Date:
20090909
Docket: A-453-08
Citation: 2009 FCA 258
CORAM: NOËL
J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
ROGERS COMMUNICATIONS INC.
Appellant
and
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
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
This
appeal is the latest instalment in a long running dispute between Rogers
Cablesystems Inc. (now Rogers Communications Inc.) (Rogers) and the employees
and former employees (the Employees) of a Vancouver cable company, Premier
Communications Ltd., (Premier), which Rogers
acquired in 1980. When it acquired Premier, Rogers also acquired the rights and obligations
of the employer under the pension plan (the Premier Plan or the Plan), which
Premier established for the benefit of its employees in 1974. Shortly after Rogers acquired Premier, it became
known that there was a significant actuarial surplus in the Plan. Rogers tried to appropriate that
surplus. The Employees claimed it as their own. Rogers and the Employees have
been fighting over that surplus ever since.
[2]
This
appeal arises from the decision of the Acting Superintendent of Financial Institutions
dated April 27, 2007 (the Decision), which approved amendments to the Plan to
revoke a merger of the Plan with other Rogers’ pension plans and to re-open the
Premier Plan to new members. The Acting Superintendent has since been appointed
Superintendent and so, I will refer to her as such.
[3]
The Superintendent
dismissed the Employees’ application to terminate the Plan and to distribute
the actuarial surplus. The Employees’ application for judicial
review of the Decision was allowed by O’Keefe J. of the Federal Court in a
decision reported as Buschau v. Canada (Attorney General) and Rogers
Communications Inc., 2008 FC 1023, [2008] F.C.J. No. 1283.Rogers now
appeals to this court from the decision of O’Keefe J. Quite apart from the
merits of the Decision itself, one of the major issues is the extent to which
the Superintendent’s discretion was limited by the decisions of the courts
which have considered the case in the course of the long and acrimonious
litigation involving this pension plan.
[4]
For the
reasons which follow, I would allow the appeal and set aside the order of the
Federal Court. I would award Rogers its costs in this Court and
in the Federal Court.
THE BACKGROUND
[5]
In order
to understand the context in which the Superintendent’s Decision was made, it
is necessary to review the history of this litigation in the courts of British Columbia and in the Supreme Court of
Canada.
[6]
The
following exposition of the material facts is taken from the reasons of
Bastarache J. (concurring) in the Supreme Court:
65
The
corporate predecessor of RCI [Rogers] established the Premier Pension Plan as a
non-contributory defined benefit plan in January 1974 by means of two
documents, a trust agreement and a plan document. Eventually, as a result of
corporate acquisitions and mergers, the Premier Plan was one of several pension
plans administered by RCI for the benefit of employees of RCI and its corporate
affiliates.
66 Membership in the Premier Plan was
compulsory for all full-time employees over the age of 25 having completed one
year of service. In 1984, RCI amended the Premier Plan to close it to employees
hired after July 1, 1984. The following year, RCI withdrew $968,285 from the
Plan surplus and began taking contribution holidays on the recommendation of
their actuary, T.I. Benefits. In 1992, RCI merged the Premier Plan with four
other RCI plans by amending the plan documents to create a common plan text. No
steps were taken to amend the separate Premier Trust agreement or formally
merge the Premier Trust with the trusts established for the other RCI plans,
but the amendments provided that any surplus funds remaining on termination would
revert to RCI instead of the members. The respondents say that the merger was a
device to use the Premier Plan surplus to compensate for deficits in some of
the other merged plans.
67 Pursuant to the provisions of the Pension Benefits Standards Act, 1985, R.S.C. 1985,
c. 32 (2nd Supp.) ("P.B.S.A."), and the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.), the merged pensions plan
(the RCI Plan) was registered with the Superintendent and the Canada Customs
and Revenue Agency.
68 The respondents sued RCI in 1995
seeking various forms of relief, including a declaration that the merger of the
Premier Plan with other plans forming the RCI Plan was unlawful and the return
of the money taken out of the Trust. This action came to trial in 1998 and the merger
was held to be lawful. The trial judge found that the members were entitled to
the benefits they were promised under the original Plan, including the right to
any surplus existing on termination of the merged plan: Buschau
v. Rogers Cablesystems Inc. (1998), 54 B.C.L.R. (3d) 125. On January
11, 2001, the Court of Appeal upheld the finding that the merger was valid but
held that the merger of the pension plans did not affect the existence of the
Premier Trust as a separate trust. The court ordered that "the members of
the Premier Plan shall be at liberty to undertake proceedings in the Supreme
Court of British Columbia to terminate the Premier Trust, based either on the
rule in Saunders v. Vautier or on the Trust and Settlement Variation Act, R.S.B.C. 1996,
c. 463 to the extent either may be applicable". The Court of Appeal held
that RCI had no "interest" in the Trust and that its consent was
therefore not necessary under the rule in Saunders v.
Vautier (see Buschau #1 [Buschau v. Rogers
Communications Inc. 2001 BCCA 16, (2001) 83 B.C.L.R. (3d) 261]). RCI
paid back the surplus that it had removed before judgment was delivered. While
the decision of the Court of Appeal on this issue is not under appeal, I would
note at the outset that the court's finding in Buschau #1
that the Plan (and fund) and Trust can be severed and dealt with independently
is no doubt responsible in large part for the difficulties posed in this
appeal.
69 On May 24, 2001, the respondents
petitioned the Supreme Court of British Columbia for an order terminating the
Premier Trust. This was the commencement of the present proceeding. The
respondents sought, inter alia, an order "that
the Premier Pension Plan be terminated or, alternatively, that the surplus
portion of the Premier Pension Plan be terminated".
70 Loo J. heard the petition in two
stages. Following the first hearing in November 2001, she held that the
applicability of the rule in Saunders v. Vautier
was decided by the previous decision of the Court of Appeal, and that the rule
was applicable. She ordered RCI to provide to the respondents information
pertaining to the plan "so they can obtain the necessary consents to
terminate the Plan" ((2002), 100 B.C.L.R. (3d) 327, 2002 BCSC 624, at
paras. 12 and 33).
71 On January 7, 2003 the respondents
came to court with consents executed by the 144 members of the plan. The
respondents lacked, however, the consent of approximately 25 of the
beneficiaries designated by the members pursuant to the plan provisions. The
respondents could not rely on the rule in Saunders v.
Vautier to terminate the Premier Trust because it requires the
consent of all possible beneficiaries. They therefore sought to have the court
consent to the termination, on behalf of the designated beneficiaries, pursuant
to s. 1 of the Trust and Settlement Variation Act.
72 In reasons issued on May 1, 2003 (
(2003), 13 B.C.L.R. (4th) 385, 2003 BCSC 683, Loo J. held that the respondents
were entitled to terminate the Premier Trust and gave the court's consent on
behalf of the designated beneficiaries to such termination.
73 Newbury J.A. issued reasons for
judgment on behalf of the Court of Appeal on February 20, (Buschau #2 2004 [Buschau
v. Rogers Communications Inc. 2004 BCCA 80, (2004) 24 B.C.L.R. (4th)
85]). She held, at paras. 11 and 22 of Buschau #2,
that:
(a) Loo J. erred in
holding that the applicability of the rule in Saunders v.
Vautier was decided by the previous judgment of the Court of Appeal.
The conclusion that Saunders v. Vautier
applied was, however, correct;
(b) The respondents
were not entitled to terminate the Premier Trust under the rule in Saunders v. Vautier because they lacked the consent
of all designated beneficiaries;
(c) Loo J. erred in
holding that the court had jurisdiction, under the Trust
and Settlement Variation Act, to consent to a termination of the
Premier Trust on behalf of capacitated designated beneficiaries;
(d) It
was not possible that RCI could reopen the Premier Plan to new members
"since such a step could not, in the particular circumstances of this
case, be taken in good faith by this employer vis-à-vis
the existing beneficiaries".
74 The court held that
"normally" the appeal would be allowed but, in this case, the court
would withhold entering judgment for three months to give the respondents an
opportunity, as suggested by the court, to revoke the designations of existing
beneficiaries (who were not before the court), gather further consents and make
further submissions (paras. 11 and 103).
75 Subsequently, the Court of Appeal
received motions for judgment from RCI and the respondents. In an order issued
by the Court of Appeal on May 18, 2004 in Buschau #3,
the court held that the appeal should be allowed but made, inter
alia, the following orders:
THIS COURT ORDERS that
the appeal is allowed, that the order of Loo, J. be set aside, and that the
petition brought pursuant to the Trust and Settlement
Variation Act be dismissed;
THIS COURT FURTHER
ORDERS that the appellant, Rogers Communications Inc. ("RCI"), does
not have an "interest" in the Trust that would make its consent to
the termination under Saunders v. Vautier
necessary;
THIS COURT ORDERS that,
provided the consents of all Members and those persons who are now designated
beneficiaries have been obtained for the termination of the Trust, the
petitioners shall be at liberty to proceed to invoke the rule in Saunders v. Vautier;
...
THIS COURT
FURTHER ORDERS that RCI cannot amend the Premier Pension Plan to permit the
addition of new members.
76 As of March 31, 2002, the portion
of assets in the master trust allocated to the Premier Trust was approximately
$11 million greater than the actuarial liabilities for the Premier Plan
members. (RCI's factum, at para. 24).
77 The Court of Appeal further decided
that the Trustee would have to satisfy itself that the conditions under the
rule in Saunders v. Vautier had been met and
that all statutory requirements had been complied with before distribution. If
necessary, the Trustee could seek direction under s. 86 of the Trustee Act, R.S.B.C. 1996, c. 464. The court also
rejected the submission that proceedings under the Trust
and Settlement Variation Act would be required, given that the Trust
could be terminated under the rule in Saunders v. Vautier
itself (Buschau #3).
Rogers v.
Buschau,
2006 SCC 28, [2006] 1 S.C.R. 973 (Rogers)
[7]
In fairness to the Employees,
this statement of facts should be supplemented by the following facts upon
which they place considerable emphasis. This summary is taken from the reasons
of Deschamps J. (for the majority) in the Supreme Court:
5 In 1980,
Rogers Cablesystems Inc. (which later became Rogers Communications Inc.
("Rogers")) acquired Premier Communication. In September 1983, the
Plan's actuary was of the view that a surplus evaluated at approximately
$800,000 could be used for improvements to improve benefits for members. On
April 12, 1984, the actuary actually recommended improvements to the benefits.
The actuary was replaced on May 22, 1984. On July 1, 1984, the Plan was closed
to future employees. On July 11, 1984, Rogers
asked the then trustee, Canada Trust, for a refund of part of its
contributions. Canada Trust required a legal opinion before doing so. On
October 31, 1984, Canada Trust was replaced by National Trust. On July 15,
1985, Rogers requested that the new trustee, National Trust,
refund $968,285 to it, which National Trust did. By December 31, 1986, Rogers
had also taken contribution holidays evaluated at $842,000. In December 1992, Rogers
amended the Plan to merge it retroactively with four other pension plans in the
Rogers Communications Inc. Pension Plan ("RCI Plan"). The views of
the employees with respect to such a merger were known to Rogers,
as can be seen from an internal memorandum dated July 16, 1990:
It is
clear that [the Premier employee representative] is not in favour of folding
the Premier Plan into the RCI plan unless we can show clear benefit (unlikely
scenario).
6
The long-term goal pursued by Rogers
with respect to the Plan is stated in another internal memorandum dated April
22, 1993:
You
asked for an update on the status of the Premier Pension Plan. As you are
aware, our objectives related to this plan were (i) to get at the surplus the
plan had and (ii) minimize our administration (i.e. eliminate an audited
statement and an annual regulatory filing, etc).
We
were able to accomplish the objectives above by the amalgamation of all of the
defined benefit plans into one plan. Therefore, the need to do anything further
was redundant.
Rogers,
supra, paragraphs 5-6
[8]
Both Rogers and the trustee
National Trust appealed the British Columbia Court of Appeal’s decision in Buschau
#2 to the Supreme Court. (The application for leave to appeal with respect
to Buschau #1 was dismissed: see [2004] S.C.C.A. No. 350). The Supreme Court of Canada was
unanimous in deciding that the rule in Saunders v. Vautier could not be
invoked to terminate the trust containing the assets of the Premier Plan but
the Court split 4/3 over the issue of the Superintendent’s authority to
terminate the Premier Plan.
[9]
Deschamps J., writing
for the majority
of the Supreme Court, found that since the Plan did not provide for its
termination at the request of Plan members, the Superintendent “could order a
distribution if she were faced with circumstances falling within the parameters
of the PBSA.” (the Pension Benefits Standards Act, R.S.C. 1985, c. 32 (2nd
Supp.): see Rogers, supra at paragraph 39.
I take this to mean that the Superintendent could order a distribution of the surplus
if she found that the facts justified terminating the Plan and distributing the
surplus in the Trust to the Plan members. The question then was whether that
state of affairs existed.
[10]
Deschamps J. recognized that one
factor which would militate against the termination of the Plan was if Rogers were entitled to amend the
Plan to open it to new members. She expressed some doubt on this issue based on
the reasons in Buschau #1 and Buschau #2. Buschau #2 was
an appeal from the decision of Loo J. (reported at 2002 BCSC 624, 100 B.C.L.R.
3(d) 327) to whom the Employees had applied for an order under the rule in Saunders
v. Vautier. In the course of her reasons, Loo J. held that Rogers did not have the right to
amend the plan to include new members:
29 The
Court of Appeal could only have granted liberty to the
Members to terminate the trust on the basis that the trust was closed and that
no further beneficiaries would be added. In my view, based on the evidence
before me, the first time RCI gave any thought to re-opening the Plan to allow
new members was in response to efforts by the Members to terminate the Plan and
have the surplus paid to them. For these reasons, RCI's argument that the rule
cannot apply because it may amend the Plan to allow new members, must fail.
[11]
In Buschau
#2, the appeal from Loo J.’s decision, the British Columbia Court of Appeal
returned to this issue. It held that, in the circumstances of this case, Rogers could
not, in good faith, exercise its right to amend the Plan to open it to new
members because doing so would amount to another stratagem to allow Rogers to obtain
the benefit of the actuarial surplus: see Buschau #2 at paragraph 61. It
is important to note that the in Buschau #2, the British Columbia Court
of Appeal agreed with Loo J.’s conclusion that Rogers could not
amend the Plan to allow new members, but did not adopt her reasoning. It
proceeded on a different ground, namely that Rogers could
not, in good faith, exercise the powers given to it by the Plan documents.
This distinction acquires a certain importance in the decision of the Supreme
Court.
[12]
After
having reviewed these findings from the prior litigation, the Supreme Court said:
If Rogers
could amend the merged RCI Plan to open it to new members, it is questionable
whether the Premier Trust fund could be used to fund benefits owed to new
members without infringing the judgment that is binding on Rogers. Using the
Premier Trust fund to fund benefits for new members or to fund benefits owed to
members of a merged plan have been considered analogous by the courts below. I
do not need to give a definite answer on the possibility of amending the Plan
because, except to the extent that Rogers
is bound by Buschau
#1, the matter is best left to the Superintendent.
Rogers,
supra, paragraph 44
[13]
If the
Superintendent were to find that Rogers
could not open the Plan to new members, then there might be no point in
continuing the Plan if the pension benefits provided for in the Plan could be
provided by the purchase of annuities.
[14]
Relying on
the definition of “termination” under the PBSA, which includes “cessation of
crediting of benefits to plan members”, Deschamps J. asked if the Plan could be
considered as terminated because of Rogers’
failure to make contributions since 1984. Having raised the question, Deschamps
J. left it to the Superintendent to decide whether, in the circumstances, Rogers’ contribution holiday
resulted in the Plan being “terminated”.
[15]
Deschamps
J. then considered whether the Superintendent could terminate the Plan under
subsection 29(2) of the PBSA, which provides as follows:
|
29 (2) The Superintendent may declare the whole or part of
a pension plan terminated where
(a) there is any
suspension or cessation of employer contributions in respect of all or part
of the plan members;
(b) the employer has
discontinued or is in the process of discontinuing all of its business
operations or a part thereof in which a substantial portion of its employees
who are members of the pension plan are employed; or
(c) the Superintendent is
of the opinion that the pension plan has failed to meet the prescribed tests
and standards for solvency in respect of funding referred to in subsection
9(1)
|
29 (2) Le
surintendant peut, dans les cas suivants, déclarer la cessation totale ou
partielle d’un régime de pension :
a) la suspension ou l’arrêt de paiement
des cotisations patronales relativement à plusieurs ou à l’ensemble des
participants;
b) l’abandon total ou progressif de tout
ou partie des secteurs d’activité de l’employeur où travaillent un nombre
important de ses salariés qui participent au régime;
c) le surintendant est d’avis que le
régime n’est pas conforme aux critères et normes de solvabilité
réglementaires, relativement à la capitalisation prévue au paragraphe 9(1).
|
[16]
The first question was whether Rogers’ contribution holiday was an
issue under paragraph 29(2)(a) of the PBSA. The Court reasoned that
since paragraph 29(2)(c) dealt with insolvency, paragraph 29(2)(a)
must refer to a cessation of contributions which did not jeopardize the
solvency of a pension plan. The Court noted that, while contribution holidays
may be legitimate, they may be illegitimate if they conceal an improper refusal
to terminate a plan. Once again, the determination of whether termination was
warranted was left to the Superintendent.
[17]
In summary, the majority of the
Court was of the view that the Superintendent had the authority to provide the
Employees with a remedy:
…
I do not need to deal with the members’ allegations that Rogers
acted in bad faith, which the lower court judges stopped short of finding. Rogers
did indeed attempt to appropriate the surplus. Its resistance to the actuary’s recommendation
to improve employee benefits, its replacement of the less malleable actuary and
trustee, the internal notes, and the improper amendments to the Plan amply
demonstrate that Rogers
did what it could to get at the surplus. However, past conduct is relevant only
if it helps to answer the forward looking question: is there any legitimate
purpose in keeping the Plan or should it be terminated and wound up? The
Superintendent can rule on questions of both fact and law, and all parties can
make appropriate recommendations to him. The provisions of the PBSA and the
regulations concerning the duties of the employer are well within the
Superintendent’s interpretative jurisdiction.
Rogers,
supra, paragraph 53
[18]
That said, the
majority of the Court also considered that the Superintendent was under some
obligation to the Employees:
I agree with the Ontario Court
of Appeal, and it is my view that the Superintendent’s powers under s. 29(2)(a)
of the PBSA becomes almost a duty when employees ask him to act. His power must
be exercised in conformity with the remedial purposes of the provisions of the
PBSA.
Rogers,
supra, paragraph 56
[19]
Bastarache
J., writing for the concurring minority, agreed that Saunders
v. Vautier did not apply to the case of a modern pension plan. However, he
was of the view that the Superintendent did not have a general discretion to
terminate a pension plan:
There is no provision in the PBSA for plan beneficiaries to
terminate a pension plan. Furthermore, there is no provision in the PBSA for
any party (employer, administrator, trustee, Superintendent, plan members, or
other beneficiaries) to terminate the Trust under which the pension fund
contributions are held as security for the payment of plan benefits, prior to,
and independent of, the termination of the Plan. Beneficiaries may request that
the Superintendent exercise his discretionary powers under s. 29(2), but the
Superintendent’s power to terminate a plan is available only where the
stipulated pre-conditions are met. The Superintendent does not have a general
discretion to terminate pension plans.
Rogers,
supra, paragraph 84
[20]
As for the application of Saunders v. Vautier, Bastarache
J. wrote, referring to a defined benefits pension plan, such as is in issue
here, that:
… The
employer assumes the risk in such a plan; when interest rates and investment
returns are high, a surplus will be realized, and when the economy changes,
unfunded liabilities will often result. The goal is to require contributions by
the employer that are sufficient to provide the defined benefits over long
periods of time in spite of market fluctuations. To permit termination of the
Plan when a surplus has been realized independently of the terms of the Plan is
not consistent with its object or the applicable statutory regime. The contract
clearly contemplated a continuing plan supported by a permanent Fund; segregation
of the Fund by “closing” the Premier Plan was not possible. It is therefore
an error to infer that the rule in Saunders v. Vautier can in effect
create a manner of realizing on the actuarial surplus (the Fund) in violation
of the terms of the Plan. In the case of this pension Plan, absolute
entitlement to the surplus would only occur once the surplus becomes real, that
is, once the Plan and Trust had been terminated.
Rogers,
supra, paragraph 90
[21]
On the issue of Rogers’ power to amend the Plan, Bastarache J.
took issue with the British Columbia Court of Appeal’s reasoning in support of
its conclusion that Rogers could not, in good faith,
exercise its power of amendment to open the Plan to new members:
It
seems clear to me that the conclusion of the Court of Appeal on the issue of
good faith is premised on its earlier decision that the amendment would deprive
the beneficiaries of the Premier Trust of their right to terminate it under the
rule in Saunders v. Vautier.I have found that the respondents cannot
terminate the Trust pursuant to Saunders v. Vautier. But of course the
parties could not ignore the Court of Appeal’s decision in Buschau #1. As a
result of that decision, a separate accounting was required for the Premier
Trust. RCI then considered the possibility of making the Plan eligible to new
membership so that similarly situated employees who were members of
non-contributory defined benefit plans could be integrated into the Premier
Plan. This is what the Court of Appeal rejected. Its reasoning however is
driven by the idea that the Plan members were promised more than their pensions
under the Plan i.e. the right to ask for distribution of the Trust surplus,
providing they satisfied the conditions set out in Saunders v. Vautier. The
decision regarding bad faith cannot stand where it is without a foundation.
Rogers,
supra, paragraph 103
[22]
Bastarache J. went on to consider the kind of conduct which would
result in a forfeiture of the employer’s powers of amendment of the Plan. He
was of the view that such a result would flow from conduct, which was an abuse
of the employer’s power or which would offend community standards of
reasonableness in the contemplated use of Trust assets for the benefit of
present and future employees. In effect, the standard is set out in paragraph
8(10)(b) of the PBSA, which provides that where there is a conflict of
interest between the interests of the employer and the employer qua
administrator, then the employer shall act in the best interests of the members
of the pension plan: see Rogers, supra, paragraph 103.
THE SUPERINTENDENT’S
DECISION
[23]
With the Supreme Court’s decision in hand, Rogers and the
Employees approached the Office of the Superintendent.
[24]
The
Employees asked the Superintendent to declare that the Premier Plan was
terminated or to terminate the Plan immediately under the terms of section 29
of the PSB or to order Rogers to terminate the Plan under
section 11 of the PBSA. In addition, the Employees sought to have Rogers
replaced as the Administrator of the Plan, and to have the Plan wound up and
any surplus distributed to members of the Plan in cash.
[25]
In its
application, Rogers made submissions to the
Superintendent seeking approval of amendments to the Plan. It proposed that the
merger of the Plan with other Rogers’ pension plans be revoked. In
addition, Rogers proposed to open the Plan to
new employees of the successor employer to Premier, Rogers Cable Communications
Inc. (Cable Inc.), which had been spun off as a separate employer.
[26]
The
Superintendent dealt with both applications in a single decision. She
summarized her conclusion as follows:
After careful
consideration of the submissions, I have decided that the decision by [Rogers] to revoke
the merger of the Plan with the [Rogers] Plan and the reopening of the Plan by Cable
Inc. do not contravene the terms of the Plan or the PBSA. I also find as a
matter of fact that the Plan has not been terminated under the PBSA or by the
employer. In addition, I have decided not to exercise my discretion to declare the
Plan terminated and not to issue a direction pursuant to section 11 of the PBSA.
I am satisfied, after reviewing all the evidence and submissions of the
parties, that the continued existence of this pension plan is a worthy goal and
that the employer is continuing to provide the promised benefits and complying
with solvency requirements.
Appeal Book,
p.47
[27]
The
Superintendent justified her decision by first referring to the legislative
scheme of the PBSA which, she noted, aims to ensure minimum standards for
pension plans and “presumes that the continued existence of a pension plan is a
worthy goal”: see Appeal Book, p. 47. The PBSA requires that pension plans be
sufficiently funded so as to provide the pension benefits promised to plan
members. The mandate of the Office of the Superintendent of Financial
Institutions (OSFI) reflects the objectives of the PBSA. In particular,
paragraph 4(3)(b) of the Office of the Superintendent of Financial
Institutions Act, R.S.C. 1985,c. 18 (3rd Supp.) requires the OSFI
to strive “to protect the rights and interests of members of pension plans,
former members and any other persons who are entitled to pension benefits or
refunds under pension plans.”: see Appeal Book, p. 47.
[28]
The
Superintendent then noted that an actuarial surplus simply indicates that if a
plan were terminated as at a given valuation date, the assets of the plan would
cover or exceed the cost of providing the pension benefits owing under the plan
as of that date. However, the Superintendent observed that in this case, plan
members were not entitled “to make a claim to share in an actuarial surplus
unless or until a plan is terminated”: see Appeal Book, p. 48.
[29]
The
Superintendent then went on to note that pension plans are generally
established as long term arrangements to provide pension benefits for a defined
class of employees. Termination of a plan is seen by the OSFI as an extreme
measure which is invoked only after other regulatory intervention measures have
failed. Examples of situations where termination might be indicated include
those where pension benefits are jeopardized, the plan’s funding cannot be put
on a sound footing, or the purpose of the plan is being frustrated.
[30]
The
Superintendent then turned to the facts of the case before her. She drew two
important conclusions. First, she accepted the submissions of Rogers and Cable Inc.
“that the current amendments are being made by the ‘Company’ as defined in the
Plan, and the ‘employer’ as defined in the PBSA.” In other words, she accepted
that Cable Inc. was the successor to Premier. Second, she found that “in
reopening the Plan, Cable Inc. is not acting contrary to the PBSA or contrary
to the terms of the Plan and terms of the Trust Agreement establishing the
funds.” In addition, the Superintendent was satisfied that “the general
purpose of the Plan is continuing and the Plan meets prescribed tests and
standards for funding.”: see Appeal Book, p. 48.
[31]
The
Superintendent summarized her conclusion on these issues as follows:
The terms of
the Plan, Trust Agreement, and PBSA do not prevent Cable Inc. from making these
amendments opening membership to new Cable Inc. employees. The decision by
Cable Inc. to reopen the Plan was also made in conjunction with a decision to
close another pension plan established for Cable Inc. employees (“Cable
employees”). There is no merger of the newly closed Cable Inc. plan and the
reopened Plan. Pension benefits that have accrued in that other plan remain in
that other Cable Inc. pension plan. The amendments implementing these decisions
do not take away existing rights or entitlements. The reopened Plan will be
funded by Cable Inc. I am of the opinion that in deciding to revoke the merger
and to reopen the Plan to new employees, [Rogers] and Cable Inc. are not acting
contrary to safe and sound financial or business practices, are not
jeopardizing the pension benefits of the Members, and are not contravening the
PBSA nor the terms of the Plan.
Appeal Book,
p. 49
[32]
The
Superintendent then considered the Employees’ application to declare the Plan
terminated, or to force its termination. The Superintendent noted that since
the employer is a key participant in a pension plan, she must consider the
employer’s position. In this case, the employer did not wish to terminate the Plan.
[33]
The
Superintendent then dealt with the Employees’ argument that since there are no
further accruals in the Plan and since there has been a general cessation of
the crediting of benefits to members, the Plan should be considered
“terminated” within the meaning of the PBSA.
[34]
In that
regard, the Superintendent accepted that there were two members of the Plan
still being credited with benefits and that Cable Inc. has chosen to continue
the Plan for new Cable Inc. employees. As a result, the Superintendent found
that there had not been a cessation of crediting of benefits to plan members
and the Plan had not “terminated”.
[35]
As for the
Employees’ demand that the Superintendent declare the Plan terminated, the
latter noted that the only relevant provision of the PBSA is paragraph 29(2)(a)
which applies when there is any suspension or cessation of employer
contributions in respect of all or part of the plan members. The cessation in
this case is the contribution holiday taken by the employer. The Superintendent
found that the contribution holiday was taken in accordance with the terms of
the PBSA, that it did not jeopardize the Plan’s solvency or the payment of
pension benefits. In her view, the contribution holiday did not lead to the
purpose of the Plan being frustrated.
[36]
The
Superintendent expressed her conclusions on the Employees’ application in the
following terms:
Termination
of the Plan in this case will not result in the protection of the Plan’s
purpose or the protection of the pension benefits of all members of the Plan. In
these circumstances, in deciding whether to terminate the Plan I must also
consider the views of the employer, another party to the contract. Cable Inc.
opposes the termination of the Plan. The Plan reserves the decision to amend
and terminate to the employer, and Cable Inc. has not taken any steps, and
there is no indication that it plans to take any steps, to terminate the Plan. The
fact that the Plan’s fund might be wound up following a termination and the
Members receive surplus is not a sufficient basis for me to decide to terminate
the Plan. Termination is an extreme measure and there are not sufficient
reasons for me to interfere in the administration and operation of the Plan by
declaring the Plan terminated.
Appeal Book,
p. 50
[37]
In keeping
with the logic of the position she had taken on the question of the
termination, the Superintendent also refused the Employees’ application to
issue a direction pursuant to subsection 11(1) of the PBSA that the Plan be
terminated. The Employees’ application for ancillary relief in the form of the
replacement of the Plan administrator and the winding up of the Trust was also
dismissed.
[38]
In the
result, the Superintendent’s decision put an end to the Employees’ attempt to
have the Plan’s actuarial surplus paid to them in cash.
THE FEDERAL COURT DECISION
[39]
The
Employees applied for judicial review of the Superintendent’s Decision, an
application which O’Keefe J. (the applications judge) granted. After reviewing
the Superintendent’s Decision, the applications judge identified seven issues
as follows:
1-
What are
the appropriate standards of review for each of the issues raised?
2-
Was the
issue of reopening res judicata when the Superintendent made her
decision?
3-
If not,
did the Superintendent err in finding that Rogers Inc. had the right to reopen
the Plan to new members?
4-
Did the
Superintendent err in her interpretation and application of the definition of
termination?
5-
Did the
Superintendent err in refusing to exercise her discretion under subsection 29(2)
of the Act?
6-
Did the
Superintendent fetter her discretion by stating that termination was an extreme
measure?
7-
Did the
Superintendent err in failing to recognize that Rogers Inc. was in a conflict
of interest?
Reasons for Judgment, paragraph 21
[40]
After
summarizing the parties’ submissions on these issues, the applications judge
conducted a standard of review analysis and concluded that the standard of
review for questions of law and jurisdiction was correctness while, in the case
of questions of mixed law and fact, the standard was reasonableness. The
applications judge then went directly to the fifth issue, the exercise of the
Superintendent’s discretion under subsection 29(2) of the PBSA, and disposed of
the application for judicial review as follows:
[51] In my
opinion, the Superintendent failed to appreciate the extent of her discretion
under paragraph 29(2)(a) and rendered a decision that was unreasonable given
the evidence before her. I am of this opinion for two reasons. Firstly, the
Superintendent failed to recognize that even legitimate contribution holidays
that are valid under the Act can be considered illegitimate for the purposes
of paragraph 29(2)(a) if they are used to hide an improper refusal to terminate
on the part of the employer. The evidence before the Superintendent included
that in the past, Rogers Inc. had replaced an uncooperative actuary and
trustee, had improperly amended the Plan, and had improperly withdrawn funds
from the Plan all with the objective of getting at the Plan’s surplus. In my
opinion, this evidence, coupled with the fact that Rogers Inc. had closed the
Plan in 1984, had stopped making contributions to the Plan, and had no
intention to reopen the Plan until the applicants filed their petition for
termination, makes the Superintendent’s findings unreasonable.
[52]
Secondly, the Superintendent failed to appreciate her duty to the employees
under paragraph 29(2)(a). As mentioned by the Supreme Court of Canada, the
powers delegated under the Act must be exercised in light of its remedial
purpose. This duty is not to be taken lightly as it provides Plan members with
a much needed remedy. In light of these failures on the part of the
Superintendent, I am of the opinion that her decision not to exercise her
discretion under paragraph 29(2)(a) was unreasonable. I would allow the
judicial review on this ground.
Reasons for
Judgment, paragraphs 51 and 52.
[41]
Accordingly,
the applications judge allowed the application for judicial review and remitted
the matter to the Superintendent for re-determination.
[42]
The
difficulty with the applications judge’s decision is that it does not engage
the Superintendent’s reasoning in support of her conclusions. Without that
analysis, it is difficult to say on what basis a Court would be justified in
intervening to set that Decision aside.
ISSUES
[43]
The key
issue in this appeal is whether the Superintendent either improperly exercised
her discretion or made a reviewable error of law when she allowed Rogers/Cable
Inc. to revoke the merger of the Plan and to amend the Plan to open it to new
employees of Cable Inc. In particular, if the Superintendent was entitled to
allow Rogers/Cable Inc. to reopen the Plan to new members, then it was not
unreasonable for her to find that the “continued existence of the Plan is a
worthy goal and that the employer is continuing to provide the promised
benefits and complying with solvency requirements.” If, on the other hand, the
Superintendent was not entitled to allow the amendment to reopen the Plan, then
the argument that the continued existence of the Plan serves any of the
purposes of the Plan or of the PBSA is harder to sustain.
ANALYSIS
[44]
In Cousins
v. Canada (Attorney General), 2008 FCA 226, [2008] F.C.J. No. 1011 at
paragraph 22, this Court held that the standard of review of a decision of the
Superintendent of Financial Institutions, on a question involving the
interpretation of the PBSA, was reasonableness. This is consistent with the
Supreme Court of Canada’s view that “The provisions of the PBSA and the
regulations concerning the duties of the employer are well within the
Superintendent’s interpretative jurisdiction”: see Rogers, supra, paragraph 53.
[45]
As
for the review of the Superintendent’s discretionary decisions, this Court held
that such decisions, involving as they do, “a range of
policy-laden remedial choices that involved the balancing of multiple sets of
interests of competing constituencies” are also entitled to deference: see Cousins
at paragraph 24. This is consistent with the position taken by the Supreme
Court of Canada in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R.
190, where the Court held at paragraph 53, that “[W]here the question is one of
fact, discretion or policy, deference will usually apply automatically
(citations omitted)”.
[46]
Since a proper standard of review analysis has already been
conducted, it is not necessary to conduct another. I find that the standard of
review of the Superintendent’s Decision, whether on a question of the
interpretation of the PBSA or in relation to a discretionary decision in the
administration of the pension plans, is reasonableness.
[47]
A review of the Superintendent’s Decision shows that it is
grounded in her assessment of the policy and objectives of the PBSA, specifically,
that the continued existence of a pension plan is a worthy goal. It is
difficult to gainsay this conclusion. In particular, it is difficult to suggest
that where money has been set aside to provide pensions, the objectives of the
PBSA are better served by a diversion of those funds to other purposes, whether
for the benefit of the employer or the employees, than it is by ensuring the
continued existence of a properly funded, properly supervised pension plan.
[48]
In the present case, the key issue is the opening of the Premier
Plan to new employees of the successor employer, Cable Inc. Unless the
reopening is allowed, Rogers’ various manoeuvres have created a stranded trust,
which now exists independently of the Premier Plan, which has been merged into
a consolidated Rogers pension plan. As the Supreme Court pointed out, the
finding that the Premier Trust was not affected by the merger of the Premier
Plan into the consolidated Rogers Plan is binding on Rogers: see Rogers,
paragraph 11.
[49]
The conclusions of the British Columbia Court of Appeal in
both Buschau #1 and Buschau #2 are premised on the existence of a valid
trust to which the rule in Saunders v. Vautier could apply. One of the
requirements of a valid trust is certainty of objects: see British Columbia
v. Henfrey Samson Belair Ltd., [1989] 2 S.C.R. 24 at paragraph 45.There can
be no doubt that the British Columbia Courts proceeded on the basis that the
object of the Premier Trust was to benefit members of the Premier Plan, an
object which was not defeated by the merger of the Premier Plan into the
consolidated Rogers plan. That is the
significance of the statement in Buschau #1 that:
…
I prefer to regard trust law as importing a series of its own rules that apply
in addition to, and in precedence over, the law of contract and the rules of
construction of contracts. To this extent, members of the Premier Plan
retain rights that are distinct from those of members of the other plans that
were merged with it into the RCI Plan. These rights cannot be done away
with by unilateral action of the employer without crystal-clear authority in
the trust terms.
Buschau
#1 at paragraph 66
[50]
The distinct rights of the members of the Premier Plan
could only be found in the terms of the Premier Trust and the Premier Plan. By
revoking the merger, Rogers/Cable Inc. were simply restoring that which existed
prior to the merger. The Superintendent found that the Rogers’ decision
to merge the Premier Plan into its consolidated plan was not irrevocable. The
only possible basis for considering that the amendments to the Premier Plan
were irrevocable and that Rogers/Cable Inc. could not open the Plan to new
members was the view that the Employees had acquired rights to the surplus by
operation of the rule in Saunders v. Vautier. Since both the majority
and the minority in the Supreme Court agreed that the rule in Saunders v.
Vautier did not apply to pension plans, then, subject to the argument as to
good faith, there is nothing unreasonable about the Superintendent’s Decision
to allow Rogers to unwind its ill-considered amendments.
[51]
Once the Premier Plan is made whole again by unwinding the merger
of the Plan with the Rogers consolidated plan, the
question which remains is whether the Plan is viable. The Superintendent found
that there were still two employees who were accruing pension credits under the
Premier Plan so that the Plan did not fall within the definition of
“termination” under the PBSA. This is a conclusion of fact coupled with a
conclusion of mixed fact and law, neither of which is unreasonable. The
Superintendent then considered the proposed amendment to open the Premier Plan
to new employees of Cable Inc., which she found was the “Company” as defined in
the Plan and the “employer” as defined in the PBSA. Once again, the
Superintendent could reasonably come to this conclusion on the basis of the
material before her. Finally, the Superintendent found that reopening the Plan
was not acting contrary to the terms of the Plan, the Trust or the PBSA. Further,
she found that the reopening of the Plan satisfied the general purposes of the
Plan and that the Plan met all solvency and funding standards.
[52]
In short, the Superintendent found that the objects of the Plan
and of the PBSA were better served by using the actuarial surplus in the Plan to
fund pensions for members of the Plan, including new members, than by providing
a windfall to the current members of the Plan at the cost of terminating a
viable pension plan. There can be no doubt that the distribution of the
actuarial surplus (which stood at $11,000,000 in 2002) to the limited number of
members of the Premier Plan would provide each of them with a tidy sum. But, as
the Superintendent pointed out in her Decision: “The fact that the Plan’s fund
might be wound up following a termination and the Members receive surplus is
not a sufficient basis for me to decide to terminate the Plan.”: see Appeal
Book, p.50.
[53]
Once the Superintendent decided to allow the amendments to the
Plan, the question of terminating the Plan had to be assessed in light of the
existence of a viable Plan with a growing membership. The Superintendent
canvassed the arguments raised with respect to subsection 29(2) of the PBSA and
found that only paragraph 29(2)(a) could apply, but that it did not
because Roger’s cessation of contributions was a contribution holiday which was
authorized by the PBSA, did not threaten the solvency of the Plan and did not
frustrate the purposes of the Plan. The Supreme Court found that the
interpretation of the PBSA and the associated regulations fell within the
Superintendent’s interpretative mandate. There is nothing unreasonable about
her conclusions which would call for this Court’s intervention.
[54]
The same is true of the Superintendent’s conclusions with respect
to the application of section 11 of the PBSA as well as her disposition of the
Employees’ application for replacement of the administrator of the Plan.
[55]
Finally, there is the issue of whether the Superintendent must act
when plan members ask her to do so. Assuming that this is the case, it does not
follow that the action which the Superintendent takes in response to such a request
must necessarily be that sought by the plan members. As the Supreme Court
pointed out, the Superintendent is bound to exercise her discretion with a view
to the remedial purposes of the PBSA. In this case, the Superintendent found
that the amendments to the Plan satisfied the objectives of the Plan and of the
PBSA. In those circumstances, it is difficult to see how winding up the Plan
and the Trust would represent a more faithful adherence to the objectives of
the PBSA than the measures approved by the Superintendent.
[56]
It is worth keeping in mind that the Employees did not invoke the
Superintendent’s assistance at any point prior to asking her to terminate the
Plan. Going forward, the Employees will be able to invoke the Superintendent’s
supervisory authority should Cable Inc. abuse its position as administrator or
its rights as the employer. To that extent, Rogers’ conduct,
in the absence of regulatory supervision, is not a predictor of its conduct in
the context of what will undoubtedly be attentive regulatory supervision.
[57]
That said, the only remaining issue is whether the Superintendent
is precluded from doing what she did by the application of the doctrine of res
judicata. The Supreme Court identified the issues where res judicata
was a factor in its reasons at paragraph 40:
… Rogers conceded that the 1992
amendments entitling it to any surplus on termination were ‘invalid as against
the [members]’ (Buschau #1, at para. 38). The Court of Appeal found (Buschau
#1, at paras. 63 and 66) that the merger was incomplete as regards the Plan
and that the members retained rights that were distinct from those of members
of the other plans that were merged in the RCI Plan. Buschau #1 is now
binding on Rogers. Although
the members do not have a specific interest in the surplus before termination,
the findings in Buschau #1 limit Rogers
right to use it.
[58]
In
addition, the Supreme Court also referred to Loo J.’s observation that the
Court of Appeal’s conclusion in Buschau #1 prevented Rogers from using its power of
amendment to reopen it to new members. It noted that the British Columbia Court
of Appeal appears to have accepted this finding in Buschau #2 when it
held that Rogers could not, in good faith,
exercise its right to reopen the Plan to new members, so that such new members
could share in the benefit of the Premier Trust, including the surplus:
… A similar
result would ensue: because of its breach of trust or obligations of good faith,
the employer would be required to account to the existing Members as if the
Plan had not been re-opened.
Buschau #2, paragraph
61
[59]
This led
the majority of the Supreme Court to say:
If Rogers
could amend the merged RCI plan to open it to new members, it is questionable
whether the Premier Trust fund could be used to fund benefits owed to new
members without infringing the judgment that is binding on Rogers. Using the
Premier Trust to fund benefits for new members or to fund benefits owed to
members of a merged plan have been considered analogous by the courts below. I
do not need to give a definite answer on the possibility of amending the Plan because,
except to the extent that Rogers is bound by Buschau #1, the
matter is best left to the Superintendent.
Rogers, paragraph
44
[60]
While the
majority of the Supreme Court raised the issue of Rogers’ power to amend the Plan to reopen it to
new members, it did not decide the question, preferring it to leave it to the
Superintendent, subject only to the application of res judicata.
[61]
It is
common ground that Rogers could not amend the Plan to
gain control of the surplus. In fact, Rogers
returned amounts which it had taken from the Trust prior to judgment being
pronounced in Buschau # 1: see Rogers at paragraph 68. Similarly, it is not
disputed that the purported merger of the Premier Plan with other Rogers’ plans did not affect the
Trust. Rogers’ conduct following the
decision of the Supreme Court of Canada was premised on the continuing existence
of the Premier Trust. Furthermore, it is not contentious that members of the
Premier Plan had rights vis-à-vis the Premier Trust that other members
of the consolidated plan (the RCI plan) did not have. This simply flows from
the fact that the object of the Premier Trust was to fund the benefits to be
provided to members of the Premier Plan; those who were not members of the
Premier Plan could have no equitable or legal claim against the assets of the
Premier Trust, nor could they gain such rights by virtue of their membership in
a consolidated plan: see Buschau #2 at paragraph 61.
[62]
The only
point of significance is whether either Buschau #1 or Buschau #2
precluded Rogers from amending the Plan to
revoke the merger with the consolidated plan and to reopen the plan to new employees
of Cable Inc.
[63]
It is not, in my view, necessary to conduct a lengthy exegesis of
the reasons of the British Columbia Court of Appeal in Buschau #1 and Buschau
#2 in order to answer this question. The only form of amendment in issue
before that Court was an amendment which would result in benefits being paid to
members of the Rogers consolidated plan from the
assets of the Premier Trust. In Buschau #1, the British Columbia Court
of Appeal described Rogers’ argument as follows:
65
Mr. Nathanson draws a
distinction between a merger of pension plans - the validity of which is a
matter of contract - and a merger of pension trusts - a matter of trust law. He
contends that the merger of the plans in this case was permitted by the broad
powers of amendment reserved by Premier in the predecessor plans, including the
Premier Plan; and that as a result, the plaintiffs are now members of the RCI
Plan and will on its termination be entitled to share in the surplus with
all other members of the RCI Plan. The Premier trust, on the other hand,
was not merged, in Mr. Nathanson's submission. Yet at the same time, he says,
the Premier Fund, mingled with the funds of the other four plans, is now
held for the benefit of all 4,300 members of the RCI Plan. After all, the
employer could simply have added 4,200 new members to the Premier Plan pursuant
to its express powers to do so. In Mr. Nathanson's argument, the result of the
merger is similar. (emphasis added)
[64]
This was the only argument on merger, which was before the British
Columbia Court of Appeal and, as Bastarache J. noted, this is what the British
Columbia Court of Appeal rejected. In Buschau #2, the British Columbia
Court of Appeal’s reasoning was premised on the notion that the members of the
Premier Plan had certain rights under the rule in Saunders v. Vautier, which
could not be defeated by the merger implemented by Rogers. Once the
premise that the rule in Saunders v. Vautier created rights in an
unrealized actuarial surplus was set aside, the question of Rogers’ right to
reopen the Plan remained an open question. This is essentially the point made
by Bastarache J. in his concurring reasons. While the majority did not adopt
Bastarache J.’s reasoning, it did not reject it. In my view, it is sound and
ought to be applied to this case.
[65]
Consequently, I conclude that the application of res
judicata does not prevent the Superintendent from allowing Rogers/Cable Inc.
to revoke the merger of the Premier Plan into the consolidated Rogers plan and
to reopen the Premier Plan to new employees of Cable Inc.
CONCLUSION
[66]
As a result, I would allow the appeal with costs here and below
and set aside the order of the applications judge.
"J.D.
Denis Pelletier"
“I
agree.
Marc Noël J.A.”
“I
agree.
M. Nadon J.A.”
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