government documents to which the
appellants have referred the Court.
[99]
Further, Parliament, which created the
Superannuation Accounts, is to be distinguished from the executive branch of
government, which administers them. Although it is not impossible that
governmental documents could assist in the interpretation of legislation, the
words of subsequent government Ministers and bureaucrats offer minimal guidance
in identifying Parliament’s intention concerning the Superannuation Accounts.
[100]
The appellants present one Parliamentary debate
that took place prior to the enactment of Bill C-78. In February 1992, the
President of the Treasury Board said, when introducing Bill C-55, that the
“bill also proposes that all [superannuation] plans should henceforth be
operated on a fully funded basis” (House of Commons Debates, vol. VI,
3rd Sess., 34th Parl., February 24, 1992, at p. 7486). He went on to say that
the Superannuation Acts would be amended to “consolidat[e] the assets
and obligations in respect of each [sector]” (p. 7486).
[101]
However, Bill C-55, which was enacted as S.C.
1992, c. 46 , did nothing to change the nature of any of the Superannuation
Accounts. The Accounts did not
hold actual assets before 1992, and the amendments did not change this fact.
[102]
The notion that Bill C-55 made the Superannuation Accounts “fully
funded” is also found in the 1993 document “Treasury Board Secretariat and
Department of Finance Study of the Implications of the Current and Alternative
Methods of Financing Federal Public Service Pensions”. With respect to the
words “fully funded”, the document states: “Among other provisions of Bill
C-55, the Superannuation Acts were amended to require, effective April 1991,
that the plans be fully funded; that is, that contributions be made each month
by the Government which, together with employee contributions and interest
credits, are sufficient to provide for the cost of the benefits that have
accrued in respect of that month” (A.R., vol. V, at p. 221). In other words,
“fully funded” in this context refers to government contribution credits that
must be made to record the cost of benefits accruing each month. It does not
refer to an identifiable fund of assets set aside to cover the government’s
pension liabilities.
[103]
The appellants also present a Treasury Board document
entitled “Basic Facts about Pensions in the Public Service of Canada”, dated
October 18, 1976. The Treasury Board expressly denied that the Plans (other
than indexation benefits) were “pay-as-you-go”. Rather, the Treasury Board
said that the “basic pensions are fully funded in a government account” (A.R.,
vol. V, at p. 11). The “Basic Facts” document explained the meaning of “fully
funded” as follows: “This means that pensions are provided for in such a way
that, if the Plan were suddenly terminated, the Account would, without further
contributions but with future interest earnings, have sufficient credits to
meet the pension payments . . .” (A.R., vol. V, at pp. 10-11).
[104]
The description of the Accounts as “fully
funded” is also found in an undated pension booklet which was at one time given
to federal employees (A.R., vol. V, at p. 83). And, as in the Superannuation
Acts, the language of “assets” can be found in various internal and
external governmental documents (see e.g. “Public Service Pensions”, January
1970 (A.R., vol. V, at p. 5)).
[105]
While the government documents presented by the
appellants use language stating that the Accounts contain assets, other
government documents, presented by the government, support the argument that
they do not. The Auditor General has several times
expressed — in his official observations on the Public Accounts — that the
Superannuation Accounts are “unfunded pensions, in the sense that assets have
not been set aside to pay for ultimate pension benefits” (“Supplementary
Information: Observations by the Auditor General on the Financial Statements of
the Government of Canada and the Statement of Transactions of the Debt
Servicing and Reduction Account”, in Public Accounts of Canada 1997
(1997), vol. I, 1.25, at p. 1.28; see also “Supplementary Information:
Observations by the Auditor General on the Financial Statements of the
Government of Canada, the Statement Required Under the Spending Control Act
and the Statement of Transactions of the Debt Servicing and Reduction Account”,
in Public Accounts of Canada 1996 (1996), vol. I, 1.24, at p. 1.27).
[106]
Similarly, the Towers Perrin consulting report,
“Return Expectations for the Public Service Superannuation Fund”, prepared for
the Department of Finance and Treasury Board in 1993, states that, “[i]n the
case of the PSSF [the “Public Service Superannuation Fund”], the plan is not
‘funded’ in the sense of an externally invested trust fund, but it is
accounted for and actuarially treated as if it were” (A.R., vol. V, at p. 145
(emphasis added)). In this document, the Plans are referred to as
“notionally-funded”.
[107]
In my view, even if reference to extrinsic aids
was appropriate, the extrinsic evidence available is inconclusive. Nor does it
afford insight into the intention of Parliament when creating the
Superannuation Accounts. Thus, I cannot give much weight to the documents
presented by the appellants in their submissions. It would appear that, from
time to time, government officials have inaccurately described the Superannuation
Accounts in publications and internal communications.
(5) Conclusion on
Whether the Superannuation Accounts Contain Assets
[108]
For the reasons given, I agree with the courts
below that the Superannuation Accounts do not hold assets — not even the
government receivables that the appellants suggest they contain. The Superannuation
Acts created the Accounts to track Plan-related CRF transactions and to
estimate the government’s pension liabilities to Plan members. In this way,
they are accounting records, not funded and segregated pools of assets. When
the word “assets” is used in the legislation in reference to the Superannuation
Accounts, it merely signifies their credit balances, not anything of value to
which the appellants could have an interest.
[109]
The courts below were correct to reject the
theory that the government borrowed from the Accounts, placing in them promises
to pay by the government (the purported assets in the Accounts). This theory is
inconsistent with the legislation in that it assumes that the government was
required to contribute property into the Accounts in the first place. As the
Accounts are no more than accounting records, this would have been impossible.
Prior to April 1, 2000, all of the real money associated with Canada’s pension
scheme remained unsegregated in the CRF, until benefits were actually paid —
out of the CRF — to Plan members.
[110]
I have concluded that
the Superannuation Accounts do not contain assets. Therefore, there was no
property in respect of which Plan members can have a legal or equitable
interest. However, even if the Accounts did contain assets, the appellants
have not established that Plan members have a proprietary interest in either
their contributions made or in the government credits under the Superannuation
Acts.
[111]
On a plain reading of
the Superannuation Acts, there is no suggestion that the Plan members
have a proprietary interest in their contributions. Contributing employees can
claim no continuing property interest in these amounts. In exchange for their
contributions, and with each year of pensionable service, employees gain a
legal entitlement to a future benefit. That is the nature of this defined
benefit plan.
[112]
The appellants asserted
that employees have an interest in both the employee and employer
contributions, plus interest, on the basis that they form part of employees’
total compensation. Even if it were to be assumed that employees have an
interest in the contributions at the point in time at which their salaries are
to be paid to them, no interest in these amounts could survive the requirement
in the Superannuation Acts that they be paid into the CRF and credited
to the Accounts. Rather, this is the “cost” paid by employees for the future
legal entitlement to their statutorily defined benefits. The Superannuation
Acts also do not establish that employees have an equitable interest in the
amounts credited to the Accounts. They provide only a legal entitlement to
statutorily defined pension benefits.
B. Did the Government Owe a
Fiduciary Duty to the Plan Members?
(1) Was There a
Fiduciary Relationship Between the Government and the Plan Members?
[113]
Fiduciary relationships may be either per se or
ad hoc. The former refers to those relationships that the law presumes
to be — and characterizes as — fiduciary (Galambos v. Perez, 2009 SCC
48, [2009] 3 S.C.R. 247, at paras. 36-37). The recognized categories give rise
to fiduciary duties “because
of their inherent purpose or their presumed factual or legal incidents” (para.
36). The existence of an ad hoc fiduciary
relationship, on the other hand, is determined on a case-by-case basis. Whereas
the per se categories describe relationships in which the fiduciary
character is “innate”, ad hoc fiduciary relationships arise from the
specific circumstances of a particular relationship (Galambos, at
para. 48).
[114]
The appellants argue
that the Court of Appeal erred in failing to find that the government was a per
se fiduciary in its role as plan administrator. Alternatively, they say
that the Court of Appeal erred in failing to find an ad hoc fiduciary
relationship in the circumstances: “the Government had undertaken to act in the
Plan Members’ best interests with respect to their pension contributions; the
Plan Members were in a vulnerable relationship in which the
Government had significant discretion; and the Government could exercise this
discretion to affect the Plan Members’ interests” (A.F., at para. 67).
According to the appellants, that interest includes both receiving pension
benefits and ensuring that their contributions were maintained to be used for
pension purposes.
[115]
Chief Justice McLachlin recently listed the per
se fiduciary relationships in Alberta v. Elder Advocates of Alberta
Society, 2011 SCC 24, [2011] 2 S.C.R. 261, identifying the following:
trustee-cestui que trust, executor-beneficiary, solicitor-client,
agent-principal, director-corporation, guardian-ward, and parent-child.
[116]
In this case, the government does not fall into
any of these categories. The closest category (trustee-cestui que trust)
does not apply because the government is not a true trustee in equity in
respect of any trust property held for the benefit of the Plan members. The
appellants contend, however, that the government is in a recognized fiduciary
role in its capacity as a pension plan administrator.
[117]
The administrator/pension Plan member
relationship was dealt with in Burke. This Court found that the indicia
of an ad hoc fiduciary relationship were met.
[118]
However, the authority of Burke on this
point is limited to the private pension plan context. Participants in public
pension plans are not subject to the same vulnerabilities or risks as
participants in private pension plans. The government stands behind the
pension plans that it provides for its employees, and is not subject to the
same sort of credit risks as are private entities. Furthermore, this Court
recognized in Elder Advocates that while the Crown is subject to the
normal requirements for establishing an ad hoc fiduciary relationship,
“the special characteristics of governmental responsibilities and functions
mean that governments will owe fiduciary duties only in limited and special
circumstances” (para. 37). McLachlin C.J. in that case quoted Dickson J., as he
then was, writing for the majority in Guerin v. The Queen, [1984] 2
S.C.R. 335, at p. 385:
It
should be noted that fiduciary duties generally arise only with regard to
obligations originating in a private law context. Public law duties, the
performance of which requires the exercise of discretion, do not typically give
rise to a fiduciary relationship. As the “political trust” cases indicate,
the Crown is not normally viewed as a fiduciary in the exercise of its
legislative or administrative function. [Emphasis added by McLachlin C.J.;
para. 37.]
[119]
Binnie J. made the same point writing for the
Court in Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245,
at para. 96: “The Crown can be no ordinary fiduciary; it wears many hats and
represents many interests, some of which cannot help but be conflicting
. . . .” The same principle also dictates that the Crown will
not be presumed to be a fiduciary based solely on its role bearing a similarity
to a traditional category of fiduciary.
[120]
It is not necessary
to decide the precise ambit of any potential fiduciary duty that might arise
between the government, as pension plan administrator, and the beneficiaries of
the Plan, or whether the relationship inherently carries with it some set of
fiduciary obligations. This is because it is clear that the government had no
fiduciary duty to the Plan members with respect to the actuarial surplus. This
is demonstrated under the template provided for identifying ad hoc
fiduciary duties in Frame v. Smith, [1987] 2 S.C.R. 99, and Elder
Advocates.
[121]
Beginning with Wilson
J.’s dissenting opinion in Frame, and subsequently adopted by the majority
of this Court (see e.g. Hodgkinson v. Simms,
[1994] 3 S.C.R. 377), the
following characteristics were said to identify those relationships where
fiduciary obligations had been imposed.
(1) The
fiduciary has scope for the exercise of some discretion or power.
(2) The
fiduciary can unilaterally exercise that power or discretion so as to affect
the beneficiary’s legal or practical interests.
(3) The
beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary
holding the discretion or power. [p. 136]
[122]
Most recently, in Elder
Advocates, McLachlin C.J. stated that the aforementioned characteristics were useful but did not provide a
complete code. This Court adopted the Hodgkinson factors, but added the
requirement of an undertaking by the alleged fiduciary to act in the best interest
of the alleged beneficiary or beneficiaries.
[123]
Each lower court in
this case applied the earlier version of the test, as Elder Advocates
had not yet been decided.
(2) Undertaking to
Act in the Best Interest of the Alleged Beneficiary
[124]
It is now definitely a requirement of an ad
hoc fiduciary relationship that the alleged fiduciary undertake, either
expressly or impliedly, to act in accordance with a duty of loyalty. It is critical that the purported
beneficiary be able to identify a forsaking of the interests of all others on
the part of the fiduciary, in favour of the beneficiary, in relation to the
specific interest at issue.
[125]
I have been able to
identify nothing in the Superannuation Acts, the FAA , or the PPRA
that supports the contention that the government has undertaken
to forsake the interests of all others (including taxpayers) in favour of the
Plan members, with respect to the actuarial surplus — the specific interest at
issue here.
[126]
By contrast, Bill C-78
establishes a legislated undertaking on the part of the Board (the
administrator of the new Pension Funds) to act in the best interest of
contributors, but only in respect of post-April 1, 2000 contributions. Section
4(1)(a) of Bill C-78 provides that the Board is “to manage amounts that
are transferred to it . . . in the best interests of the contributors
and beneficiaries under those Acts”. These words are not
found in the Superannuation Acts in respect of the Superannuation
Accounts.
[127]
I am reinforced in the
view that there was no undertaking here by the Chief Justice’s comment in Elder
Advocates that, where the issue relates to the exercise of a government
power or discretion, the required undertaking will generally be lacking. As
the Chief Justice said, at para. 44, an undertaking of a duty of loyalty by the
government
is
inherently at odds with its duty to act in the best interests of society as a
whole, and its obligation to spread limited resources among competing groups with equally valid claims
to its assistance: Sagharian (Litigation Guardian of) v. Ontario (Minister
of Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 47-49. The
circumstances in which this will occur are few. The Crown’s broad
responsibility to act in the public interest means that situations where it is
shown to owe a duty of loyalty to a particular person or group will be rare:
see Harris v. Canada, 2001 FCT 1408, [2002] 2 F.C. 484, at para. 178.
And further, “[i]f the
undertaking is alleged to flow from a statute, the language in the legislation
must clearly support it” (para. 45). The Superannuation Acts do not.
Accordingly, I would conclude that there has been no undertaking to act in
accordance with a duty of loyalty with respect to the actuarial surplus at
issue here. There is not, therefore, a fiduciary relationship between the
government and the Plan members. However, for the sake of completeness, I will
consider the other elements of the test.
(3) Were
the Plan Members Vulnerable to the Exercise of Discretion by the Government?
[128]
The second element of an ad hoc fiduciary
relationship, following Elder Advocates, at para. 33, requires (1) a defined person or class of persons
(i.e., the beneficiary or beneficiaries), who is or are (2) vulnerable
to the fiduciary, (3) in that the fiduciary has a discretionary power
over them.
[129]
In this case, there is no doubt that there is a defined class of persons capable
of being the beneficiaries in the alleged fiduciary relationship. The class
consists of the current and former employee-contributors and their
beneficiaries. The issue is whether the government had a discretionary power
over this class of persons in relation to the Superannuation Accounts.
Following Bill C-78, the Pension Investment Board and the Treasury Board had
clear discretionary powers in relation to the management of the new Pension
Funds, including the setting of employee contribution rates (the latter only
following January 1, 2004). As the appellants seek an equitable interest in
the Superannuation Accounts as they stood on March 31, 2000, the question is
whether the government had a discretionary power in relation to the
administration of the Superannuation Accounts prior to Bill C-78 coming into
force (April 1, 2000).
[130]
If, as the trial judge found, the Superannuation
Acts constituted a complete code with respect to the actuarial surplus, the
government would have no discretionary power to exercise with respect to the
surplus so as to affect any interest the Plan members may have in the surplus.
The concept of a “complete code” was discussed in Gladstone v. Canada
(Attorney General), 2005 SCC 21, [2005] 1 S.C.R. 325. In that case, the
Department of Fisheries and Oceans seized and sold spawn that Donald and
William Gladstone were accused of attempting to sell in violation of the Fisheries
Act, R.S.C. 1985, c. F-14 . Pursuant to that Act,
the Department deposited the net proceeds of the sale in the CRF. The
proceedings against the Gladstones were eventually stayed, and the net proceeds
from the sale were paid to them. However, the Attorney General refused to pay
interest.
[131]
This Court concluded that the Fisheries Act
is a “complete code” dealing with the return of seized property (Gladstone,
at para. 9). Major J. reasoned that the Act “creates a comprehensive framework for dealing with
issues arising from seizure” (para. 10). Thus, the Act did not create an obligation on
the Crown to pay interest on the proceeds of seized property.
[132]
I agree with Gillese
J.A. that the Superannuation Acts were not “complete codes” as these are
described in Gladstone, before the amendments made by Bill C-78
on April 1, 2000. Prior to that bill coming into force, the Superannuation
Acts did not address the surpluses in the Superannuation Accounts. While
the Superannuation Acts dealt with the accounting of deficits, there was
no mention of surpluses. Thus, the FAA — which gave the President of
the Treasury Board and the Minister of Finance discretion to include adjustment
accounts in the Public Accounts — was employed to supplement the accounting
rules in the Superannuation Acts (FAA, s. 64(2) (d)).
The government was entitled to exercise its discretion to amortize the surplus
because of the absence of provisions in the Superannuation Acts
governing the actuarial surpluses. Gillese J.A. correctly concluded that the Superannuation
Acts were not a complete code prior to April 1, 2000.
[133]
However, as I have explained, the accounting
treatment of the surpluses (the amortization) in respect of which the
government exercised a discretion did not alter the accounting balances in the
Superannuation Accounts; it only altered the representation of the financial
position of the Government of Canada in the Public Accounts.
[134]
As earlier determined, prior to Bill C-78 coming
into force, the government exercised discretion in respect of the surplus in
the Public Accounts. Section 63(2) of the FAA provides that the
Receiver General “shall cause
accounts to be kept to show such of the assets and direct and contingent
liabilities of Canada and shall establish such reserves with respect to the
assets and liabilities as, in the opinion of the President of the Treasury
Board and the Minister, are required to present fairly the financial position
of Canada”. Further, s. 64(2)(d) of the FAA provides that the
Public Accounts shall include “such other accounts and information relating to
the fiscal year as are deemed necessary by the President of the Treasury Board
and the Minister to present fairly the financial transactions and the financial
position of Canada”.
[135]
While
the FAA requires the Receiver General to present fairly the financial
position of Canada, the President of the
Treasury Board and the Minister of Finance have flexibility when it comes to
establishing the necessary accounts and adjustments. The amortization, which
included the creation of the “Estimate of Pension Adjustments” accounts to set
off the overstated liabilities (the actuarial surplus) in the Superannuation
Accounts, may be seen as an example of a discretionary decision directed at the
accurate presentation of the Public Accounts.
[136]
Prior to Bill C-78, the surpluses reflected in
the Superannuation Accounts were left intact. The surpluses were not debited
until Bill C-78 required such debiting after April 1, 2000. The amortization in
the 1990s was reflected only in the Public Accounts, for the purpose of
accurately presenting the true net state of Canada’s deficit or surplus and net
debt. This was an accounting decision, not a decision going to the substance
of the Plan members’ entitlements or interests. As the appellants’ expert
accountant asserted on cross-examination, accounting does not determine the
substance of a transaction.
[137]
I agree that there was a discretionary power
exercised in connection with the amortization of the Superannuation Accounts in
the 1990s. However, this particular discretion existed for, and was exercised
in connection with, the presentation of the Public Accounts, rather than the
administration of the Plan members’ pensions. The Plan members’ entitlement to
their statutorily defined benefits remained unchanged and remained subject to
Parliament’s legislative prerogative, not the government’s discretion.
Therefore, the discretion exercised by the government in respect of the Public
Accounts was irrelevant to the existence of a fiduciary duty in favour of the Plan
members. I conclude that the appellants are unable to establish vulnerability
to the government’s exercise of discretion.
(4) Did
the Plan Members Have a Substantial Legal or Practical Interest in the Actuarial Surplus?
[138]
In order to establish an ad hoc fiduciary
relationship, the purported beneficiary must have an “identifiable legal or vital practical interest that is
at stake” (Elder Advocates, at para. 35). In Elder
Advocates, the Chief Justice gave the following examples of sufficient
interests: “. . . property
rights, interests akin to property rights, and the type of fundamental human or personal interest that is implicated when
the state assumes guardianship of a child or incompetent person” (para. 51). A
statutory interest may also qualify in some circumstances: “. . . a
statute that creates a complete legal entitlement might also give rise to a
fiduciary duty on the part of government in relation to administering the
interest” (para. 51).
[139]
As I have concluded
that the Superannuation Accounts do not contain assets, the amortization of the
surpluses cannot have put any of the Plan members’ legal or equitable interests
at risk. However, the Court of Appeal suggested that
the members had a vital practical interest at stake. According to that court,
“the exercise of Discretion led to the situation where the employees were
obliged to contribute more towards the cost of their pensions” (para. 90).
[140]
Though the Court of Appeal did not finally
decide the matter, in my respectful opinion, its perception of the effect of
the exercise of discretion on contribution rates is not supported by the
evidence. I cannot agree that the amortization or debiting of the
Superannuation Accounts caused increases in contribution rates. The government
says that in 2006, the Minister started exercising the discretion conferred
upon him by Bill C-78 to raise the employee contribution rates up to a maximum
of 40 percent of the total required from both employees and the government. In
oral argument, the government indicated that during Parliamentary debates on
Bill C-78, the government explained that the Minister would be given discretion
to increase rates because the contribution ratios between government and Plan
members had gone from 60/40, historically, to 70/30, and were projected to go
to 80/20. The government indicated that it desired a return to the historical
60/40 contribution rate.
[141]
In any event, as the Chief Justice explained in Elder
Advocates, the interest at issue must be a specific private law interest,
and the entitlement at stake
“must not be contingent on future government action” (para. 51). Federal
employees are not entitled to any specific contribution rate, whether the
contribution is determined by Parliament (as it was prior to January 1, 2004),
or by the Treasury Board (starting January 1, 2004). The Plan members did not
have a specific private law interest in any prescribed contribution rates such
as to ground a fiduciary duty.
(5) Conclusion on Fiduciary Relationship
[142]
For these reasons, I conclude that there was no ad
hoc fiduciary relationship between the government and the Plan members with
respect to the actuarial surplus reflected in the Superannuation Accounts.
Most importantly, the government did not undertake, either expressly or
impliedly, to act in the best interests of the Plan members with respect to the
actuarial surplus. Without such an undertaking of loyalty in favour of these
particular stakeholders, the government’s duty was to act in the best interests
of society as a whole. This is inconsistent with the existence of a fiduciary
duty. Moreover, while the government exercised discretion in its accounting
treatment of the surpluses in the Superannuation Accounts, the Plan members
were not vulnerable to that discretion, nor did they have any legal or
practical interest at stake. The effect of the amortization was to disclose
more accurately Canada’s actual pension obligations, not to affect Plan
members’ statutory entitlements under the Plans.
C. Should a Constructive Trust
Be Imposed Over the Balances in the Superannuation Accounts as of March 31,
2000?
(1) Equitable
Obligation
[143]
In order to succeed, the appellants must
establish that they have an equitable interest in the actuarial surplus
reflected in the Superannuation Accounts, as their legal interest is limited to
their entitlement to statutorily defined benefits. They have not pursued their
express trust argument on appeal; they have not argued that a resulting trust
has arisen in their favour; therefore, a constructive trust is the only basis
upon which an “equitable interest” might be recognized in the actuarial surplus
(A.F., at para. 142).
[144]
Since this Court’s decision in Soulos v.
Korkontzilas, [1997] 2 S.C.R. 217, there have been two grounds on which a
court can impose a constructive trust: (1) breach of an equitable obligation,
and (2) unjust enrichment. The appellants have argued both in this appeal.
[145]
In Soulos, McLachlin J. (as she then was)
held that a constructive trust “may be imposed where good conscience so
requires” (para. 34). In her view, good conscience might require the
imposition of such a trust in two situations: (1) where property is obtained
wrongfully by the defendant (such as by breach of fiduciary duty or breach of
loyalty), or (2) where the defendant has been unjustly enriched.
[146]
Regarding the first category, McLachlin J.
identified four conditions which are generally required before a constructive
trust for wrongful conduct may be imposed:
(1) The
defendant must have been under an equitable obligation, that is, an obligation
of the type that courts of equity have enforced, in relation to the activities
giving rise to the assets in his hands;
(2) The
assets in the hands of the defendant must be shown to have resulted from deemed
or actual agency activities of the defendant in breach of his equitable
obligation to the plaintiff;
(3) The
plaintiff must show a legitimate reason for seeking a proprietary remedy,
either personal or related to the need to ensure that others like the defendant
remain faithful to their duties and;
(4) There must be no factors which would
render imposition of a constructive trust unjust in all the circumstances of
the case; e.g., the interests of intervening creditors must be protected. [Soulos,
at para. 45]
[147]
I have found that the government was not subject
to a fiduciary obligation in relation to its management of the Plans, and the
appellants have not argued that the government has breached any other equitable
obligation that it had to the Plan members. The appellants’ argument fails on
the first requirement of the Soulos test. I therefore turn to the other
basis on which a constructive trust may be imposed: unjust enrichment.
(2) Unjust Enrichment
[148]
As this Court found in Elder Advocates,
it is possible to claim unjust enrichment against the government (provided the
issue is not restitution for taxes paid under an ultra vires statute).
[149]
In order to prove a claim in unjust enrichment,
the plaintiff must establish: (1) an enrichment of the defendant; (2) a
corresponding deprivation of the plaintiff; and (3) an absence of juristic
reason for the enrichment (Pacific National Investments Ltd. v.
Victoria (City), 2004 SCC 75, [2004] 3 S.C.R. 575 (“Pacific National”),
at para. 14). Where these elements are satisfied, the remedy
of constructive trust may be available if (1) “monetary damages are
inadequate”, and (2) “there is a link between the contribution that founds the
action and the property in which the constructive trust is claimed” (Peter v.
Beblow, [1993] 1 S.C.R. 980, at p. 988).
[150]
As Binnie J. explained in Pacific
National, at para. 15, “[a]n enrichment may ‘connot[e] a tangible benefit’
. . ., or it can be relief from a ‘negative’, such as saving the
defendant from an expense he or she would otherwise have been required
to make” (emphasis in original).
[151]
Following this Court’s decision in Peter
v. Beblow, the enrichment must correspond with a
deprivation from the plaintiff. While the test for unjust enrichment is
typically articulated as having three elements, it is important to recognize
that the enrichment and detriment elements are the same thing from different
perspectives. As Dickson C.J. suggested in Sorochan v. Sorochan, [1986]
2 S.C.R. 38, cited by Cory J. in his concurring reasons in Peter v. Beblow,
at p. 1012, the enrichment and the detriment are “essentially two sides of the
same coin”.
[152]
The “straightforward economic approach”, as
described in Pacific National, to enrichment and detriment, is properly
understood to connote a transfer of wealth from the plaintiff to the defendant
(para. 20). As the purpose of the doctrine is to reverse unjust transfers, it
must first be determined whether wealth has moved from the plaintiff to the
defendant.
[153]
Accordingly, the first inquiry is not whether
the government was somehow enriched or benefitted by amortizing or removing the
surpluses in the Superannuation Accounts. Rather, the question is whether the
government was enriched at the appellants’ expense. Even if it could be shown that the government
benefited in some way by reducing the stated financial obligations of Canada,
it would not assist the appellants unless the gain corresponded to the
appellants’ loss.
[154]
As the Superannuation Accounts are mere
accounting records, and do not contain assets in which the appellants have an
interest, no enrichment and corresponding deprivation can be found in either
(1) the government’s decision prior to April 1, 2000 to amortize the surpluses
for accounting purposes under the FAA , or (2) Parliament’s decision to
enact Bill C-78 to require the debiting of a portion of the surplus directly
from the Accounts.
[155]
The Court of Appeal found that there was no
enrichment because “whatever benefit there was to such actions enured to all
Canadian taxpayers” (para. 106). I do not understand the nature of the inquiry
in the same way. The enrichment and corresponding deprivation elements ask
whether there was a transfer
of wealth from the plaintiff to the defendant. The fact that the defendant is
a public body is irrelevant to whether such a transfer of wealth took place.
Indeed, this reasoning would
have the effect of insulating the government from any claim for unjust
enrichment.
[156]
The Court of Appeal indicated that there might
have been a deprivation because the government’s actions “were detrimental to
plan members if for no other reason than the fact that those actions apparently
led to increases in plan member contribution rates” (para. 107). As I observed
in connection with the issue of whether the Superannuation Accounts contained
assets, the evidence does not support such an alleged deprivation.
[157]
Further, if the increase in contribution rates
did constitute a deprivation, the corresponding enrichment could only be the
additional deductions taken from employee pay cheques following the rate hikes,
and not the amount of the surpluses amortized and removed. But the appellants
have sought a declaration that they have an equitable interest in the balances
in the Superannuation Accounts as at March 31, 2000, and not the return of the
increased contributions after Bill C-78 came into force. Accordingly, on the
argument that increased contribution rates constituted a deprivation, there is
no link between the alleged deprivation and the property right they seek, the
return of the amortized surplus and subsequently debited surplus.
[158]
I conclude that there
was no enrichment and corresponding deprivation, and that the appellants have
not established a prima facie case of unjust enrichment. The third
branch of the test for unjust enrichment, the absence of a juristic reason for
the enrichment, need not be analyzed.
D. Did Bill C-78 Authorize the
Government to Debit the Actuarial Surpluses in the Superannuation Accounts?
[159]
The courts below ruled that any interest Plan
members had in the balances and surpluses in the Superannuation Accounts was
extinguished by Bill C-78. The appellants have argued that Bill C-78 did not
disclose an explicit intention to expropriate their interest, on the basis of
the presumption against expropriation without compensation in statutory interpretation
(R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008),
at pp. 478-82).
[160]
In Pacific National Investments Ltd. v.
Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, this Court affirmed the
principle that “potentially
confiscatory legislation ought to be construed cautiously so as not to strip
individuals of their rights without the legislation being clear as to this
intent” (para. 26). In order to confiscate an interest, Parliament must
“express [it]self extremely clearly where there is an intention to expropriate
or confiscate without compensation” (para. 26).
[161]
I have concluded that the courts below did not
err in determining that the Plan members have no equitable interest in the
surpluses in the Superannuation Accounts. Bill C-78 thus could not have
expropriated the Plan members’ property. Further, I would agree with the courts below that ss. 44(9) to 44(13) of the PSSA are
unambiguous in establishing that the Minister may debit any actuarial
surplus and must debit all amounts exceeding 110 percent of the
estimated liability under the Plans.
[162]
Moreover, it is
“extremely clea[r]” that Parliament did not intend any compensation to be given
to the Plan members for these debits, whether or not this constituted expropriation.
It would be absurd to read Bill C-78 as requiring the government to debit
excess amounts and then compensate the Plan members for the amounts debited.
Such an interpretation would be to convert the relevant provisions of Bill C-78
into a distribution mechanism — where the surpluses would be reduced and the
Plan members would receive some form of compensation in lieu of having
surpluses in the Accounts — which was quite clearly not Parliament’s intent.
If ss. 44(9) to 44(13) amount to confiscatory legislation, the intention
was to confiscate without compensation.
[163]
The corresponding
amendments to the CFSA (s. 55(9) to (13) ) and the RCMPSA (s. 29(9) to (13) )
are to the same effect, and are equally clear.
VI.
Conclusion
[164]
The Superannuation
Accounts are legislated records and do not contain assets in which the
appellants have a legal or equitable interest. The Plan members’ interests are
limited to their interest in the defined benefits to which they are entitled
under the Plans. The government was not under a fiduciary obligation to the
Plan members, nor was it unjustly enriched by the amortization and removal of
the pension surpluses. Finally, the Plan members had no legal or equitable
interest in the actuarial surplus reflected in the Superannuation Accounts to
be expropriated by Bill C-78.
[165]
I would dismiss the
appeal with costs.
APPENDIX
Public Service Labour Relations Act,
S.C. 2003, c. 22
2. (1) The following definitions apply in this Act.
. . .
“employee”,
except in Part 2, means a person employed in the public service, other than
(a) a
person appointed by the Governor in Council under an Act of Parliament to a
statutory position described in that Act;
(b) a
person locally engaged outside Canada;
(c) a
person not ordinarily required to work more than one third of the normal period
for persons doing similar work;
(d) a
person who is a member or special constable of the Royal Canadian Mounted
Police or who is employed by that force under terms and conditions
substantially the same as those of one of its members;
(e) a
person employed in the Canadian Security Intelligence Service who does not
perform duties of a clerical or secretarial nature;
(f) a
person employed on a casual basis;
(g) a
person employed on a term basis, unless the term of employment is for a period
of three months or more or the person has been so employed for a period of
three months or more;
(h) a
person employed by the Board;
(i) a
person who occupies a managerial or confidential position; or
(j) a
person who is employed under a program designated by the employer as a student
employment program.
. . .
“public
service”, except in Part 3, means the several positions in or under
(a) the
departments named in Schedule I to the Financial Administration Act ;
(b) the
other portions of the federal public administration named in Schedule IV to
that Act; and
(c) the
separate agencies named in Schedule V to that Act.
. . .
113. A collective agreement may not, directly or indirectly, alter
or eliminate any existing term or condition of employment or establish any new
term or condition of employment if
(a) doing
so would require the enactment or amendment of any legislation by Parliament,
except for the purpose of appropriating money required for the implementation
of the term or condition; or
(b) the
term or condition is one that has been or may be established under the Public
Service Employment Act , the Public Service Superannuation Act or the
Government Employees Compensation Act .
Public
Service Superannuation Act, R.S.C. 1985, c. P-36
4. (1) Subject to this Part, an annuity or other benefit
specified in this Part shall be paid to or in respect of every person who,
being required to contribute to the Superannuation Account or the Public
Service Pension Fund in accordance with this Part, dies or ceases to be
employed in the public service, which annuity or other benefit shall, subject
to this Part, be based on the number of years of pensionable service to the
credit of that person.
(2) The
Superannuation Account, established in the accounts of Canada pursuant to the Superannuation
Act, is hereby continued.
. . .
43. (1) All amounts required for the payment of benefits for which
this Part and Part III make provision shall be paid out of the Superannuation
Account if the benefits are payable in respect of pensionable service to the
credit of a contributor before April 1, 2000.
(2) The
amounts deposited in the Public Service Superannuation Investment Fund under
subsection 44.1(2) shall be transferred to the Public Sector Pension Investment
Board within the meaning of the Public Sector Pension Investment Board Act
to be dealt with in accordance with that Act.
(3) If
there are insufficient amounts in the Superannuation Account to pay all the
benefits referred to in subsection (1), the amounts required for the payment of
those benefits shall be charged to the Public Service Superannuation Investment
Fund and paid out of the assets of the Public Sector Pension Investment Board.
44. (1) There shall be credited to the Superannuation Account in
each fiscal year
(a) [Repealed,
1999, c. 34, s. 95]
(b) in
respect of every month, such amount in relation to the total amount paid into
the Account during the preceding month by way of contributions in respect of
past service as is determined by the Minister; and
(c) an
amount representing interest on the balance from time to time to the credit of
the Account, calculated in such manner and at such rates and credited at such
times as the regulations provide, but the rate for any quarter in a fiscal year
shall be at least equal to the rate that would be determined for that quarter
using the method set out in section 46 of the Public Service Superannuation
Regulations, as that section read on March 31, 1991.
(2) to
(5) [Repealed, 1999, c. 34, s. 95]
(6) Following
the laying before Parliament of any actuarial valuation report pursuant to
section 45 that relates to the state of the Superannuation Account and the
Public Service Superannuation Investment Fund, there shall be credited to the
Account, at the time and in the manner set out in subsection (7), the amount
that in the opinion of the Minister will, at the end of the fifteenth fiscal
year following the tabling of that report or at the end of the shorter period
that the Minister may determine, together with the amount that the Minister
estimates will be to the credit of the Account and the Public Service
Superannuation Investment Fund at that time, meet the cost of the benefits
payable under this Part and Part III in respect of pensionable service that is
to the credit of contributors before April 1, 2000.
(7) Subject
to subsection (8), the amount required to be credited to the Superannuation
Account under subsection (6) shall be divided into equal annual instalments and
the instalments shall be credited to the Account over a period of fifteen
years, or such shorter period as the Minister may determine, with the first
such instalment to be credited in the fiscal year in which the actuarial
valuation report is laid before Parliament.
(8) When
a subsequent actuarial valuation report is laid before Parliament before the
end of the period applicable under subsection (7), the instalments remaining to
be credited in that period may be adjusted to reflect the amount that is
estimated by the Minister, at the time that subsequent report is laid before
Parliament, to be the amount that will, together with the amount that the
Minister estimates will be to the credit of the Superannuation Account and the
Public Service Superannuation Investment Fund at the end of that period, meet
the cost of the benefits payable under this Part and Part III in respect of
pensionable service that is to the credit of contributors before April 1, 2000.
(9) Following
the laying before Parliament of any actuarial valuation report pursuant to
section 45 that relates to the state of the Superannuation Account and the
Public Service Superannuation Investment Fund, there may be debited from the
Account, at the time and in the manner set out in subsection (11), an amount
that in the opinion of the Minister exceeds the amount that the Minister
estimates, based on the report, will be required to be to the credit of the
Account and the Public Service Superannuation Investment Fund at the end of the
fifteenth fiscal year following the tabling of that report or at the end of a
shorter period that the Minister may determine, in order to meet the cost of
the benefits payable under this Part and Part III in respect of pensionable
service that is to the credit of contributors before April 1, 2000.
(10) If
the total of the amounts in the Account and in the Fund referred to in
subsection (9) exceeds, following the laying of the report referred to in that
subsection, the maximum amount referred to in subsection (13), there shall be
debited from the Account, at the time and in the manner set out in subsection
(11), the amount of the excess.
(11) Subject
to subsection (12), the amount that may be debited under subsection (9) and the
amount that must be debited under subsection (10) shall be debited in annual
instalments over a period of fifteen years, or a shorter period that the
Minister may determine, with the first such instalment to be debited in the
fiscal year in which the actuarial valuation report is laid before Parliament.
(12) When
a subsequent actuarial valuation report is laid before Parliament before the
end of the period applicable under subsection (11), the instalments remaining
to be debited in that period may be adjusted to reflect the amount that is
estimated by the Minister, at the time that subsequent report is laid before
Parliament, to be the amount that will, together with the amount that the
Minister estimates will be to the credit of the Superannuation Account and the
Public Service Superannuation Investment Fund at the end of that period, meet
the cost of the benefits payable under this Part and Part III in respect of pensionable
service that is to the credit of contributors before April 1, 2000.
(13) At
the end of the period, the total of the amounts that are to the credit of the
Superannuation Account and the Public Service Superannuation Investment Fund
must not exceed one hundred and ten percent of the amount that the Minister
estimates is required to meet the cost of the benefits payable under this Part
and Part III in respect of pensionable service that is to the credit of
contributors before April 1, 2000.
(14) The
costs of the administration of this Act, as determined by the Treasury Board,
with respect to benefits payable under this Act in respect of pensionable
service that is to the credit of contributors before April 1, 2000, shall be
paid out of the Superannuation Account.
Public Sector Pension Investment Board Act, S.C. 1999, c. 34
4. (1) The objects of the Board are
(a) to
manage amounts that are transferred to it under subsections 54(2) and 55.2(5)
and section 59.4 of the Canadian Forces Superannuation Act , subsections
43(2) and 44.2(5) of the Public Service Superannuation Act and
subsections 28(2) and 29.2(5) of the Royal Canadian Mounted Police
Superannuation Act in the best interests of the contributors and
beneficiaries under those Acts; and
(b) to
invest its assets with a view to achieving a maximum rate of return, without
undue risk of loss, having regard to the funding, policies and requirements of
the pension plans established under the Acts referred to in paragraph (a)
and the ability of those plans to meet their financial obligations.
(2) The
costs associated with the operation of the Board shall be paid out of the
funds.
(3) The
Minister shall determine from which funds the costs shall be paid, but no
amount shall be taken out of the Canadian Forces Pension Fund or the Canadian
Forces Superannuation Investment Fund — or, if regulations are made under
section 59.1 of the Canadian Forces Superannuation Act , from the fund
referred to in section 59.3 of that Act — without consulting the Minister of
National Defence, or from the Royal Canadian Mounted Police Pension Fund or the
Royal Canadian Mounted Police Superannuation Investment Fund without consulting
the Minister of Public Safety and Emergency Preparedness.
Public Pensions Reporting Act, R.S.C.
1985, c. 13 (2nd Supp .)
7. Where, in the review of a pension plan, actuarial assumptions
or methods are used that differ from those used for the immediately preceding
review in respect of which a cost certificate was filed pursuant to section 5
and such different assumptions or methods result
(a) in
a decrease in the going concern unfunded actuarial liability but do not result
in an excess of going concern assets over the going concern actuarial
liabilities, the outstanding special payments shall be recalculated by
multiplying each of the amounts thereof by a factor having, as numerator, the
going concern unfunded actuarial liability and, as denominator, the sum of the
present values of the previously determined special payments where the present
values are calculated on the basis of the actuarial assumptions used at the
current review; or
(b) in
an excess of the going concern assets over the going concern actuarial
liabilities, the valuation report referred to in section 6 shall include a
statement as to the method, if any, proposed for the disposition of such
excess.
8. (1) The Minister shall cause a certification of the assets of
a pension plan established under the Canadian Forces Superannuation Act ,
. . . the Public Service Superannuation Act , [and] the Royal Canadian
Mounted Police Superannuation Act . . . to be made and a report thereof to
be filed with the Minister at the same time as a cost certificate is filed
pursuant to subsection 5(1) .
(2) The
certification and the assets report referred to in subsection (1) shall be made
by the Comptroller General of Canada.
9. (1) The Minister shall lay before Parliament any cost
certificate, valuation report or assets report filed with the Minister pursuant
to this Act, within thirty sitting days of their being filed if Parliament is
then sitting, or if Parliament is not then sitting, on any of the first thirty
days thereafter that Parliament is sitting.
Financial Administration Act, R.S.C.
1985, c. F-11
2. In this Act,
. . .
“Consolidated
Revenue Fund” means the aggregate of all public moneys that are on deposit at
the credit of the Receiver General;
. . .
“money”
includes negotiable instruments;
“negotiable
instrument” includes any cheque, draft, traveller’s cheque, bill of exchange,
postal note, money order, postal remittance and any other similar instrument;
. . .
“public
money” means all money belonging to Canada received or collected by the
Receiver General or any other public officer in his official capacity or any
person authorized to receive or collect such money, and includes
(a) duties
and revenues of Canada,
(b) money
borrowed by Canada or received through the issue or sale of securities,
(c) money
received or collected for or on behalf of Canada, and
(d) all
money that is paid to or received or collected by a public officer under or
pursuant to any Act, trust, treaty, undertaking or contract, and is to be
disbursed for a purpose specified in or pursuant to that Act, trust, treaty,
undertaking or contract;
. . .
17. (1) Subject to this Part, all public money shall be deposited
to the credit of the Receiver General.
(2) The
Receiver General may establish, in the name of the Receiver General, accounts
for the deposit of public money with
(a) any
member of the Canadian Payments Association;
(b) any
local cooperative credit society that is a member of a central cooperative
credit society having membership in the Canadian Payments Association;
(c) any
fiscal agent that the Minister may designate; and
(d) any
financial institution outside Canada that the Minister may designate.
. . .
(4) Subject
to any regulations made under subsection (5), every person employed in the
collection or management of, or charged with the receipt of, public money and
every other person who collects or receives public money shall pay that money
to the credit of the Receiver General.
. . .
63. (1) Subject to regulations of the Treasury Board, the Receiver
General shall cause accounts to be kept in such manner as to show
(a) the
expenditures made under each appropriation;
(b) the
revenues of Canada; and
(c) the
other payments into and out of the Consolidated Revenue Fund.
(2) The
Receiver General shall cause accounts to be kept to show such of the assets and
direct and contingent liabilities of Canada and shall establish such reserves
with respect to the assets and liabilities as, in the opinion of the President
of the Treasury Board and the Minister, are required to present fairly the
financial position of Canada.
(3) The
accounts of Canada shall be kept in the currency of Canada.
64. (1) A report, called the Public Accounts, shall be prepared by
the Receiver General for each fiscal year and shall be laid before the House of
Commons by the President of the Treasury Board on or before December 31 next
following the end of that fiscal year or, if the House of Commons is not then
sitting, on any of the first fifteen days next thereafter that the House of
Commons is sitting.
(2) The
Public Accounts shall be in such form as the President of the Treasury Board
and the Minister may direct, and shall include
(a) a
statement of
(i) the
financial transactions of the fiscal year,
(ii) the
expenditures and revenues of Canada for the fiscal year, and
(iii) such
of the assets and liabilities of Canada as, in the opinion of the President of
the Treasury Board and the Minister, are required to show the financial
position of Canada as at the termination of the fiscal year;
(b) the
contingent liabilities of Canada;
(c) the
opinion of the Auditor General of Canada as required under section 6 of the Auditor
General Act; and
(d) such
other accounts and information relating to the fiscal year as are deemed
necessary by the President of the Treasury Board and the Minister to present
fairly the financial transactions and the financial position of Canada or as
are required by this Act or any other Act of Parliament to be shown in the
Public Accounts.
Appeal
dismissed with costs.
Solicitors
for the appellants the Professional Institute of the Public Service of Canada
et al.: Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto.
Solicitors
for the appellants the Public Service Alliance of Canada, the Armed Forces
Pensioners’/Annuitants’ Association of Canada et al.: Raven,
Cameron, Ballantyne & Yazbeck, Ottawa.
Solicitor
for the respondent: Attorney General of Canada, Toronto.
Solicitor for the
intervener: Attorney General of British Columbia, Victoria.