On July 29, 2004, the Supreme Court of Canada issued its long-awaited ruling in Monsanto Canada Inc. v. The Superintendent of Financial Services. Together with Monsanto, the Association of Canadian Pension Management (ACPM) was also an appellant in the appeal. The National Trust Company and the Attorney General of Canada joined as interveners supporting the position of Monsanto and the ACPM. The Superintendent’s view was supported by a group of individuals representing certain former National Trust Employees, the Canadian Labour Congress, the Ontario Federation of Labour, and another individual representative of an employee group who also obtained intervener status in the appeal to the Court.
The Court ruled that if there is a surplus in a pension plan on a partial wind-up, s. 70(6) of the Pension Benefits Act of Ontario requires the portion relating to the partial wind-up to be paid out.
However, the Court was careful to emphasize that its decision had no impact on the question of surplus entitlement (that is, who is ultimately entitled to receive payment of any such surplus). Employers, plan administrators and plan members can expect future negotiation or litigation to sort out some of the mechanics of surplus distribution on partial wind-up, such as whether there should be a partial wind-up, the date of the partial wind-up, how much surplus is in the whole of the plan on partial wind-up, how much is attributable to Ontario or other jurisdictions with similar legislation and how much to attribute to the wound up part. The case leaves many implementation issues unresolved. Since 1992 the Financial Services Commission of Ontario has maintained a record of 281 plans in Ontario with unresolved surplus issues relating to partial wind-ups. It is not known how many potential partial or older partial wind-ups may be affected by this decision.
The Court also expressly overruled the Ontario Court of Appeal on the issue of the “standard of review” of decisions of the Financial Services Tribunal (FST) and concluded that no special deference was owed to the FST, which will now be held to a standard of correctness, rather than reasonableness on many issues when its decisions are appealed to the courts.
Monsanto was represented by Freya Kristjanson and Markus Kremer of Borden Ladner Gervais. The Association of Canadian Pension Management was represented by Jeff Galway and Randy Bauslaugh of Blake, Cassels & Graydon.
The Superintendent of Financial Services was represented by Deborah McPhail and Leslie McIntosh of the Ministry of the Attorney General.
The intervener, the National Trust Company, was represented by J. Brett Ledger, Lindsay Hill and Ian McSweeney of Osler, Hoskin & Harcourt. The individual intervener representatives of certain former National Trust Employees, and a former Monsanto employee, were represented by Mark Zigler and Ari Kaplan of Koskie Minsky. Donald Rennie and Kirk Lambrecht, Q.C., appeared for the Attorney General of Canada.
The interveners, the Canadian Labour Congress and the Ontario Federation of Labour were represented by Howard Goldblatt, Dona Campbell and Ethan Poskanzer of Sack Goldblatt Mitchell. William J. Sammon of Barnes, Sammon appeared for another individual representative intervener.