Date: 20120628
Docket: A-290-11
Citation: 2012 FCA
197
CORAM: DAWSON J.A.
GAUTHIER J.A.
STRATAS J.A.
BETWEEN:
SANDRA BUSCHAU, SHARON M.
PARENT, ALBERT POY, DAVID ALLEN,
EILEEN ANDERSON, CHRISTINE ASH, FREDERICK
SCOTT ATKINSON,
JASPAL BADYAL, MARY BALFRY, CAROLYN
LOUISE BARRY, RAJ
BHAMBER, EVELYN BISHOP, DEBORAH LOUISE
BISSONNETTE, GEORGE BOSHKO, COLLEEN BURKE, BRIAN CARROLL, LYNN CASSIDY,
FLORENCE K. COLBECK, PETER COLISTRO, ERNEST A. COTTLE, KEN DANN, DONNA DE
FREITAS, TERRY DEWELL, KATRIN DOLEMEYER, ELIZABETH ENGEL,
KAREN ENGLESON, GEORGE FIERHELLER, JOAN
FISHER, GWEN FORD, DON
R. FRASER, MABEL GARWOOD, CHERYL GERVAIS,
ROSE GIBB, ROGER
GILODO, MURRAY GJERNES, DAPHNE GOODE, KAREN L. GOULD,
PETER
JAMES HADIKIN, MARIAN HEIBLOEM-REEVES,
THOMAS HOBLEY, JOHN
IANNANTUONI, VINCENT A. IANNANTUONI, RON
INGLIS, MEHROON
JANMOHAMED, MICHAEL J. JERVIS, MARLYN
KELLNER, KAREN KILBA,
DOUGLAS JAMES KILGOUR, YOSHINORI KOGA,
MARTIN KOSULJANDIC,
URSULA M. KREIGER, WING LEE, ROBERT
LESLIE, THOMAS A.
LEWTHWAITE, HOLLY LI, DAVID LIDDELL, RITA
LIM, BETTY C. LLOYD, ROB
LOWRIE, CHE-CHUNG MA, JENNIFER MACDONALD,
ROBERT JOHN
MACLEOD, SHERRY M. MADDEN, TOM MAKORTOFF,
FATIMA MANJI, EDWARD
B. MASON, GLENN A. MCFARLANE, ONAGH
METCALFE, DOROTHY
MITCHELL, SHIRLEY C.T. MUI, WILLIAM NEAL,
KATHERINE SHEILA NIMMO,
GLORIA PAIEMENT, LYNDA PASACRETA, BARBARA
PEAKE, VERA PICCINI, INEZ PINKERTON, DAVE PODWORNY, DOUG PONTIFEX, VICTORIA
PROCHASKA, FRANK RADELJA, GALE RAUK, RUTH ROBERTS, ANN LOUISE RODGERS, CIFFORD
JAMES ROE, PAMELA MAMON ROE, DELORES ROSE, SABRINA ROZA-PEREIRA, SANDRA
RYBCHINSKY, KENNETH T. SALMOND, MARIE SCHNEIDER, ALEXANDER C. SCOTT, INDERJEET
SHARMA, HUGH DONALD SHIEL, MICHAEL SHIRLEY, GEORGE ALLEN SHORT, GLENDA
SIMONCIONI, NORM SMALLWOOD, GILLES A. ST. DENNIS, GERI STEPHEN, GRACE ISOBEL
STONE, MARI TSANG, CARMEN TUVERA, SHEERA WAISMAN, MARGARET WATSON, GERTRUDE
WESTLAKE, ROBERT E. WHITE, PATRICIA JANE WHITEHEAD, AILEEN WILSON, ELAINE
WIRTZ, JOE WUYCHUK, ZLATKA YOUNG
Appellants
and
ROGERS COMMUNICATIONS INCORPORATED
Respondent
Heard at Vancouver, British
Columbia, on June 20, 2012.
Judgment delivered at Ottawa,
Ontario, on June 28, 2012.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED
IN BY:
GAUTHIER J.A.
STRATAS J.A.
Date: 20120628
Docket: A-290-11
Citation: 2012 FCA 197
CORAM: DAWSON J.A.
GAUTHIER J.A.
STRATAS
J.A.
BETWEEN:
SANDRA BUSCHAU, SHARON M. PARENT, ALBERT
POY, DAVID ALLEN,
EILEEN ANDERSON, CHRISTINE ASH, FREDERICK
SCOTT ATKINSON,
JASPAL BADYAL, MARY BALFRY, CAROLYN
LOUISE BARRY, RAJ
BHAMBER, EVELYN BISHOP, DEBORAH LOUISE
BISSONNETTE, GEORGE BOSHKO, COLLEEN BURKE, BRIAN CARROLL, LYNN CASSIDY,
FLORENCE K. COLBECK, PETER COLISTRO, ERNEST A. COTTLE, KEN DANN, DONNA DE
FREITAS, TERRY DEWELL, KATRIN DOLEMEYER, ELIZABETH ENGEL,
KAREN ENGLESON, GEORGE FIERHELLER, JOAN
FISHER, GWEN FORD, DON
R. FRASER, MABEL GARWOOD, CHERYL GERVAIS,
ROSE GIBB, ROGER
GILODO, MURRAY GJERNES, DAPHNE GOODE, KAREN L. GOULD,
PETER
JAMES HADIKIN, MARIAN HEIBLOEM-REEVES,
THOMAS HOBLEY, JOHN
IANNANTUONI, VINCENT A. IANNANTUONI, RON
INGLIS, MEHROON
JANMOHAMED, MICHAEL J. JERVIS, MARLYN
KELLNER, KAREN KILBA,
DOUGLAS JAMES KILGOUR, YOSHINORI KOGA,
MARTIN KOSULJANDIC,
URSULA M. KREIGER, WING LEE, ROBERT
LESLIE, THOMAS A.
LEWTHWAITE, HOLLY LI, DAVID LIDDELL, RITA
LIM, BETTY C. LLOYD, ROB
LOWRIE, CHE-CHUNG MA, JENNIFER MACDONALD,
ROBERT JOHN
MACLEOD, SHERRY M. MADDEN, TOM MAKORTOFF,
FATIMA MANJI, EDWARD
B. MASON, GLENN A. MCFARLANE, ONAGH
METCALFE, DOROTHY
MITCHELL, SHIRLEY C.T. MUI, WILLIAM NEAL,
KATHERINE SHEILA NIMMO,
GLORIA PAIEMENT, LYNDA PASACRETA, BARBARA
PEAKE, VERA PICCINI, INEZ PINKERTON, DAVE PODWORNY, DOUG PONTIFEX, VICTORIA
PROCHASKA, FRANK RADELJA, GALE RAUK, RUTH ROBERTS, ANN LOUISE RODGERS, CIFFORD
JAMES ROE, PAMELA MAMON ROE, DELORES ROSE, SABRINA ROZA-PEREIRA, SANDRA
RYBCHINSKY, KENNETH T. SALMOND, MARIE SCHNEIDER, ALEXANDER C. SCOTT, INDERJEET
SHARMA, HUGH DONALD SHIEL, MICHAEL SHIRLEY, GEORGE ALLEN SHORT, GLENDA
SIMONCIONI, NORM SMALLWOOD, GILLES A. ST. DENNIS, GERI STEPHEN, GRACE ISOBEL STONE,
MARI TSANG, CARMEN TUVERA, SHEERA WAISMAN, MARGARET WATSON, GERTRUDE WESTLAKE,
ROBERT E. WHITE, PATRICIA JANE WHITEHEAD, AILEEN WILSON, ELAINE WIRTZ, JOE
WUYCHUK, ZLATKA YOUNG
Appellants
and
ROGERS COMMUNICATIONS INCORPORATED
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
This
is an appeal from a decision of the Federal Court. In thorough and thoughtful
reasons (2011 FC 911, 337 D.L.R. (4th) 467) the Federal Court
dismissed an application for judicial review of a decision, made on November 4,
2010, by the Office of the Superintendent of Financial Institutions Canada
(Superintendent) not to give fresh consideration to eight issues raised by the
appellants.
Factual Background
[2]
As
noted by the Federal Court Judge, the parties have engaged in a long-running
dispute over an actuarial surplus accumulated in a defined benefit employee
pension plan. The dispute has been adjudicated upon by judges of the Supreme
Court of British Colombia, the British Colombia Court of Appeal, the Supreme
Court of Canada, the Federal Court and this Court. At the commencement of the
hearing we were advised by counsel for the appellants that we were the 27th,
28th and 29th judges required to rule on this dispute.
[3]
The
facts are carefully set out in the decision of the Federal Court. For the
purpose of this appeal it is sufficient to note the following:
1.
The
appellants are members of the Premier Pension Plan (Plan) which has been
administered by the respondent since it purchased the appellants’ former
employer, Premier Communications Ltd., in 1980.
2.
Following
litigation between the parties in the courts of British Columbia, in 2006 the
Supreme Court of Canada ruled in Buschau v. Rogers Communications Inc.,
2006 SCC 28, [2006] 1 S.C.R. 973, that the appellants were not permitted to
terminate the pension fund trust under the rule in Saunders v. Vautier
because provisions in the Pension Benefits Standards Act, 1985, R.S.C.
1985, c. 32 (2nd Supp.) (Act) displaced the common law rule (Supreme
Court reasons paragraphs 26 and 28). The Supreme Court also found that the
Superintendent was best placed to determine whether the Plan had been
terminated under the Act, or whether it should be terminated under the Act (Supreme
Court reasons paragraphs 47-57).
3.
Following
this decision, the appellants requested that the Superintendent terminate the
Plan or declare it already terminated. The respondent sought approval from the
Superintendent of amendments which would open the Plan to new employees.
4.
On
April 27, 2007, the Superintendent decided both requests. The Superintendent
approved the amendments sought by the respondent, and refused to terminate the
Plan or declare it to have been terminated.
5.
The
appellants sought judicial review of the decision of the Superintendent. While
initially successful in the Federal Court (2008 FC 1023, [2008] F.C.J. No.
1283), on appeal this Court set aside the decision of the Federal Court (2009
FCA 258, 393 N.R. 337) thus restoring the decision of the Superintendent.
6.
Thereafter,
the Supreme Court refused leave to appeal from the decision of this Court
([2009] S.C.C.A. No. 457).
7.
On
June 30, 2010, the appellants submitted eight questions to the Superintendent
which were said to have not been addressed by the Superintendent in her earlier
decision or which were said to have arisen since that decision. The questions
are set out by the Judge at paragraph 37 of her reasons.
8.
The
decision of the Superintendent not to give fresh consideration to a number of
issues is fully described at paragraphs 39 to 45 of the Judge’s reasons. This
was the decision which was the subject of the application for judicial review
before the Federal Court.
The Decision of the
Federal Court
[4]
For
the purpose of the issues raised on this appeal, the decision of the Federal
Court may be summarized as follows.
[5]
The
Judge began by describing some of the key terms of the Plan: (1) the respondent
could amend the Plan; (2) Plan assets could only be used for the exclusive
benefit of Plan members; (3) the Plan permitted, but did not require, that
an actuarial surplus be used to increase members’ benefits; and (4) an actual
surplus realized on termination of the Plan was to be “distributed […] among
the remaining Members”. She then reviewed the many previous court decisions
rendered in the context of the on-going dispute and summarized the
Superintendent’s 2010 decision.
[6]
The
Judge went on to address the eight questions the appellants had put before the
Superintendent. She found the Superintendent’s conclusion that the appellants’
first four questions had previously been decided was reasonable. She then
considered whether the Superintendent had jurisdiction to reconsider a prior
decision.
[7]
Since
the Act neither permits nor prohibits reconsideration of a past decision and
since the doctrine of issue estoppel applies to decisions of administrative
tribunals, the Judge concluded that the Superintendent could exercise
discretion under that doctrine to reopen a previously decided issue. The Judge
then applied the doctrine of issue estoppel to the facts before her and found
that the three pre-conditions of issue estoppel were met. In her view, the only
reasonable conclusion open to the Superintendent was that the appellants were
estopped from re-litigating questions 1 to 4.
[8]
At
paragraph 84 of her reasons, the Judge wrote:
In
the circumstances of this case, given the Superintendent’s reasonable
determination that the first four questions raised by the applicants were the
same questions as had previously been determined, the only reasonable course of
action available was to find that the applicants were estopped from raising the
issues again. The Superintendent’s 2007 Decision had been judicially reviewed
and appealed up to the Federal Court of Appeal. It was only when the Supreme
Court of Canada refused to grant leave that the applicants came back to the
Superintendent with their re-formulations of, substantially, the same
questions. This is tantamount to an abuse of process. This litigation has been
ongoing, in one form or another, for over 15 years. The public interest in
finality is strong. In these circumstances, a determination that issue estoppel
applies to prevent the applicants from re-raising questions one to four was the
only decision available to the Superintendent within the range of possible,
acceptable outcomes defensible in respect of the facts and law.
[9]
The
Judge then considered the appellants’ submission that the Supreme Court’s
decision in Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R.
678 had changed the law so that she should exercise her discretion not to apply
issue estoppel. She concluded that Nolan did not “change the law in any
way that is relevant to the questions at issue here.” Nolan simply
re-iterated the Supreme Court’s statements in Buschau.
[10]
It
followed that while the Superintendent possessed discretion to reopen a past
decision, pursuant to the doctrine of issue estoppel the Superintendent had not
erred by refusing to reconsider the appellants’ previously decided questions.
The Issues on Appeal
[11]
The
appellants frame the issues on this appeal to be:
1.
Are
the appellants precluded by the doctrine of issue estoppel from relitigating
the issue of their “exclusive” entitlement to the surplus in the Plan on
termination of the plan, and the issue of whether Rogers is entitled
to use the said surplus to cover its contribution obligations for any new
employees it adds to the Plan?
2.
If
the appellants are entitled to relitigate the above issues “and the court
agrees that the original members (and they alone) are solely and exclusively
entitled to the surplus on termination and Rogers cannot use the surplus for
its contribution obligations for the new employees, should the judgment of [the
Federal Court] herein be restored and the case sent back to the Superintendent
to reconsider the remedy of termination or should this court exercise its power
to do what the Superintendent should have done and terminate the plan”?
[12]
With
respect to the first issue, the appellants do not deny the applicability of the
doctrine of issue estoppel. Rather, they submit that there are special
circumstances which should permit them to reopen the questions decided against
them previously by this Court. The special circumstances are said to be that:
1.
The
previous decision of this Court was made “in ignorance of the binding S.C.C.
decision in Nolan and was therefore made per incuriam”;
2.
This
Court “itself left considerable uncertainty as to what conclusions it reached
regarding Rogers’ right to ‘get at the surplus’”; and,
3.
This
Court “appeared to take the unprecedented step of following the minority rather
than the majority opinion in the S.C.C.”.
The Procedural Motions
[13]
Two
interlocutory motions were presented at the hearing of the appeal. In the
first, the appellants moved to introduce new evidence as well as evidence the
Federal Court Judge refused to admit. This motion was opposed by the
respondent. In the second, the respondent sought leave to file an affidavit in
opposition to the appellants’ motion and, if the appellants were given leave to
file new evidence, the respondent sought leave to file the same affidavit as
evidence on the appeal.
[14]
Judgment
was reserved on these motions. In this portion of the reasons I now deal with
these interlocutory motions.
[15]
As
explained above, this is an appeal from a decision of the Federal Court sitting
in judicial review of a decision of the Superintendent. Judicial review is
normally conducted on the basis of the record before the decision-maker.
Additional evidence may be admitted on issues of procedural fairness and
jurisdiction (Ontario Assn. of Architects v. Assn. of Architectural
Technologists of Ontario, 2002 FCA 218, [2003] 1 F.C. 331, at paragraph
30). The evidence the appellants seek to adduce does not go to issues of
jurisdiction or procedural fairness and no basis has been established for
supplementing the tribunal record.
[16]
While
this, by itself, is a sufficient ground on which to dismiss the appellants’
motion, I also find that the evidence the appellants seek to adduce is not
relevant to the issue of whether the doctrine of issue estoppel applies
to the questions raised by the appellants. Moreover, to the extent the
appellants seek admission of evidence the Judge refused to admit, it is clearly
not fresh evidence.
[17]
I
would therefore dismiss the appellants’ interlocutory motion. As the
substantive relief sought in the respondent’s motion was contingent upon the
appellants’ motion being successful, I would dismiss this motion as well.
Consideration of the
Issues Raised on Appeal
[18]
As
noted above, on this appeal the appellants do not dispute that the three
pre-conditions to the operation of issue estoppel are present. Rather, they
argue that special circumstances should permit them to reopen issues previously
decided against them by this Court.
[19]
The
main point advanced by the appellants is that the prior decision of this Court
must be deemed to have been overruled by the decision of the Supreme Court of
Canada in Nolan, (a decision released approximately one month prior to
the issuance of the decision of this Court).
[20]
The
Judge dealt with this submission at paragraphs 85 to 88 of her reasons:
85. The applicants
argue, however, that the applicable law has changed since the Superintendent’s
2007 Decision in such a way that the Superintendent was required, in her 2010
Decision, to exercise her discretion not to apply issue estoppel. While it is
true that a change of law may warrant dispensing with issue estoppel in certain
circumstances (Hockin v Bank of
British Columbia (1995), 3 BCLR (3d) 193, 123 DLR (4th) 538
(CA)), I do not find that there has been a change of law in the current case.
Neither the decision of the Supreme Court of Canada in Nolan, nor the decision in Burke, change the law in
any way that is relevant to the questions at issue here.
86. The
majority in Nolan, above, considered, among other things,
the question of whether an employer could take contribution holidays with
respect to a defined contribution component of a pension plan based on an
actuarial surplus that had accumulated in a defined benefit component. The
members of the defined benefit component analogized their situation to the
situation at issue in Buschau III. They pointed to
the fact that the majority in Buschau III had
indicated that re-opening the Premier Plan to new members, and allowing
contribution holidays in respect of those new members, would be “problematic”.
The Court found this analogy to be unconvincing. It indicated that the
circumstances in Buschau III were different and
proceeded to outline those circumstances. It explained how the respondent had
unsuccessfully attempted to merge the Premier Plan into the Rogers plan and how the
BCCA in Buschau II had found that re-opening the
plan to new members would be improper. It indicated, “Deschamps J.’s remark
about re-opening the plan being problematic was made in this context.”
87. Nolan only re-iterated what was already stated by the Supreme
Court in Buschau III, that it was “problematic” for
the respondent to re-open the Premier Plan, given the previous decisions of the
BC Courts. Neither the Court in Buschau III, nor the
Court in Nolan went beyond this - the question as to
whether the respondent was in fact entitled to re-open the Premier Plan
remained unanswered. The Superintendent did answer it, however, in her 2007
Decision and she found that re-opening the Premier Plan was acceptable based on
the plan's terms and the PBSA. The Federal Court of
Appeal, in Buschau IV, upheld that decision as being
reasonable.
88. Therefore,
as it relates to the applicants’ circumstances, the Nolan
decision contains nothing new and, as a result, the Superintendent cannot be
faulted for not addressing it in her decision.
[21]
In
my view, the Judge’s analysis is correct in law and there is no basis for our
intervention. Put at its simplest, in the passages relied upon by the
appellants in Nolan, the Supreme Court described what it had previously
decided in Buschau. Nothing was said that modified that earlier
decision. As such, Nolan cannot have overruled this Court’s decision in Buschau.
I note that this Court’s decision in Buschau and the Supreme Court’s
dismissal of the application for leave to appeal from that decision happened
after the Supreme Court’s decision in Nolan. Indeed, in their
leave application, the appellants submitted that Nolan changed this
Court’s decision in Buschau, and that this Court had erred by relying on
the minority decision of the Supreme Court in Buschau, but the Supreme
Court did not grant leave.
[22]
In
oral argument, counsel for the appellants acknowledged that the other two
grounds said to constitute special circumstances were “novel”. In my view,
alleged deficiencies or uncertainties in the reasons given in support of a
prior final decision cannot, as a matter of law, constitute special
circumstances so as to oust application of the doctrine of issue estoppel.
If this were so, there would be no finality to any decision. Any disappointed
litigant could point to something in the earlier reasons and assert this as a
ground for reopening the decision. That we are the 27th, 28th and 29th judges
to consider the appellants’ entitlement to an actuarial surplus shows the
importance and salutary nature of the principle of finality of litigation.
[23]
It
follows that the Judge made no error in finding that the appellants were not
entitled to relitigate the issues previously decided against them. It further
follows that it is not necessary to consider the appellants’ submissions on
remedy.
Conclusion and Costs
[24]
For
these reasons, I would dismiss the appeal with costs.
[25]
The
respondent seeks costs on a solicitor and client basis. It submits that this
appeal constitutes an abuse of process and that a strong statement must be made
by way of an award of solicitor and client costs.
[26]
I
am not convinced that an award of solicitor and client costs is justified on
the facts before us. Such costs are awarded only on rare occasions, for example
where a party has displayed reprehensible or scandalous conduct. In my view,
the appellants’ conduct cannot be so characterized.
[27]
I
am equally satisfied, however, that the appellants’ efforts to relitigate issues
that this Court has previously decided against them warrants an elevated order
of costs. For that reason, I would order that, if not agreed, costs be assessed
at the top of column V of the table to Tariff B of the Federal Courts Rules.
Postscript
[28]
After
the hearing we received unsolicited supplementary written submissions from the
appellant. These submissions concern one aspect of the issue of relitigation
and issues relating to costs. The respondent objects to the Court considering
them. The respondent’s objection is well-founded but, in any event, the
unsolicited submissions do not affect in any way the outcome or the reasons for
dismissing this appeal.
“Eleanor
R. Dawson”
“I
agree.
Johanne
Gauthier J.A.”
“I
agree.
David
Stratas J.A.”
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