TABLE OF CONTENTS...Pension Bulletin Volume 11, Issue 3 The information set out below is current to...

TABLE OF CONTENTS

THE FINANCIAL SERVICES COMMISSION OF ONTARIO

SEPTEMBER 2002 • VOLUME 11, ISSUE 3

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General AnnouncementsAppointment of Bryan Davies as CEO and

Superintendent of Financial Services ..........1

Contacts for Plan Specific Enquiries .................2

Hearings/Court MattersEnforcement Matters .........................................3

Court Matters ....................................................4

Legislative Changes/Regulatory PoliciesOntario Regulation 202/02 ...............................7

Ontario Regulation 203/02 ...............................7

Pregnancy, Parental and Emergency Leave – B100-206.........................................9

Superintendent of Financial ServicesAppointment of Administrators –

Section 71 of the PBA................................11

Notices of Proposal to Make an Order............13

Notices of Proposal to Make a Declaration ....34

Notices of Proposal to Refuse to Approve.......42

Orders that Pension Plans be Wound Up .......48

Consents to Payments of Surplus out of Wound Up Pension Plans..........................56

Declaration that the Pension BenefitsGuarantee Fund Applies to Pension Plans –Subsection 83(1) of the PBA......................59

Tribunal ActivitiesAppointments of Tribunal Members...............61

Pension Hearings Before the FinancialServices Tribunal........................................62

Financial Services Tribunal Decisionswith Reasons..............................................75

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Pension Bulletin

All publications provided by the Financial Services Commission of Ontario (FSCO) in written or electronicformats have been prepared by FSCO to provide general information about pension matters to the public.

Information in this Bulletin or any FSCO publication is provided by FSCO upon the express understandingthat neither FSCO nor any member of the staff of FSCO is providing legal, actuarial, accounting or otherprofessional advice or services whatsoever with respect to the material contained in this Bulletin or anyFSCO publication. FSCO and staff of FSCO are not responsible for any action, costs, damages or liabilityarising from the use of any information contained in FSCO publications nor in respect of the consequencesof anything done or omitted to be done by any person in reliance upon the whole or any part of the contentsof this Bulletin or any FSCO product.

The Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 as amended, the PensionBenefits Act, R.S.O. 1990, c. P.8 as amended, R.R.O. 1990, Reg. 909 as amended, the terms of the pensionplan and trust, if any, and the policies, procedures and practices of FSCO should be considered in determining specific legal requirements, and professional advice should be sought.

This material is owned by the Government of Ontario and protected by copyright law. It may notbe reproduced or redistributed for commercial purposes without the prior written permission of theQueen’s Printer for Ontario.

If it is reproduced or redistributed for non-commercial purposes, Crown copyright is to beacknowledged.

PERMISSION

To request permission to reproduce all or part of this material for commercial purposes, pleasecontact the Queen’s Printer’s representative:

Senior Copyright Analyst

Publications Ontario

(416) 326-5153

E-mail: [email protected]

© Queen’s Printer for Ontario, 2002

ISSN 1481- 6148

Ce document est disponible en français

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GENERAL ANNOUNCEMENTS

Appointment of Bryan Davies as Chief Executive Officer and Superintendent of Financial Services, FSCO

July 15, 2002

Dear FSCO Stakeholder:

Today the Ontario Deputy Minister of Finance, Bob Christie, announced the appointment ofBryan Davies as the new Chief Executive Officer and Superintendent of Financial Services, FinancialServices Commission of Ontario (FSCO). The appointment is effective September 3, 2002.

I would like to welcome Mr. Davies to FSCO and express my confidence in his leadership as FSCOmoves forward in fulfilling its mandate to protect the public interest and enhance public confidencein the regulated sectors by providing regulatory services that protect consumers and support ahealthy and competitive financial services industry.

Most recently, Mr. Davies has been the Senior Vice President of Regulatory Affairs at the Royal Bankof Canada. Prior to that he spent several years at the University of Toronto as Senior Vice Presidentof Business Affairs and Chief Administrative Officer.

Mr. Davies also has extensive senior experience in the public sector, including Deputy Treasurer andDeputy Minister of Economics at the former Ontario Ministry of Treasury and Economics as well asDeputy Minister at the former Ontario Ministry of Financial Institutions. He is an exceptionalchoice to lead FSCO.

I will remain as the acting Chief Executive Officer and Superintendent, Financial Services untilMr. Davies assumes his position in September 2002.

Sincerely,

Philip Howell

Chief Executive Officer and

Superintendent of Financial Services (Acting)

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Contacts for Plan Specific Enquiries

Contact Name Title Phone Number Allocation Alpha Range

Jaan Pringi Sr. Pension Officer 416-226-7826

Gulnar Chandani Pension Officer 416-226-7770 #’s - Associated

Penny McIlraith Pension Officer 416-226-7822 Associates - Bulk

Tim Thomson Pension Officer 416-226-7829 Bull - Cem

Irene Mook Sang Pension Officer 416-226-7824 Cen - Cz

Kathy Carmosino Pension Officer 416-226-7823 I - King

Preethi Anthonypillai Pension Officer 416-226-7812 Kinh - Mark

Gino Marandola Sr. Pension Officer 416-226-7820

Calvin Andrews Pension Officer 416-226-7768 Gko - H

Jeff Chuchman Pension Officer 416-226-7807 D - Em

John Graham Pension Officer 416-226-7774 Marl - Nes

Julina Lam Pension Officer 416-226-7815 Net - Pep

Anna Vani Pension Officer 416-226-7833 Peq - Rob

Larry Martello Pension Officer 416-226-7821

Rosemin Jiwa Jutha Sr. Pension Officer 416-226-7816

John Khing Shan Pension Officer 416-226-7237 En - Gkn

Peter Dunlop Pension Officer 416-226-7814 Roc - Sons

Hae-Jin Kim Pension Officer 416-226-7876 Sont - The Drop

David Allan Pension Officer 416-226-7803 The Droq - Unicorp

Mark Lucyk Pension Officer 416-226-7781 Unicorp - Z

Robin Gray Pension Officer 416-226-7855

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The information set out below is current toJuly 23, 2002.

Enforcement Matters

i. Canadian Corporation Creation Center(CCCC) Charges under the Pension Benefits Act (the“Act”) were laid against the CCCC Pension Planadministrator, the individual trustees, CCCCand related companies on September 12, 2001.The charges relate to a scheme whereby lockedin accounts were assigned to the defendantcompanies in return for the promise to extend aloan to the locked in account holder. A firstappearance occurred on October 9, 2001. A sec-ond appearance occurred on December 6, 2001,at which time one of the individual trusteespleaded guilty to a charge of failing to adminis-ter the CCCC Pension Plan in accordance withAct. A fine of $5,000 inclusive of victim sur-charge was levied. The charges against the otherdefendants were withdrawn on June 17, 2002.

ii. Visentin Steel Fabricators Ltd.Charges were laid for failing to file annual infor-mation returns. The first appearance occurredon August 21, 2001. The matter was subse-quently adjourned and on February 12, 2002, atrial date was set for April 12, 2002. On April 12,2002, the defendant pleaded guilty to threecounts relating to filings for periods prior to theeffective date of the wind up of the plan. A totalfine of $3,600 was levied and a probation orderrequiring that the defendant file the outstand-ing documents was imposed.

iii. Bimeda-MTC Animal Health Inc./Bimeda-MTC Sante Animale Inc.Charges were laid in respect of two pensionplans administered by Bimeda. In one pension

plan, Bimeda was charged for failing to file afinancial statement. In respect of the otherplan, Bimeda was charged for failing to filefinancial statements for two consecutive years.The first appearance for the charges occurred onMarch 5, 2002. The matter was subsequentlyadjourned and on May 31, 2002, the chargeswere withdrawn.

iv. Dubreuil Forest Products LimitedCharges were laid for failing to file a financialstatement. The first appearance for the chargesoccurred on March 5, 2002. The matter wassubsequently adjourned to August 27, 2002.

v. Pass & Seymour Canada, Inc.Charges were laid for failing to file a financialstatement and an annual information return.The first appearance in Court was on March 5,2002. The matter was adjourned to April 16,2002. On April 16, 2002, Pass & Seymour plead-ed guilty to all charges and a total fine of $1,500was levied on all charges.

vi. Pacific Paving LimitedA charge was laid for failing to file a financialstatement. The first appearance in Court was onMarch 5, 2002. The matter was subsequentlyadjourned and on May 31, 2002, Pacific Pavingpleaded guilty to the charge and a total fine of$100 was levied.

vii. Mimik Industries Inc.Charges were laid against the employer, MimikIndustries Inc., and against an officer of theemployer for failing to remit the required con-tributions to the pension plan. The first appear-ance in Court was on June 13, 2002, at whichtime the matter was adjourned to July 31, 2002.

HEARINGS/COURT MATTERS

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viii. Servifood Ltd.Charges were laid against the employer for fail-ing to file an amendment, PBGF assessment cer-tificates and an annual information return. Thefirst appearance in Court was on June 13, 2002,at which time the Court determined that servicehad not been effected against the defendants.

ix. Glenex Industries Inc.Charges were laid for failing to file financialstatements for five consecutive years. The firstappearance in Court was on June 28, 2002.Glenex pleaded guilty to all the charges and atotal fine of $3,700 was levied.

x. Rellok Ltd.Charges were laid for failing to pay the filingfees for annual information return for two con-secutive years. The first appearance in Courtwas on June 28, 2002, at which time thecharges were adjourned to July 30, 2002.

Court Matters

i. Moisan et al. v. Pension Commissionof Ontario et al.In August 1996, a group of former membersof the Retirement Income Plan for Employeesof Kidd Creek Mines commenced a civil actionagainst the Pension Commission of Ontario(PCO), Falconbridge Limited, and SedgwickLimited, claiming $11.4 M in damages. Theplaintiffs claimed that the PCO’s consent to awind up and surplus withdrawal by theemployer in 1986 was void because no noticewas provided to the members. The plaintiffsalso claimed that the employer Kidd Creek andits actuary deliberately undervalued liabilitiesfor the wind up so as to maximize the surplus,and that Kidd Creek and its actuary encouragedmembers to take the Kidd Creek RetirementSavings Program option rather than thedeferred annuity option.

The action was certified as a class action in1999. The claim against the PCO was amendedto eliminate the claim for damages and toinstead claim a declaration that the PCO’s con-sent was void.

Settlement negotiations on the eve of trialresulted in a proposed settlement reached inMarch of 2002. On May 28, 2002, the SuperiorCourt of Justice approved the settlement andthe proposed allocation of funds. The settle-ment involves Falconbridge paying the sum of$5.0 M over four years and Sedgwick paying thesum of $700,000 immediately.

ii. Monsanto Canada Inc.On April 29 and 30, 2002, the Court of Appealheard the appeal of the Divisional Court’s deci-sion brought by Monsanto Canada Inc., theAssociation of Canadian Pension Management,and National Trust Company. The issues are

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whether the Act compels a distribution ofsurplus on partial wind up and whether thedoctrine of legitimate expectation applies.The Divisional Court had unanimously allowedthe Superintendent’s appeal of the FinancialServices Tribunal’s majority decision, whichheld that the Act does not compel a distributionof surplus on partial wind up and that the doc-trine of legitimate expectation applied againstthe Superintendent.

The Court of Appeal reserved its decision.

iii. Ontario Teachers’ Pension Plan(Anne Stairs)

On May 24, 2002, the Divisional Court heardan appeal by Anne Stairs against the FinancialServices Tribunal’s decision which directed theSuperintendent not to carry out a proposal toorder the Teachers’ Pension Plan Board to paycertain survivor benefits to Ms. Stairs, a formerspouse of the plan member who died beforereaching retirement age. The Tribunal held thata separation agreement awarding Ms. Stairs aninterest in the plan member’s pension benefits(including death benefits) could not be enforcedunder the Act, as death benefits were not prop-erty and the plan member’s spouse at the timeof his death was not a party to the separationagreement.

The Divisional Court released its decision onJune 18, 2002. The appeal was allowed. TheCourt found that death benefits were propertythat could be assigned and that subsection48(13) clearly gave Ms. Stairs an interest in thedeath benefits. The standard of review wasreasonableness. However, the standard was cor-rectness when the Tribunal interpreted familylaw or the common law.

The parties will return to argue the amount of

Ms. Stairs entitlement before the DivisionalCourt on September 31, 2002.

iv. Dustbane Enterprises LimitedOn June 7, 2002, the Divisional Court heard anappeal by Dustbane Enterprises Limited withrespect to a Financial Services Tribunal decision.The case involves a partial wind up of thePension Plan for Employees of DustbaneEnterprises Limited whereby Dustbane’s distrib-utors and their employees were removed fromthe plan. The Tribunal’s majority decision heldthat the plan was not a multi-employer pensionplan because there was no agreement on thepart of the distributors to contribute as employ-ers to the plan, and that Dustbane and not itsdistributors was responsible for a deficit thathad arisen on partial wind up. The Tribunalmajority held that Dustbane was the employerof the distributors and their employees for thepurposes of the Act. The Tribunal dissent heldthat the plan was a multi-employer pensionplan based on an agreement implied throughconduct in remitting contributions to the planand that the distributors were therefore respon-sible for the deficit.

The Tribunal unanimously held that any delaycould not excuse payment of the deficit, sinceplan members’ rights under the Act could notbe compromised.

The Divisional Court dismissed the appeal onJune 7, 2002, finding that Dustbane wasestopped from claiming that it was a multi-employer pension plan after years of holdingitself out as a single employer plan. The Courtfound that the Tribunal majority acted reason-ably in interpreting the term “employer” withplan members’ rights in mind, and that theTribunal panel as a whole acted reasonably infinding that delay could not compromisemembers’ rights under the Act.

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LEGISLATIVE CHANGES/REGULATORY POLICIES

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Ontario Regulation 202/02Regulation 202/02 has been made under the Pension Benefits Act to implement the restructuring ofthe pension plans of Algoma Steel Inc.

A copy of Ontario Regulation 202/02 is available on FSCO’s website at www.fsco.gov.on.ca

Ontario Regulation 203/02Effective June 28, 2002, Regulation 909 under the Pension Benefits Act was amended by OntarioRegulation 203/02 to prevent any additional employers from electing to have their pension planstreated as qualifying plans for the purposes of Section 5.1 of the Regulation.

A copy of this amendment to Ontario Regulation 909 is available on FSCO’s website atwww.fsco.gov.on.ca

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Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

SECTION: Benefits

INDEX NO.: B100-206

TITLE: Pregnancy, Parental and Emergency Leave

APPROVED BY: Superintendent of Financial Services

PUBLISHED: FSCO website (May 2002)

EFFECTIVE DATE: May 1, 2002

REPLACES: B100-200, B100-202, B100-204, B100-205

This policy replaces B100-200, B100-202,B100-204 and B100-205 as of the effective dateof this policy.

Note: Where this policy conflicts with the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c. 28 (“FSCO Act”), Pension Benefits Act,R.S.O. 1990, c. P.8 (“PBA”) or Regulation 909,R.R.O. 1990 (“Regulation”), the FSCO Act, PBA orRegulation govern.

Section 51 of the Employment Standards Act,2000, S.O. 2000, c. 41 (“ESA”) sets out require-ments in situations where a member of a pen-sion plan is absent from employment as a resultof pregnancy, parental or emergency leave, asdefined under the ESA.

For pension plans where members are notrequired to make contributions under the plan,the effect of the ESA requirements is that amember who takes such leave continues toparticipate in and accrue benefits under thepension plan throughout the term of the leave,and the employer’s contributions respecting themember must continue to be made during thattime, unless the member elects in writing not to

participate in the pension plan for the term ofthe leave.

For pension plans where members are requiredto make contributions under the plan, theeffect of the ESA requirements is that a memberwho takes such leave continues to participatein and accrue benefits under the pension planthroughout the term of the leave, and theemployer’s contributions respecting the mem-ber must continue to be made during that time,unless the member gives the employer writtennotice that the member does not intend to payhis or her contributions related to the term ofthe leave or elects in writing not to participatein the pension plan for the term of the leave.

Where a member of a contributory plan doesnot elect to stop making contributions to theplan during pregnancy, parental or emergencyleave, the manner in which the member’s con-tributions are to be made should be set out inthe plan text. This could include periodic pay-ments during the leave, a lump sum payment orsome other arrangement that the plan sponsorwishes to implement.

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The plan administrator should provide suffi-cient information for members to makeinformed decisions about pregnancy, parentalor emergency leave. This information mightinclude scenarios which clearly illustrate thepossible results of continuing or not continuingto participate in the plan during the term of theleave. The administrator should also provideinformation about the method for making con-tributions during the leave.

The employer’s obligation to continue makingcontributions respecting the member cannot bemade conditional on the member returning towork after the leave. The continuation ofemployer contributions is an unconditionalright.

The requirements respecting pregnancy, parentaland emergency leave are set out in Part XIV(sections 45 to 53) of the ESA. Plan administra-tors and others involved in the management ofemployee benefits should familiarize themselveswith the general requirements of the ESA.Enquiries regarding these specific requirementsshould be directed to the Employment PracticesBranch, Ministry of Labour, 9th Floor, 400University Avenue, Toronto ON M7A 1T7,telephone (416) 326-2450 or fax (416) 314-7061.

Where the provisions of a pension plan areinconsistent with the pregnancy, parental andemergency leave provisions of the ESA, the planshould be amended to conform with the ESArequirements. In all cases, however, the ESArequirements will apply whether or not the planis so amended.

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Appointment of Administrators – Section 71 of the PBA

1. London Life Insurance Company as the Administrator of the Canadian Sports and FitnessEmployees Pension Plan, (Registration No. 452870), effective immediately.

DATED at Toronto, Ontario, this 14th day of May, 2002.

2. Sun Life Assurance Company of Canada as the Administrator of the Ward Press LimitedEmployees Pension Plan, (Registration No. 583187), effective immediately.

DATED at Toronto, Ontario, this 10th day of May, 2002.

3. Deloitte & Touche Inc. as the Administrator of the Fantom Technologies Inc. Salaried PensionPlan, (Registration No. 910810), effective immediately.

DATED at Toronto, Ontario, this 23rd day of April, 2002.

4. Deloitte & Touche Inc. as the Administrator of the Fantom Technologies Inc. Hourly PensionPlan, (Registration No. 348995), effective immediately.

DATED at Toronto, Ontario, this 23rd day of April, 2002.

5. Canada Life Assurance Company as the Administrator of the 174676 Canada Inc. EmployeesPension Plan, (Registration No. 683201), effective immediately.

DATED at Toronto, Ontario, this 11th day of April, 2002.

6. Arthur Andersen Inc. as the Administrator of the Maksteel Hamilton – Div. of Maksteel Inc.Hourly Employees Pension Plan, (Registration No. 1059146), effective immediately.

DATED at Toronto, Ontario, this 8th day of April, 2002.

7. London Life Insurance Company as the Administrator of the Everest & Jennings EmployeesPension Plan, (Registration No. 527671), effective immediately.

DATED at Toronto, Ontario, this 6th day of March, 2002.

8. Deloitte & Touche Inc. as the Administrator of the Outboard Marine Corp. of Canada Ltd.Pension Plan for Employees, (Registration No. 232967), effective immediately.

DATED at Toronto, Ontario, this 1st day of February, 2002.

9. Deloitte & Touche Inc. as the Administrator of the Outboard Marine Corp. of Canada Ltd.Retirement Plan for Employees, (Registration No. 232975), effective immediately.

DATED at Toronto, Ontario, this 1st day of February, 2002.

10. London Life Insurance Company as the Administrator of the Northern Power Control SystemsLtd. Registered Pension Plan 55606, (Registration No. 978486), effective immediately.

DATED at Toronto, Ontario, this 28th day of January, 2002.

11. Manufacturers Life Insurance Company as the Administrator of the Bracknell Corporation Planfor Salaried & Non-Union Hourly Employees, (Registration No. 956789), effective immediately.


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12. London Life Insurance Company as the Administrator of the Denton Technologies Inc.Retirement Plan for Employees, (Registration No. 1015171), effective immediately.

DATED at Toronto, Ontario, this 21st day of January, 2002.

13. Standard Life Assurance Company as the Administrator of the Bridge Information SystemsCanada Inc. Pension Plan for Employees, (Registration No. 368720), effective immediately.


14. Canada Life Assurance Company as the Administrator of the Pelee Electric Delta RevisedPension Plan for Employees, (Registration No. 363218), effective immediately.


15. Sun Life Assurance Company of Canada as the Administrator of the Binks Sames Canada Ltd.Employees Pension Plan, (Registration No. 578120), effective immediately.

DATED at Toronto, Ontario, this 12th day of November, 2001.

16. Canada Life Assurance Company as the Administrator of the Bono General ConstructionPension Plan for Employees, (Registration No. 499608), effective immediately.

DATED at Toronto, Ontario, this 12th day September, 2001.

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c. 28 (the “Act”);

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act con-senting to a payment out of the Pension Planfor Salaried Employees of MTD Fasteners1995 Ltd., Registration No. 689109;

TO: MTD Products Limited97 Kent AvenueP.O. Box 1386Kitchener ON N2G 4J1

Attention: Mr. John NormanApplicant and Employer

NOTICE OF PROPOSALI PROPOSE TO MAKE AN ORDER unders. 78(4) of the Act, consenting to the paymentout of the Pension Plan for Salaried Employeesof MTD Fasteners 1995 Ltd., Registration No.689109 (the “Plan”), to MTD Products Limitedin the amount of $31,109.00, as at May 31,2001, plus investment earnings thereon to thedate of payment.

I PROPOSE TO MAKE THIS ORDER FORTHE FOLLOWING REASONS:

1. MTD Products Limited is the employer asdefined in the Plan (the “Employer”).

2. The Plan was wound up, effectiveMay 15, 1996.

3. After payment of all entitlements under thepension plan, assets in the amount of$31,109.00 remained in the pension fund, asat May 31, 2001.

4. The Plan provides for the refund to theCompany of expense payments madedirectly by the Company.

5. Evidence of expense payments made direct-ly by the Company in excess of $31,109, asat May 31, 2001, have been submitted to theFinancial Services Commission of Ontario.

6. The application appears to comply withsection 78(4) of the Act.

7. Such further and other reasons as come tomy attention.

In accordance with subsection 105(1) of the Act,an extension of the time limit under subsection78(4) has been given.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to subsection 89(6) of the Act, if, with-in thirty (30) days after this Notice of Proposalis served1 on you, you deliver to the Tribunal awritten notice that you require a hearing.

Your written notice requiring a hearing must bedelivered to:

Financial Services Tribunal14th Floor, 5160 Yonge Street North York ON M2N 6L9

Attn: The Registrar

Notices of Proposal to Make and Order

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1NOTE – PURSUANT TO section 112 of the Act, any notice, order or other document is sufficiently given, served, or deliveredif delivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served,or delivered on the seventh day after mailing.

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IF YOU DO NOT DELIVER TO THETRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OFPROPOSAL IS SERVED ON YOU, AWRITTEN NOTICE THAT YOU REQUIREA HEARING, I MAY MAKE THE ORDERPROPOSED HEREIN.

DATED at Toronto, Ontario, this 13th day ofFebruary, 2002.

K. David GordonDeputy Superintendent, Pension Division

c.c. Mr. Stephen A. Eadie, Robertson,Eadie & Associates

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Pension Planfor Employees of Schrader Automotive(Canada) Inc., Registration No. 0923896;

TO: Schrader Automotive(Canada) Inc.1751 Lake Cook RoadSuite 450Deerfield, Illinois, U.S.A.60015

Attention: John FooteGroup Vice PresidentApplicant and Employer

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER unders. 78(1) of the Act, consenting to the paymentout of the Pension Plan for Employees ofSchrader Automotive (Canada) Inc., RegistrationNo. 0923896 (the “Plan”), to SchraderAutomotive (Canada) Inc. in the amount of$99,218, as at December 31, 1999, plus interestand other adjustments.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that allbenefits, benefit enhancements (includingbenefits and benefit enhancements pursuantto the Surplus Distribution Agreement definedin paragraph 5 below) and any other personsentitled to such payments have been paid,purchased, or otherwise provided for.


1. Schrader Automotive (Canada) Inc. is theemployer as defined in the Plan (the“Employer”).

2. The Plan was wound up, effective December31, 1999.

3. As at August 31, 1996, the surplus in thePlan was estimated at $157,414.

4. The Plan provides for payment of surplus tothe Employer on the wind up of the Plan.

5. The application discloses that by writtenagreement made by the Employer, and100% of the active members and othermembers (as defined in the application) and100% of the former members and other per-sons entitled to payments, the surplus in thePlan at the date of payment, after deductionof wind up expenses is to be distributed:

a) 80% to the Employer; and

b) 20% to the beneficiaries of the Plan asdefined in the Surplus DistributionAgreement.

6. The Employer has applied, pursuant tosection 78 of the Act, and clause 8(1)(b)of the Regulation, for consent of theSuperintendent of Financial Services to thepayment of 80% of the surplus in the Plan(after adding investment earnings anddeducting the expenses related to the windup of the Plan).

7. The application appears to comply withsection 78 and subsection 79(3) of the Actand with clause 8(1)(b) and subsections28(5), 28(5.1) and 28(6) of the Regulation.


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Attn: The Registrar


DATED at Toronto, Ontario, this 21st day ofFebruary, 2002.


c.c. John Marks, William M. Mercer

Volume 11, Issue 2


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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Pension Planof Nickel Development Institute forM.O. Pearce, Registration No. 969220;

TO: Nickel Development Institute214 King St. WestSuite 510eToronto ON M5H 3S6

Attention: Mr. James LillyVice President and TreasurerApplicant and Employer

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER unders. 78(1) of the Act, consenting to the paymentout of the Pension Plan of Nickel DevelopmentInstitute for M.O. Pearce, Registration No.969220 (the “Plan”), to Nickel DevelopmentInstitute in the amount of $45,198, as atApril 1, 2001, plus 100 percent of investmentearnings on the surplus to the date of paymentless 100 percent of expenses relating to thewind up of the Pension Plan of NickelDevelopment Institute for M.O. Pearce.


1. Nickel Development Institute is the employeras defined in the Plan (the “Employer”).

2. The Plan was wound up, effective April 1, 2001.

3. As at April 1, 2001, the surplus in the Planwas estimated at $45,198.

4. The Plan provides for payment of surplus tothe Employer on the wind up of the Plan.

5. The application discloses that by writtenagreement made by the Employer and M.O.Pearce, the sole member of the Plan, thesurplus in the Plan at the date of payment,after deduction of wind up expenses, is to bedistributed 100% to the Employer.

6. The Employer has applied, pursuant tosection 78 of the Act, and clause 8(1)(b) ofthe Regulation, for consent of theSuperintendent of Financial Services to thepayment of 100% of the surplus in the Plan(after adding 100% of investment earningsand deducting 100% of the expenses relatedto the wind up of the Plan) to the Employer.

7. The application appears to comply withsection 78 and subsection 79(3) of the Actand with clause 8(1)(b) and subsections28(5) and 28(6) of the Regulation.

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Pension Bulletin

Volume 11, Issue 3




Attn: The Registrar


DATED at Toronto, Ontario, this 12th day ofMarch, 2002.


c.c. Karen A. Zilli, William M. Mercer Limited



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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “PBA”);

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the PBA relating tothe Pension Plan for UnionizedEmployees of Northern Globe BuildingMaterials (Thorold Division),Registration Number 680405 (formerlyC-104311) (the “Plan”);

TO: Arthur Andersen Inc.4 King Street WestSuite 1050Toronto ON M5H 1B6

Attention: Mr. Lawrence A. ContantAdministrator

AND TO: Striker Paper Canada, Inc.100 Ormond Street SouthP.O. Box 10, Thorold ON L2V 3Y7

Attention: Ms. Patricia Gough, ManagerEmployer

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER in respectof the Plan under section 69(1) of the PBA.

PROPOSED ORDER:

The Pension Plan for Unionized Employees ofNorthern Globe Building Materials, Inc.(Thorold Division), Registration No. 680405(formerly C-104311), be wound up in whole forthose members of the Plan who ceased to beemployed effective between November 30, 1998and February 22, 1999.

REASONS:

1. There was a cessation or suspension ofemployer contributions to the pensionfund, pursuant to clause 69(1)(a) of the PBA.

2. A significant number of members of thepension plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer, pursuant to clause69(1)(d) of the PBA.

3. All or significant portion of the businesscarried on by the employer at a specificlocation was discontinued, pursuant toclause 69(1)(e) of the PBA.

4. Such further reasons as may come to myattention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to s. 89(6) of the PBA. To request ahearing, you must deliver to the Tribunal awritten notice that you require a hearing, with-in thirty (30) days after this Notice of Proposalis served on you.1

Your written notice must be delivered to:

Financial Services Tribunal5160 Yonge Street14th FloorToronto, OntarioM2N 6L9

Attention: The Registrar

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Volume 11, Issue 3

1NOTE – PURSUANT TO section 112 of the Act, any Notice, Order or other document is sufficiently given, served, or deliveredif delivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served,or delivered on the seventh day after the date of mailing.

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Volume 11, Issue 3

FOR FURTHER INFORMATION, contact theRegistrar of the Tribunal by phone at416-226-7752, toll-free at 1-800-668-0128,ext. 7752, or by fax at 416-226-7750.

IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAY MAKETHE ORDER PROPOSED IN THIS NOTICE.

THE ADMINISTRATOR IS REQUIREDpursuant to section 89(5) of the PBA, to trans-mit a copy of this Notice of Proposal to thefollowing persons:

Communications, Energy andPaper Workers Union ofCanada5890 Aspen CourtNiagara Falls ON L2G 7V3

Attention: Mr. Michael LambertNational RepresentativeUnion

BDO Dunwoody LimitedRoyal Bank PlazaP.O. Box 33Toronto ON M5J 2J9

Attention: Mr. Mark ChowReceiver and Trustee inBankruptcy for Striker PaperCanada, Inc.

DATED at North York, Ontario, April 25th, 2002.

K. David GordonDeputy Superintendent, Pensions


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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “Act”);

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Act relating to theMolson Canada Pension Plan for HourlyEmployees in Ontario and AtlanticCanada, Registration Number 0334094(the “Plan”);

TO: MOLSON CANADA33 Carlingview DriveEtobicoke, Ontario M9W 5E4

Attention: Rose VetteseManager, Pension and BenefitsEmployer and Administratorof the Molson CanadaPension Plan for HourlyEmployees in Ontario andAtlantic Canada, RegistrationNumber 0334094

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER in respectof the Plan under section 69 of the Act.

PROPOSED ORDER:

The Molson Canada Pension Plan for HourlyEmployees in Ontario and Atlantic Canada,Registration Number 0334094 (the “Plan”), bewound up in part effective August 31, 2000, inrelation to those members and former members

of the Plan who were employed by Molson Inc.,carrying on business as Molson Canada,formerly Molson Inc., carrying on business asMolson Breweries (the “Employer”) and whoceased to be employed by the Employer effectivebetween October 6, 1999 and August 31, 2000,or the date the Plan member employed by theEmployer ceased employment, whichever islater, as a result of the closure of the breweryplant in Barrie, Ontario.

REASONS FOR THE ORDER:

1. Molson Inc., carrying on business as MolsonCanada, formerly Molson Inc., carryingon business as Molson Breweries, is theemployer and administrator of the Plan.

2. All or a significant portion of the businesscarried on by the Employer at the breweryplant in Barrie, Ontario, was discontinuedbetween October 6, 1999 and August 31,2000, within the meaning of clause 69(1)(e)of the Act.

3. Such further and other reasons as may cometo my attention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to s. 89(6) of the Act. To request ahearing, you must deliver to the Tribunal a writ-ten notice that you require a hearing, withinthirty (30) days after this Notice of Proposal isserved on you.1

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Financial Services Tribunal5160 Yonge Street14th FloorToronto, Ontario M2N 6L9




THE ADMINISTRATOR IS REQUIREDpursuant to subsection 89(5) of the Act, totransmit a copy of this Notice of Proposal to thefollowing persons: all members and formermembers of the Plan who were employed by theEmployer and who ceased to be employed bythe Employer effective between October 6, 1999and August 31, 2000.

DATED at Toronto, Ontario, this 5th day ofMay, 2002.

K. David GordonDeputy Superintendent, Pension Division(or delegated signatory)

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Act relating to theMolson Breweries Pension Plan forOperating Engineers, RegistrationNumber 0390666 (the “Plan”);

TO: MOLSON INC. and CARLINGO’KEEFE BREWERIES OFCANADA LIMITED, carryingon business in partnership asMOLSON CANADA (“MOLSONCANADA”)33 Carlingview DriveEtobicoke, Ontario M9W 5E4

Attention: Rose VetteseManager, Pension and BenefitsEmployer and Administratorof the Molson BreweriesPension Plan for OperatingEngineers, RegistrationNumber 0390666

NOTICE OF PROPOSAL


PROPOSED ORDER:

The Molson Breweries Pension Plan forOperating Engineers, Registration Number0390666 (the “Plan”), be wound up in part

effective August 31, 2000, in relation to thosemembers and former members of the Plan whowere employed by Molson Inc. and CarlingO’Keefe Breweries of Canada Limited, carryingon business in partnership as Molson Canada(the “Employer,” or “Molson Canada”) and whoceased to be employed by Molson Canada effec-tive between October 6, 1999 and August 31,2000, or the date the Plan member employed byMolson Canada ceased employment, whicheveris later, as a result of the closure of the breweryplant in Barrie, Ontario.


1. Molson Canada is the employer andadministrator of the Plan.

2. All or a significant portion of the businesscarried on by Molson Canada at the breweryplant in Barrie, Ontario, was discontinuedbetween October 6, 1999 and August 31,2000, within the meaning of clause 69(1)(e)of the Act.



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Volume 11, Issue 3






THE ADMINISTRATOR IS REQUIRED pur-suant to subsection 89(5) of the Act, to transmita copy of this Notice of Proposal to the follow-ing persons: all members and former membersof the Plan who were employed by MolsonCanada and who ceased to be employed byMolson Canada effective between October 6,1999 and August 31, 2000.




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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Act relating to theMolson Canada Pension Plan for SalariedEmployees, Registration Number 0334086(the “Plan”);


Attention: Rose VetteseManager, Pension and BenefitsEmployer and Administratorof the Molson CanadaPension Plan for SalariedEmployees, RegistrationNumber 0334086

NOTICE OF PROPOSAL


PROPOSED ORDER:

The Molson Canada Pension Plan for SalariedEmployees, Registration Number 0334086 (the“Plan”), be wound up in part effective August31, 2000, in relation to those members and for-mer members of the Plan who were employed

by Molson Inc. and Carling O’Keefe Breweriesof Canada Limited, carrying on business inpartnership as Molson Canada (the “Employer,”or “Molson Canada”) and who ceased to beemployed by Molson Canada effective betweenOctober 6, 1999 and August 31, 2000, or thedate the Plan member employed by MolsonCanada ceased employment, whichever is later,as a result of the closure of the brewery plant inBarrie, Ontario.



2. All or a significant portion of the businesscarried on by Molson Canada at the breweryplant in Barrie, Ontario, was discontinuedbetween October 6, 1999 and August 31,2000, within the meaning of clause 69(1)(e)of the Act.






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FOR FURTHER INFORMATION, contact theRegistrar of the Tribunal by phone at416-226-7752, toll free at 1-800-668-0128,ext. 7752, or by fax at 416-226-7750.


THE ADMINISTRATOR IS REQUIRED pur-suant to subsection 89(5) of the Act to transmita copy of this Notice of Proposal to the follow-ing persons: all members and former membersof the Plan who were employed by MolsonCanada and who ceased to be employed byMolson Canada effective between October 6,1999 and August 31, 2000.



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Attention: Rose VetteseManager, Pension and Benefits Employer and Administratorof the Molson CanadaPension Plan for SalariedEmployees, RegistrationNumber 0334086

NOTICE OF PROPOSAL


PROPOSED ORDER:

The Molson Canada Pension Plan for SalariedEmployees, Registration Number 0334086 (the“Plan”), be wound up in part effectiveDecember 31, 1997, in relation to those mem-bers and former members of the Plan who wereemployed by Molson Inc. and Carling O’KeefeBreweries of Canada Limited, carrying on busi-ness in partnership as Molson Canada (the“Employer,” or “Molson Canada”) and who

ceased to be employed by Molson Canadaeffective between December 18, 1995 andDecember 31, 1997 or the date the Plan memberemployed by Molson Canada ceased employ-ment, whichever is later, as a result of:

i) the reorganization of the business of MolsonCanada; or

ii) the discontinuance of all or a significantportion of the business carried on byMolson Canada at one or more specificlocations.



2. A significant number of members of thePlan ceased to be employed by MolsonCanada as a result of the reorganization ofthe business of Molson Canada effectivebetween December 19, 1995 and December31, 1997, within the meaning of clause69(1)(d) of the Act. This reorganizationincluded: the decentralization measurestaken in Ontario in 1995 and 1996; thedecentralization measures taken in Quebecin 1996 and 1997; and the closure of theWinnipeg, Manitoba brewery in 1997.

3. All or a significant portion of the businesscarried on by Molson Canada at one ormore specific locations was discontinuedbetween December 19, 1995 and December31, 1997, within the meaning of clause69(1)(e) of the Act.


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THE ADMINISTRATOR IS REQUIRED pur-suant to subsection 89(5) of the Act to transmita copy of this Notice of Proposal to the follow-ing persons: all members and former membersof the Plan who were employed by MolsonCanada and who ceased to be employed byMolson Canada effective between December 19,1995 and December 31, 1997.



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TO: MOLSON INC. and CARLINGO’KEEFE BREWERIES OFCANADA LIMITED, carryingon business in partnership asMOLSON CANADA (“MOLSONCANADA”)33 Carlingview DriveEtobicoke, OntarioM9W 5E4

Attention: Rose VetteseManager, Pension and BenefitsEmployer and Administratorof the Molson CanadaPension Plan for SalariedEmployees, RegistrationNumber 0334086

NOTICE OF PROPOSAL


PROPOSED ORDER:

The Molson Canada Pension Plan for SalariedEmployees, Registration Number 0334086 (the“Plan”), be wound up in part effective May 23,2001, in relation to those members and formermembers of the Plan who were employed byMolson Inc. and Carling O’Keefe Breweries of

Canada Limited, carrying on business as MolsonCanada (the “Employer,” or “Molson Canada”)and who ceased to be employed by MolsonCanada effective between September 8, 1999and May 23, 2001, or the date the Plan memberemployed by Molson Canada ceased employ-ment, whichever is later, as a result of thereorganization of the business of the MolsonCanada.



2. A significant number of members of thePlan ceased to be employed by MolsonCanada as a result of the reorganization ofthe business of Molson Canada within themeaning of clause 69(1)(d) of the Act,effective between September 8, 1999 andMay 23, 2001.

3. All or a significant portion of the businesscarried on by Molson Canada at one ormore specific locations was discontinuedbetween September 8, 1999 and May 23,2001, within the meaning of clause 69(1)(e)of the Act.



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Pension Bulletin

Volume 11, Issue 3


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THE ADMINISTRATOR IS REQUIRED pur-suant to subsection 89(5) of the Act to transmita copy of this Notice of Proposal to the follow-ing persons: all members and former membersof the Plan who were employed by MolsonCanada and who ceased to be employed byMolson Canada effective between September 8,1999 and May 23, 2001.



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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Pension Planfor Salaried Employees of Newman SteelLtd. and its Associated Companies,Registration No. 283481;

TO: PricewaterhouseCoopers Inc.c/o Blake, Cassels & Graydon LLPBox 25, Commerce Court West199 Bay StreetToronto ON M5L 1A9

Attention: Elizabeth BoydCounsel toPricewaterhouseCoopers Inc.

Reesha HoseinCounsel toPricewaterhouseCoopers Inc.Applicant and receiverand manager of NewmanSteel Ltd.

KPMG Inc. Suite 3300, Commerce Court WestP.O. Box 31 Stn. Commerce CourtToronto ON M5L 1B2

Attention: Michael CreberSenior Vice-PresidentPlan Administrator

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER unders. 78(1) of the Act, consenting to the paymentout of the Pension Plan for Salaried Employeesof Newman Steel Ltd. and its AssociatedCompanies, Registration No. 283481 (the

“Plan”), to PricewaterhouseCoopers Inc. in theamount of $206,400 (representing 40% of thesurplus of $516,000 determined to be in thePlan as at November 4, 1991), plus the gains(net losses) thereon from November 4, 1991 tothe date of payment, less 40% of all expensesincurred in connection with the administrationof the wind up of the Plan, including, withoutlimitation, 40% of the reasonable legal andactuarial fees and expenses of those Plan mem-bers included in the surplus sharing group whoare represented by Anthony Wellenreiter of thelaw firm Wellenreiter & Wellenreiter.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that allbenefits, benefit enhancements (including ben-efits and benefit enhancements pursuant to theSurplus Sharing Agreement described in para-graph #5 below) and any other payments towhich the members, former members, and anyother persons entitled to such payments havebeen paid purchased, or otherwise provided for.


1. Newman Steel Ltd., the company whichsponsored the Plan, was placed in receiver-ship on October 2, 1991.PricewaterhouseCoopers Inc. was appointedreceiver and manager of Newman Steel Ltd.on that date.

2. Newman Steel Ltd. was adjudged bankrupton December 5, 1991, with Arthur AndersenInc. being appointed trustee in bankruptcy.Arthur Andersen Inc., who was dischargedas trustee in bankruptcy on April 24, 1997,has stated that it has no interest in thesurplus assets of the Plan.

3. The Plan was wound up, effectiveNovember 4, 1991.

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4. As at November 4, 1991, the surplus in thePlan was estimated at $516,000. The Planprovides for payment of surplus to theEmployer on the wind up of the Plan.

5. The application discloses that by writtenagreement made by the Applicant, 85.7% ofthe Ontario members and 86.67% of Quebecmembers, and 100% of the former membersin Ontario and 75% of annuitants inQuebec, the surplus in the Plan at the dateof payment, after deduction of wind upexpenses and other adjustments describedin 6. below, is to be distributed:

a) 40% to the Employer; and

b) 60% to the beneficiaries of the Plan asdefined in the Surplus DistributionAgreement.

6. The applicant has provided certification thatthe application complies with the require-ments of the Quebec Supplemental PensionPlans Act. Ten of the Quebec members andannuitants did not consent to the SurplusSharing Agreement. These represent lessthan 30% of the 57 Quebec members andannuitants entitled to payments under thePlan.

7. The Employer has applied, pursuant tosection 78 of the Act, and clause 8(1)(b) ofthe Regulation, for consent of theSuperintendent of Financial Services to thepayment of 40% of the surplus in the Plan(after adding 40% of investment earningsand deducting 40% of the expenses relatedto the wind up of the Plan and 40% of thefees and expenses of those Plan membersrepresented by Anthony Wellenreiter).

8. The application appears to comply withsection 78 and subsections 79(3)(a) and79(3)(b) of the Act, and with clause 8(1)(b)and subsections 28(5), 28(5.1) and 28(6) ofthe Regulation.





Attn: The Registrar




c.c. Mr. Husein DjukP.O. Box 312North Rustico PEIC0A 1X0

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act con-senting to a payment out of the WajaxIndustries Limited Pension Plan,Registration No. 281006;TO: Wajax Limited

3280 Wharton WayMississauga, Ontario L4X 2C5

Attention: Barbara HaddadManager, Compensation &BenefitsApplicant and Employer

NOTICE OF PROPOSALI PROPOSE TO MAKE AN ORDER unders. 78(4) of the Act, consenting to the paymentout of the Wajax Industries Limited PensionPlan, Registration No. 281006 (the “Plan”), toWajax Limited in the amount of $21,160.44,as at November 30, 2001, plus investmentearnings thereon to the date of payment.

I PROPOSE TO MAKE THIS ORDER FORTHE FOLLOWING REASONS:1. Wajax Limited is the employer as defined in

the Plan (the “Employer”).

2. The actuarial report effective January 1,2001, has been filed and indicates a surplusof $11,152,000 on a solvency basis. Theactuary has certified that the Employer isnot able to make any normal actuarial costcontributions with respect to the definedbenefit provisions of the Plan until suchexcess surplus has been drawn down.

3. The Employer made a total of three overpay-ments into the pension fund on June 18,2001 in the amount of $8,580.82, on June18, 2001 in the amount of $8,694.04 and onJuly 26, 2001 in the amount of $3,885.58.

4. Evidence of the overpayment to the fund forthe months of June and July 2001 have beensubmitted to the Financial ServicesCommission of Ontario.

5. The application appears to comply withsection 78(4) of the Act.





Attn: The Registrar


DATED at Toronto, Ontario, this 10th day ofJune, 2002.


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Volume 11, Issue 3


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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, R.S.O.1997, c. 28;

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997,c. 28, respecting the Staff Pension Plan forHourly Paid Employees of VulcanPackaging Inc. (the “Pension Plan”),Registration Number 0379214;

TO: Morneau Sobeco as agent for Deloitte & Touche Inc.1500 Don Mills Road Suite 500Toronto ON M3B 3K4

Attention: Mr. Al KielPartnerAdministrator of the StaffPension Plan for Hourly PaidEmployees of VulcanPackaging Inc.

AND TO: Vulcan Packaging Inc.15 Bethridge Road Rexdale ON M9W 1M6

Attention: Mr. Alex TelferPresidentEmployer

AND TO: Ernst & Young Inc.175 Commerce Valley Drive WestSuite 600Thornhill ON L3T 7P6

Attention: Mr. Harold ReiterTrustee in Bankruptcy,Vulcan Packaging Inc.

AND TO: CAW Local 1008467 St. Clair StreetChatham ON N7L 3K6

Attention: Mr. Joe McCabeUnion

NOTICE OF PROPOSAL TO MAKEA DECLARATION

WHEREAS:

1. The Staff Pension Plan for Hourly PaidEmployees of Vulcan Packaging Inc.,Registration No. 0379214 (the “PensionPlan”), is registered under the PensionBenefits Act, R.S.O. 1990, c. P.8 as amendedby the Financial Services Commission ofOntario Act, 1997, c. 28, (the “Act”); and

2. The Pension Plan provides defined benefitsthat are not exempt from the application ofthe Pension Benefits Guarantee Fund (the“Guarantee Fund”) by the Act or the regula-tions made thereunder; and

3. The Pension Plan was wound up effectiveMay 15, 1997; and

4. The Superintendent of Pensions appointedDeloitte & Touche Inc. as the administrator(the “Administrator”) of the Pension Planon August 1, 1997.

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Pension Bulletin


Notices of Proposal to Make a Declaration

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NOW THEREFORE TAKE NOTICE I proposeto consider to make a declaration pursuant tosection 83 of the Act that the Guarantee Fundapplies to the Pension Plan for the followingreasons:

1. The Supplement to the Actuarial ValuationReport filed by the Administrator indicatesan estimated funding deficiency of $861,100as at August 1, 2001 and an estimated claimagainst the Guarantee Fund as at August 1,2001 of $768,500.00.

2. Ernst & Young Inc. was appointed Trustee inBankruptcy of Vulcan Packaging Inc. onMay 15, 1997.

3. The Administrator has advised that theyfiled a proof of claim for the asset shortfallbut is of the opinion that no recovery willbe realized on the proof of claim.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to subsection 89(6) of the Act, if, with-in thirty (30) days after this Notice of Proposalis served on you, you deliver to the Tribunal awritten notice that you require a hearing.1

Any notice requiring a hearing shall bedelivered to:

Financial Services Tribunal5160 Yonge Street14th FloorNorth York ON M2N 6L9


IF YOU DO NOT DELIVER TO THETRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OFPROPOSAL IS SERVED ON YOU, AWRITTEN NOTICE THAT YOU REQUIREA HEARING, I MAY MAKE THEDECLARATION PROPOSED HEREIN.

DATED at North York, Ontario, this 12th day ofFebruary, 2002.


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1NOTE – PURSUANT TO section 112 of the Act, any Notice, Order or other document is sufficiently given, served, or deliveredpersonally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served, or delivered onthe seventh day after the day of mailing.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997,c. 28, respecting the Revised Pension Planfor Employees of the Employer, (the“Pension Plan”), Registration Number0224923;

TO: The Canada Life AssuranceCompany330 University Avenue Toronto ON M5G 1R8

Attention: Ms. Milica StojsinPlan Wind-up ConsultantAdministrator of the RevisedPension Plan for Employeesof the Employer

AND TO: Brown & Collett Limited2365 Matheson Blvd.Mississauga ON L4W 5C2

Attention: Mr. R.W. Bernard ControllerEmployer

AND TO: PricewaterhouseCoopers Inc. (formerly Price WaterhouseLimited)5700 Yonge Street Suite 1900North York ON M4M 4K7

Attention: Mr. Craig Munro Receiver and Trustee inBankruptcy, Brown & CollettLimited


WHEREAS:

1. The Revised Pension Plan for Employees ofthe Employer, Registration No. 0224923 (the“Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8 asamended by the Financial ServicesCommission of Ontario Act, 1997, c. 28, (the“Act”); and


3. The Pension Plan was wound up effectiveMarch 1, 1996; and

4. The Superintendent of Pensions appointedCanada life Assurance Company as theadministrator (the “Administrator”) of thePension Plan on June 10, 1996.


1. The Supplement to the Actuarial Reportfiled by the Administrator indicates an esti-mated claim against the Guarantee Fund of$436,300 as at March 1, 2002.

2. PricewaterhouseCoopers Inc. was appointedTrustee in Bankruptcy of Brown & CollettLimited on March 1, 1996 and as Receiveron April 22, 1996.

3. The Trustee in Bankruptcy has advised theAdministrator that there are no funds avail-able from the estate of Brown & CollettLimited to make payment to the PensionPlan.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997,c. 28, respecting the Retirement Plan forSalaried Employees of Airvector Inc.(the “Pension Plan”), RegistrationNumber C-9339;

TO: Deloitte & Touche Inc.c/o Morneau Sobeco1500 Don Mills Road Suite 500Toronto ON M3B 3K4

Attention: Mr. Al KielPartnerAdministrator of theRetirement Plan for SalariedEmployees of Airvector Inc.

AND TO: Airvector Inc.201 Speers RoadP.O. Box 430Oakville ON L6J 5A8

Attention: Camile AdibPresidentEmployer


WHEREAS:

1. The Retirement Plan for Salaried Employeesof Airvector, Registration No. C-9339 (the“Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8 asamended by the Financial Services

Commission of Ontario Act, 1997, c. 28,(the “Act”); and


3. The Pension Plan was wound up effectiveDecember 31, 1986 by the Employer; and

4. The Superintendent of Pensions appointedDeloitte & Touche Inc. as the administrator(the “Administrator”) of the Pension Planon March 20, 1997.


1. The Addendum to the SupplementalActuarial Report filed by the Administratorindicates an estimated claim against theGuarantee Fund of $258,900.00 as atDecember 31, 2001.

2. The place of business of the Employer isclosed due to the bankruptcy of theEmployer.

3. The Administrator has advised that since theEmployer is no longer in business, there areno further funds expected from theEmployer or from any other sources for thePension Plan.


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DATED at North York, Ontario, this 1st day ofMarch, 2002.


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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c. 28;

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c. 28,respecting the Gallaher Thorold Paper Co.Salaried Pension Plan, RegistrationNumber 1039999;

TO: Arthur Andersen Inc.Suite 10504 King Street WestToronto ON M5H 1B6

Attention: Mr. David R. KearneyAdministrator

Gallaher Thorold Paper Co. 67 Front Street North Thorold ON L2V 3Z7

Attention: Mr. David Rennie Vice President, Human ResourcesEmployer

Ernst & Young Inc.Ernst & Young TowerP.O. Box 251, 222 Bay StreetToronto-Dominion CentreToronto ON M5K 1J7

Attention: Mr. Felix HsuManagerTrustee in Bankruptcy forGallaher Thorold Paper Co.


WHEREAS:

1. The Gallaher Thorold Paper Co. SalariedPension Plan, Registration Number 1039999(the “Plan”), is registered under the PensionBenefits Act, R.S.O. 1990, c. P.8, as amendedby the Financial Services Commission ofOntario Act, 1997, S.O. 1997, c. 28 (the“Act”); and

2. The Plan provides defined benefits that arenot exempt from the application of thePension Benefits Guarantee Fund (the“Guarantee Fund”) by the Act or the regula-tions made thereunder; and

3. The Superintendent of Pensions issued anOrder that the Plan be wound up effectiveMay 25, 1999; and

4. The Superintendent of the Financial ServicesCommission appointed Arthur AndersenInc. as the administrator (the “Admin-istrator”) of the Plan on September 27, 1999.

NOW THEREFORE TAKE NOTICE thatI propose to consider to make a declarationpursuant to section 83 of the Act that theGuarantee Fund applies to the Plan for thefollowing reasons:

1. The funded ratio of the Plan has beenestimated to be 55.46%.

2. The employer, Gallaher Thorold Paper Co.,was assigned into bankruptcy on June 15, 1999.

3. The trustee in bankruptcy for GallaherThorold Paper Co. has advised theAdministrator that there are no funds avail-able from the estate of Gallaher ThoroldPaper Co. to make payment to the Plan.

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4. The Administrator advised that it is of theopinion that there are reasonable and prob-able grounds for concluding that the fund-ing requirements of the Act and regulationcannot be satisfied.



Financial Services Tribunal5160 Yonge Street14th FloorNorth York, Ontario M2N 6L9



DATED at North York, Ontario, this 2nd dayof April, 2002.

K. David GordonDeputy Superintendent, Pension DivisionFinancial Services Commission of Ontario

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1NOTE – PURSUANT TO section 112 of the Act, any Notice, Order or other document is sufficiently given, served, or deliveredif delivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served,or delivered on the seventh day after the day of mailing.

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Refuseto Make an Order under section 89(2)(e) of theAct relating to the Ontario Teachers’Pension Plan, Registration Number0345785 (the “Plan”);

TO: Donna Marie Sloanc/o Koskie MinskyBarristers & Solicitors20 Queen Street WestSuite 900, Box 52Toronto, Ontario M5H 3R3

Attention: Ari N. KaplanCounsel to the Complainant

AND TO: Teachers’ Pension Plan Board5650 Yonge StreetToronto, Ontario M2M 4H5

Attention: Anne SlivinskasCounsel to the Plan

NOTICE OF PROPOSAL

I PROPOSE TO REFUSE TO issue a Notice ofProposal to make an Order under sections87(2)(a) and (c) of the Act requiring the admin-istrator of the Plan (the “Board”) to complywith subsections 45(3) and 48(1), (3) and (10)of the Act.

REASONS:

1. Mrs. Donna Marie Sloan (the “claimant”)was the recipient of a survivor pre-retire-ment death benefit from the Plan in respectof the pensionable service of the deceasedmember, Patrick Sloan (the “member”).

2. The member and the claimant had beenmarried in 1964 and had four children. Themember died on June 1, 1993. At the timeof the member’s death, one of the childrenqualified as a “dependent child” within themeaning of the Plan.

3. In August 1993, the claimant applied for asurvivor pre-retirement death benefit. Theadministrator’s files showed the couple asseparated. The Board therefore initiated aninquiry into the claimant’s marital status.In a letter dated October 23, 1993, a repre-sentative of the Board requested that theclaimant provide the Board with a swornaffidavit regarding the marital relationshipwhich included “the dates of separation, thenature of the separation, and any otherinformation that [she] may feel is relevant.”

4. The claimant sent the Board a commis-sioned solemn declaration sworn by her onOctober 22, 1993, attached to which was aletter in which she stated that while she hadmoved out of the matrimonial home in May1991 due to the member’s alcohol abuse,she and the member still spent time togeth-er, shared meals and continued to receiveprofessional counselling. She stated that shehad continued to do household chores atboth residences. She also continued toreceive mail at the matrimonial home. Asupporting letter was sent to the Board fromher former clergyman.

5. On the basis of the information provided bythe claimant in the sworn declaration, theBoard concluded that the marital relation-ship had not come to an end and paid thepension benefit in respect of the member’sservice to the claimant.

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6. The Board subsequently received a copy of apetition for divorce which had been filed bythe claimant in May 1993. The affidavitaccompanying the petition stated that theparties had been separated since November1990, that there was no reasonable prospectof reconciliation, and that the memberwas living in the matrimonial home with agirlfriend.

7. On the basis of the May 1993 affidavit, theBoard determined that the claimant was notentitled to spousal death benefits after all.The claimant’s pension was terminatedeffective December 1999 and the Boardadvised her that it would be taking steps torecover the pension benefits paid to herbetween 1993 and 1999 and to redistributeit to the dependent child or otherwise asrequired by the Act and the Plan.

8. The claimant, through her counsel submitsthat the Board is precluded from reversingits original decision by virtue of the dis-charge provisions in section 45(3) and48(10) of the Act and that, in any event, shewas not living separate and apart from themember at the time of his death and that,even if she was, the Board is estopped fromterminating the pension on the basis ofdelay or some other limitation period.

9. The Board is under a statutory obligation toensure that the Plan is administered inaccordance with the Act, Regulation 909,R.R.O. 1990, as amended (the “Regulations”)and the Plan. The Act and the Plan bothrequire that for a spouse to be eligible for apre-retirement spousal benefit the spouseand the member must not be living separateand apart at the time of the member’s death.This involves a factual determination basedon the evidence. If the spouses are living

separate and apart, the pension benefit ofthe deceased member must be distributed inaccordance with the Act and the Plan (i.e.,to include the dependent children of thedeceased member, if any).

10. Sections 45(3) and 48(10) do not operate toprevent the Board from reversing its originaldecision with respect to the claimant’s mari-tal status. “To be discharged” means to berelieved of obligation or liability. The pur-pose of the discharge provisions is to relievea plan administrator from further responsi-bility on paying the pension or pensionbenefit if it is paid based upon the informa-tion provided by the recipient. The exis-tence of the statutory “safe harbour” in sec-tions 45(3) and 48(10) does not preclude aplan administrator from revisiting and, ifnecessary reversing, a decision with respectto benefit entitlement if it discovers that thefacts on which it based its original decisionwere inaccurate or incomplete. The Act doesnot impose any time limits or other con-straints on an administrator in this regard.

11. There is no evidence that the Board, inreversing its original decision, breached itsfiduciary obligations to the claimant by tak-ing into account irrelevant considerations orfailing to take into account relevant consid-erations or making a decision that was sounreasonable that no plan administrator,properly directing him- or her-self couldever have reached it.

12. In the absence of any contravention of theAct, the Regulations or the Plan, there is nobasis to issue a Notice of Proposal to makean Order under sections 87(2)(a) and/or (c)of the Act.

13. Such further reasons as may come to myattention.

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IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAYREFUSE TO MAKE THE ORDER ASPROPOSED IN THIS NOTICE.

DATED at North York, Ontario, this 4th day ofMarch, 2002.


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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Refuseto Approve the actuarial report on the partialwind up submitted by Bauer Nike Hockey Inc.to the Superintendent of Financial Servicesunder sections 70(5) and 89(4) of the Act inrespect of the Pension Plan for Employeesof Bauer Nike Hockey Inc., RegistrationNumber 257337 (the “Plan”);

TO: Bauer Nike Hockey Inc.6185 McLaughlin RoadMississauga, ON L5R 3W7

Attention: Lorraine BantonCorporate Director, HumanResourcesEmployer and Administratorof the Plan

NOTICE OF PROPOSAL

I PROPOSE TO REFUSE TO APPROVE theactuarial report prepared on December 23, 1998in respect of the partial wind up of the Plan as at November 1, 1998 (the “Report”), undersections 70(5) and 89(4) of the Act.

REASONS:

1. Bauer is the employer and administrator ofthe Plan.

2. Bauer decided to partially wind up the Planand submitted the Report to theSuperintendent of the Financial ServicesCommission of Ontario in February 1999,for approval.

3. The partial wind up arose as a result of theclosure of Bauer’s location at 445 DobbieDrive, in Cambridge, Ontario (the“Closure”).

4. As a result of the Closure, 275 members ofthe Plan were laid off during the periodfrom November 18, 1997 to May 22, 1998(the “Partial Windup Group”).

5. Bauer filed the Report on February 3, 1999.

6. The Report indicates that it reflects thegrow-in benefit provisions set out in section74(1) of the Act.

7. Section 74(1) of the Act provides certainbenefits to plan members whose combina-tion of age and continuous employment ormembership in the plan equals at least fifty-five (55), upon the wind up of a pensionplan. These members may receive a pensionin accordance with the terms of the plan.Where the consent of the employer is arequirement for eligibility for an ancillarybenefit, such as the Early RetirementProvisions of the Plan (as defined below),section 74(7) of the Act deems the employerto have given that consent.

8. Section 5.3 (c) of the Plan provides, at thediscretion of Bauer, for a special unreducedearly retirement pension for long-servingPlan members, defined for the purpose ofthis section as a member who has complet-ed thirty (30) years of service, or a memberwhose combination of age and years of ser-vice with the company adds up to at leasteighty (80) years (the “Early RetirementProvisions of the Plan”).

9. Pursuant to section 74(1)(a) of the Act, andpursuant to the terms of the Plan, thosemembers of the Plan whose combination ofage plus years of continuous employment ormembership in the Plan equalled at leastfifty-five (55) at the effective date of thewind up have a right to immediately receivean unreduced early retirement pension inaccordance with the Early Retirement

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Provisions of the Plan provided they areeligible for immediate payment of thepension benefit.

10. Pursuant to section 74(1)(b) of the Act, andpursuant to the terms of the Plan, thosemembers of the Plan whose combination ofage plus years of continuous employment ormembership in the Plan equalled at leastfifty-five (55) at the effective date of thewind up have a right to receive an unre-duced early retirement pension beginning atthe earliest date when they would havecompleted thirty (30) years of service orattained a combination of age and years ofservice equal to at least eighty (80) (the“Grow-in Benefits”).

11. The Report fails to reflect the EarlyRetirement Provisions of the Plan and theGrow-In Benefits provided under section74(1) of the Act.

12. The Report identifies $244,406 in surplusassets related to the Partial Wind Up Group,as at January 1, 1998.

13. The Report indicates (at p. 1 and at p. 16)that Bauer intends to leave any excess assetsattributable to the Partial Wind Up Group inthe Plan.

14. The Report fails to provide for the distribu-tion of the surplus assets related to the par-tial wind up group, as required by the Act.Partial wind up is defined under the Act as“the termination of part of a pension planand the distribution of the assets related tothat part of the pension plan.”

15. Subsection 70(6) of the Act states that “onthe partial wind up of a pension plan, mem-bers, former members and other personsentitled to benefits under the pension planshall have rights and benefits that are notless than the rights and benefits on the fullwind up of a pension plan on the effectivedate of the partial wind up.”

16. As a result, the Report does not meet therequirements of the Act and regulationsand does not protect the interests of themembers and former members of thepension plan.

17. Section 70(5) of the Act states that theSuperintendent may refuse to approve awind up report that does not meet therequirements of the Act and the regulationsor that does not protect the interests ofthe members and former members of thepension plan.



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IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAYREFUSE TO APPROVE THE REPORT FORTHE REASONS OUTLINED IN THISNOTICE.

DATED at North York, Ontario, March 8th, 2002.


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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Act relating to theGallaher Thorold Paper Co. SalariedPension Plan, Registration Number1039999 (the “Plan”);

TO: Arthur Andersen Inc.1 King Street WestSuite 1050Toronto ON M6H 1B6

Attention: Mr. Lawrence A. ContantAdministrator

AND TO: Gallaher Thorold Paper Co. 67 Front Street NorthThorold ON L2V 3Z7

Attention: Mr. David Rennie Vice-President, Human ResourcesEmployer

ORDER

ON December 10, 2001, the Superintendent ofFinancial Services issued a Notice of Proposal toMake an Order dated December 3, 2001, to theEmployer and to the Administrator of theGallaher Thorold Paper Co. Salaried PensionPlan, Registration Number 1039999 (the“Plan”), pursuant to section 69(1) of the Act,that the Plan be wound up in whole effectiveMay 25, 1999.

NO REQUEST for a hearing has been receivedby the Financial Services Tribunal in connectionwith this matter.

I THEREFORE ORDER that the Plan bewound up in whole effective May 25, 1999.

REASONS:

1. There was a cessation or suspension ofemployer contributions to the pensionfund, pursuant to clause 69(1)(a) of the Act.

2. The employer failed to make contributionsto the pension fund as required by the Actor the regulations, pursuant to clause69(1)(b) of the Act.

3. A significant number of members of thePension Plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer, pursuant to clause69(1)(d) of the Act.

4. All or a significant portion of the businesscarried on by the employer at a specific loca-tion was discontinued, pursuant to clause69(1)(e) of the Act.


Tom GolfettoDirector, Pension Plans Branch By Delegated Authority fromSuperintendent of Financial Services

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AND IN THE MATTER OF a Proposal of aSuperintendent of Financial Services to Make anOrder pursuant to section 69 of the Act, respectingthe Pension Plan for Limitorque ofCanada Ltd., Registration No. 979187;

TO: Canadian WorchesterControls Limited (formerly known as Limitorque ofCanada Ltd.)c/o Invensys Inc.33 Commercial StreetB52-S1 Foxboro, Massachusetts 02035U.S.A.

Attention: Ms. Allyn JeromeBenefits SpecialistEmployer and Administratorof the Plan

ORDERON June 13, 2001, the Superintendent ofFinancial Services issued a Notice of Proposal toMake an Order that the Pension Plan forLimitorque of Canada Ltd., Registration No.979187 (the “Plan”), be wound up in part,pursuant to section 69 of the Act, in relation tothose members and former members of the Planwho were employed by Limitorque of CanadaLtd. (the “Employer”) and who ceased to beemployed by the Employer, effective betweenFebruary 1, 1995 and January 31, 1996, or thedate the last Plan member employed by theEmployer ceased employment, whichever islater, and as a result of:

(i) the discontinuance of all or part of thebusiness of the Employer; or

(ii) the discontinuance of all or a significantportion of the business carried on by theEmployer at a specific location.


I THEREFORE ORDER that, pursuant to sec-tion 69 of the Act, the Plan be wound up in partin relation to those members and former mem-bers of the Plan who were employed by theEmployer and who ceased to be employed bythe Employer effective between February 1, 1995and January 31, 1996, or the date the last Planmember employed by the Employer ceased em-ployment, whichever is later, and as a result of:

(i) the discontinuance of all or part of thebusiness of the Employer; or

(ii) the discontinuance of all or a significantportion of the business carried on by theEmployer at a specific location.

REASONS:

1. Limitorque of Canada Ltd. is the Employerand administrator of the Plan.

2. A significant number of members of thePlan ceased to be employed by the Employeras a result of the discontinuance of all orpart of the business of the Employerbetween February 1, 1995 and January 31,1996 within the meaning of s. 69(1)(d) ofthe Act.

3. All or a significant portion of the businesscarried on by the Employer at a specificlocation was discontinued between February1, 1995 and January 31, 1996, within themeaning of s. 69(1)(e) of the Act.

DATED at North York, Ontario, this 28th day ofMarch, 2002.

Tom GolfettoDirector, Pension Plans BranchBy Delegated Authority fromthe Superintendent of Financial Services

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IN THE MATTER OF the Pension Benefits ActR.S.O. 1990, c. P.8, as amended (the “Act”);

AND IN THE MATTER OF a Proposal of theDeputy Superintendent, Pensions, to Make anOrder pursuant to section 69 of the Act, respect-ing The Pension Plan for the Employeesof Genicom Canada Inc., RegistrationNo. 924829 (the “Plan”);

TO: Mackenzie FinancialCompany150 Bloor Street W., Suite M111Toronto ON M5S 3B5

Attention: Ms. Grace Tait Senior Pension AnalystAdministrator

AND TO: Genicom Canada Inc.7 Paget RoadBrampton ON L6T 5S2

Attention: Beverley GardnerPayroll AdministratorEmployer

ORDER

ON January 10, 2002, the Deputy Super-intendent, Pensions, issued a Notice of Proposalto Make an Order dated December 21, 2001, tothe Employer and to the Administrator of thePension Plan for the Employees of GenicomCanada Inc., Registration No. 924829 (the“Plan”), pursuant to section 69(1) of the Actthat the Plan be wholly wound up effectiveOctober 12, 2000 through November 30, 2000.


I THEREFORE ORDER, pursuant to section69(1) of the Act, that the Plan be wholly woundup effective October 12, 2000 throughNovember 30, 2000.

REASONS:

1. There was a cessation or suspension ofemployer contributions to the pensionfund, within the meaning of clause 69(1)(a)of the Act.

2. The employer is bankrupt within the mean-ing of the Bankruptcy and Insolvency Act(Canada). R.S.C. 1985, c. B-3, as amended.

3. All or part of the employer’s business or allor part of the assets of the employer’s busi-ness were sold, assigned or otherwise dis-posed of and the person who acquired thebusiness or assets did not provide a pensionplan for the members of the employer’sPension Plan who became employees of theperson.

THE ADMINISTRATOR IS REQUIRED pur-suant to section 69(2) of the Act, to give noticeof this Order to the following persons:

Deloitte & Touche Inc.c/o Morneau Sobeco as Agents1500 Don Mills RoadSuite 500Toronto ON M3B 3K4

Attn: B. Bethune Whiston Principal Receiver and Trustee inBankruptcy for GenicomCanada Inc.

DATED at North York, Ontario, this 1st day ofMarch, 2002.


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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder pursuant to section 69 of the Act, respect-ing the Employee Retirement Plan for theEmployees of Bestway Truck CentreDivision of 604888 Ontario Inc.,Registration No. 0958942;

TO: London Life InsuranceCompanyGroup Retirement Services255 Dufferin AvenueLondon ON N6A 4K1

Attention: Nancy Galpin Windup SpecialistAdministrator

AND TO: Bestway Truck CentreDivision of 604888 OntarioInc.P.O. Box 1170, North BayStn. Main,Highway 11s at Fisher StreetNorth Bay ON P1B 8K4

Attention: Peter Woodgate, Office Manager Employer

ORDER

ON January 7, 2002, the Superintendent ofFinancial Services issued a Notice of Proposal toMake an Order dated December 21, 2001, to theEmployer and to the Administrator of theEmployee Retirement Plan for the Employees ofBestway Truck Centre Division of 604888Ontario Inc., Registration No. 0958942 (the“Plan”), pursuant to section 69(1) of the Act towind up the Plan in whole.


I THEREFORE ORDER that the Plan bewound up in whole effective March 1, 2000, forthe following reasons:

REASONS:

There was a cessation or suspension of employercontributions to the pension fund, pursuant toclause 69(1)(a) of the Act.

THE ADMINISTRATOR IS REQUIREDpursuant to section 69(2) of the Act, to givenotice of this Order to the following persons:

PricewaterhouseCoopers Inc.5700 Yonge St., Suite 1900North York ON M2M 4K7

Attn: David FiliceVice President Receiver and Manager forBestway Truck Centre Division of 604888 OntarioInc.

A. Farber & Partners Inc.1200 Sheppard Ave. EastNorth York ON M2K 2R8

Attn: Avron MintzTrustee In Bankruptcy for BestwayTruck Centre Division of 604888 OntarioInc.

DATED at North York, Ontario, 11th day ofMarch, 2002.


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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder pursuant to section 69 of the Act, respect-ing the Retirement Plan Sponsored byDiversified International ProductsLimited for Bruce McLarty, RegistrationNo. 1022482;

TO: William M. Mercer LimitedBCE Place, 161 Bay StreetP.O. Box 501Toronto ON M5J 2S5

Attention: William K. SimonActuaryAdministrator

AND TO: Diversified InternationalProducts Limited66 West Wilmont Street Richmond Hill ON L4B 1H8

Attention: Bruce McLarty President Employer

ORDER

ON February 1, 2002, the Superintendent ofFinancial Services issued a Notice of Proposal toMake an Order dated November 13, 2001, tothe Employer and to the Administrator of theRetirement Plan Sponsored by DiversifiedInternational Products Limited for BruceMcLarty, Registration No. 1022482 (the “Plan”),pursuant to section 69(1) of the Act, to wind upthe Plan in whole.


I THEREFORE ORDER that the Plan bewound up in whole effective February 19, 1999,for the following reasons:

REASONS:



3. The employer is bankrupt within the mean-ing of the Bankruptcy and Insolvency Act(Canada), R.S.C. 1985, c. B-3, as amended,pursuant to clause 69(1)(c) of the Act.


5. All or a significant portion of the businesscarried on by the employer at a specific loca-tion was discontinued, pursuant to clause69(1)(e) of the Act.

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BDO Dunwoody LimitedRoyal Bank Plaza P.O. Box 33200 Bay Street, 32nd FloorToronto ON M5J 2J9

Attention: D.R. McConnellVice President Trustee in Bankruptcy andReceiver and Manager for Diversified InternationalProducts Limited



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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Makean Order pursuant to section 69 of the Act,respecting the Retirement Plan for theEmployees of Alloy Wheels International(Canada) Ltd., Registration No. 1036029;

TO: Arthur Andersen Inc.Suite 10504 King Street WestToronto ON M5H 1B6

Attention: Lawrence A. ContantManagerAdministrator

AND TO: Alloy Wheels International(Canada) Ltd.49 Truman RoadBox 13000Barrie ON L4M 6E7

Attention: Joan Oickle Compensation and BenefitsCoordinatorEmployer

ORDER

ON January 25, 2002, the Superintendent ofFinancial Services issued a Notice of Proposal toMake an Order dated January 24, 2002, to theEmployer and to the Administrator of theRetirement Plan for the Employees of AlloyWheels International (Canada) Ltd., RegistrationNo. 1036029 (the “Plan”), pursuant to section69(1) of the Act to wind up the Plan in whole.


I THEREFORE ORDER that the Plan bewound up in whole effective January 19, 2001,for the following reasons:

REASONS:



3. The employer is bankrupt within the mean-ing of the Bankruptcy and Insolvency Act(Canada), R.S.C. 1985, c. B-3, as amended,pursuant to clause 69(1)(c) of the Act.


5. All or a significant portion of the businesscarried on by the employer at a specificlocation was discontinued, pursuant toclause 69(1)(e) of the Act.


Deloitte & Touche Inc.BCE Place Suite 1400181 Bay Street Toronto ON M5J 2V1

Attention: David MurrayPartner Trustee in Bankruptcy forAlloy Wheels International(Canada) Ltd.

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c.c. CAW Canada – Local 1991178 Dunlap StreetBarrie ON L4M 4S6

Attention: Ed LittlePresident, Skill Trades Rep.

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997,S.O. 1997, c. 28 (the “Act”);

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Ilford Anitec(Canada) Limited Plan B Employees’Pension Plan, Registration No. 481218;

TO: Kodak Polychrome GraphicsLLC401 Merrit 7Norwalk, CT 06851

Attention: Mr. John B. WooleyDirector of Human ResourcesApplicant and Employer

CONSENT

ON or about December 10, 2001, theSuperintendent of Financial Services caused tobe served on Kodak Polychrome Graphics LLC aNotice of Proposal dated December 5, 2001, toconsent, pursuant to subsection 78(1) of theAct, to payment out of the Ilford Anitec(Canada) Limited Plan B Employees’ PensionPlan, Registration No. 481218 (the “Plan”), toKodak Polychrome Graphics LLC in the amountof $164,850, as of December 31, 1998.

NO NOTICE requiring a hearing was deliveredto the Financial Services Tribunal by theApplicant or any other party within the timeprescribed by subsection 89(6) of the Act.

THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Ilford Anitec (Canada)Limited Plan B Employees’ Pension Plan,Registration No. 481218, of $164,850, as ofDecember 31, 1998, subject to adjustment forinvestment earnings or losses and expenses, tothe date of payment to Kodak PolychromeGraphics LLC.

THIS CONSENT IS EFFECTIVE ONLYAFTER the Applicant satisfies me that allbenefits and benefit enhancements (includingbenefits and benefit enhancements pursuant tothe Surplus Distribution Agreement defined inparagraph 5 below) among members, formermembers and any other persons entitled to suchpayments have been paid, purchased, or other-wise provided for.

DATED at Toronto, Ontario, this 13th day ofFebruary, 2002.

Tom GolfettoDirector, Pension Plans Branchby delegated authority fromthe Superintendent of Financial Services

c.c. Mr. Robert G. Coyle

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Consent to Payment of Surplus out of Wound Up Pension Plans

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Pension Planfor Employees of Schrader Automotive(Canada) Inc., Registration No. 0923896;

TO: Schrader Automotive(Canada) Inc.c/o The Gates Group ofCompanies990 South BroadwayDenver, Colorado, USA80209-401

Attention: John BarkerDirector Retirement BenefitsApplicant and Employer

CONSENT

ON or about March 12, 2002, the Super-intendent of Financial Services caused to beserved on Schrader Automotive (Canada) Inc. aNotice of Proposal dated February 21, 2002, toconsent, pursuant to subsection 78(1) of theAct, to payment out of the Pension Plan forEmployees of Schrader Automotive (Canada)Inc., Registration No. 0923896 (the “Plan”), toSchrader Automotive (Canada) Inc. in theamount of $99,218, as at December 31, 1999,plus interest and adjustments.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Pension Plan for Employeesof Schrader Automotive (Canada) Inc.,Registration No. 0923896, of $99,218, as atDecember 31, 1999, plus interest and adjust-ments, to Schrader Automotive (Canada) Inc.

THIS CONSENT IS EFFECTIVE ONLYAFTER the Applicant satisfies me that all bene-fits, benefit enhancements (including benefitsand benefit enhancements pursuant to theSurplus Distribution Agreement made by theApplicant on behalf of Schrader Automotive(Canada) Inc. and 100% of the active membersand other members (defined in the application)and 100% of the former members at the date ofwind up) and any other persons entitled to suchpayments have been paid, purchased, or other-wise provided for.


Tom GolfettoDirector, Pension Plans Branchby delegated authority from the Superintendent of Financial Services

c.c. Mr. John Marks, Mercer Human Resource Consulting

Mr. Tyrone Medley, Mercer Human Resource Consulting

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act con-senting to a payment out of the Pension Planof Nickel Development Institute for M.O.Pearce, Registration No. 969220;

TO: Nickel Development Institute214 King St. WestSuite 510Toronto ON M5H 3S6

Attention: Mr. James LillyVice President and TreasurerApplicant and Employer

CONSENT

ON April 3, 2002, the Superintendent ofFinancial Services caused to be served on NickelDevelopment Institute a Notice of Proposaldated March 12, 2002, to consent, pursuant tosubsection 78(1) of the Act, to payment out ofthe Pension Plan of Nickel DevelopmentInstitute for M.O. Pearce, Registration No.969220 (the “Plan”), to Nickel DevelopmentInstitute in the amount of $45,198, as atApril 1, 2001, plus 100 percent of investmentearnings on the surplus to the date of paymentless 100 percent of expenses relating to thewind up of the Pension Plan of NickelDevelopment Institute for M.O. Pearce.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Pension Plan of NickelDevelopment Institute for M.O. Pearce,Registration No. 969220, of $45,198, as atApril 1, 2001, plus 100 percent of investmentearnings on the surplus to the date of paymentless 100 percent of expenses relating to thewind up of the Pension Plan of NickelDevelopment Institute for M.O. Pearce, toNickel Development Institute.

DATED at Toronto, Ontario, this 6th day ofJune, 2002.

Tom GolfettoDirector, Pension Plans Branchby delegated authority fromthe Superintendent of Financial Services

c.c. Karen A. Zilli, William M. Mercer Limited

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997,S.O. 1997, c. 28;

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997,c. 28, respecting the Gallaher Thorold PaperCo. Salaried Pension Plan, RegistrationNumber 1039999;

TO: Arthur Andersen Inc.Suite 1050, 4 King Street WestToronto ON M5H 1B6

Attention: Mr. David R. KearneyAdministrator

Gallaher Thorold Paper Co. 67 Front Street North Thorold ON L2V 3Z7

Attention: Mr. David Rennie Vice President, Human ResourcesEmployer

Ernst & Young Inc.Ernst & Young TowerP.O. Box 251, 222 Bay StreetToronto-Dominion CentreToronto ON M5K 1J7

Attention: Mr. Felix Hsu, ManagerTrustee in Bankruptcy forGallaher Thorold Paper Co.

DECLARATION

WHEREAS:

1. The Gallaher Thorold Paper Co. SalariedPension Plan, Registration Number 1039999(the “Plan”), is registered under the Pension

Benefits Act, R.S.O. 1990, c. P.8, as amendedby the Financial Services Commission ofOntario Act, 1997, S.O. 1997, c. 28 (the“Act”); and

2. The Plan provides defined benefits that arenot exempt from the application of thePension Benefits Guarantee Fund (the“Guarantee Fund”) by the Act or the regula-tions made thereunder; and

3. The Superintendent of Pensions issued anOrder that the Plan be wound up effectiveMay 25, 1999; and

4. The Superintendent of the Financial ServicesCommission appointed Arthur AndersenInc. as the administrator (the “Adminis-trator”) of the Plan on September 27, 1999;and

5. On April 2, 2002, the Deputy Super-intendent, Pension Division, issued a Noticeof Proposal, dated April 2, 2002, to Make aDeclaration that the Guarantee Fund appliesto the Plan; and

6. No notice requiring a hearing by theFinancial Services Tribunal, pursuant to sub-section 89(6) of the Act, has been received.

NOW THEREFORE TAKE NOTICE I declarepursuant to sections 83 and 89 of the Act thatthe Guarantee Fund applies to the Plan for thefollowing reasons:

1. The funded ratio of the Plan has been esti-mated to be 55.46%.

2. The employer, Gallaher Thorold Paper Co.,was assigned into bankruptcy on June 15,1999.

3. The trustee in bankruptcy for GallaherThorold Paper Co. has advised theAdministrator that there are no funds

Declaration that the Pension Benefits Guarantee Fund Applies to PensionPlans – Subsection 83(1) of the PBA

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available from the estate of GallaherThorold Paper Co. to make payment to the Plan.

4. The Administrator advised that it is of theopinion that there are reasonable and prob-able grounds for concluding that the fund-ing requirements of the Act and regulationcannot be satisfied.

DATED at North York, Ontario, this 29th day ofMay, 2002.

Tom Golfetto, DirectorPension Plans BranchBy Delegated Authority fromthe Superintendent of Financial Services

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Appointments of FST Board Members

Name and O.C. Effective Expiry DateAppointment Date

Milczynski, Martha (Chair)O.C. 1622/2001 June 20, 2001 June 19, 2004O.C. 1665/99 October 6, 1999 July 7, 2001O.C. 1808/98 July 8, 1998 October 6, 1999

McNairn, Colin (Vice-Chair)O.C. 1623/2001 June 20, 2001 June 19, 2004**O.C. 1809/98 July 8, 1998 July 7, 2001

Corbett, Anne (Vice-Chair, Acting)O.C. 1438/2001 June 20, 2001 June 19, 2004**

Erlichman, LouisO.C. 439/2002 January 23, 2002 January 22, 2005**O.C. 2527/98 December 9, 1998 December 8, 2001O.C. 1592/98 June 17, 1998 December 16, 1998

Gavin, Heather O.C. 440/2002 January 23, 2002 January 22, 2005**O.C. 11/99 January 13, 1999 January 12, 2002

Greville, M. ElizabethO.C. 441/2002 January 23, 2002 January 22, 2005**O.C. 222/99 January 27, 1999 January 26, 2002O.C. 2405/95 February 8, 1996 February 7, 1999

Martin, Joseph P.O.C. 1626/2001 June 20, 2001 June 19, 2004**O.C. 1810/98 July 8, 1998 July 7, 2001

Moore, C.S. (Kit) O.C. 1625/2001 June 20, 2001 June 19, 2004**O.C. 1591/98 July 1, 1998 June 30, 2001

Short, David A.O.C. 2118/2001 October 24, 2001 October 23, 2004**

Vincent, J. DavidO.C. 2119/2001 October 24, 2001 October 23, 2004**

Wires, David E.O.C. 2166/99 February 26, 2000 February 25, 2003O.C. 257/97 February 27, 1997 February 26, 2000

** Or on the day FSCO/OSC merges, if earlier.

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Brewers Retail Pension Plan forBargaining Unit Employees, RegistrationNumber 336081, FST File NumberP0099-2000;On February 24, 2000, Mr. Patrick J. Moore,President of the United Brewers’ WarehouseWorkers, Local 375W, requested a hearing seek-ing an Order directing “the Superintendent toorder the administrator of the Plan (BrewersRetail Inc.) to cease administering the Plan withan improperly constituted advisory committeeand to cause the creation of a properly consti-tuted advisory committee pursuant to the Actand formulating documents.” The hearingrequest arose as a result of a letter from theSuperintendent dated January 26, 2000, inwhich the Superintendent stated that therewere no grounds under the Pension Benefits Actand Plan to order the establishment of an advi-sory committee. The letter also stated that anyissue that Mr. Moore may have with the letterof understanding, which is part of the agree-ment between Brewers Retail Inc. and UnitedFood and Commercial Worker’s ProvincialBoard (the “UBWW/UFCW”), wherein BrewersRetail Inc. acknowledges that the UBWW/UFCW has a right to appoint a pension com-mittee with membership, roles and responsibili-ties as set out in the Pension Benefits Act, wouldbe a labour issue and not within theSuperintendent’s jurisdiction.

At a pre-hearing conference held on May 17,2000, Brewer’s Retail Inc. and the UBWW/UFCW were granted full party status. At thepre-hearing conference the parties agreed thatbefore the Financial Services Tribunal consid-ered the matter on its merits, it was necessaryfor it to determine the preliminary issue ofwhether it had jurisdiction to grant the relief

sought in Mr. Moore’s Request for Hearing. Atthe pre-hearing conference, the Superintendentraised the issue of whether notice to formermembers of the Plan ought to be provided as itappeared that former members of the Plan werenot represented.

In a telephone conference held on November16,2000, the hearing on the notice issue wasscheduled for March 7, 2001. The hearing onthe jurisdictional issue was scheduled forSeptember 28, 2001.

On March 7, 2001, the Tribunal decided thatformer members had received adequate noticeof the proceeding through the existing partiesto the proceeding. The written reasons forDecision dated April 10, 2001, were publishedin Volume 10, Issue 2 of the Pension Bulletin.

On September 28, 2001, the Tribunal decidedthat it did not have jurisdiction to grant therelief sought by Mr. Moore. Written Reasons forDecision dated June 3, 2002, are published inthis bulletin on page 112.

Imperial Oil LimitedImperial Oil Limited Retirement Plan(1988), Registration Number 347054 andthe Imperial Oil Limited Retirement Planfor Former Employees of McColl-Frontenac Inc. Registration Number344002, FST File Number P0130-2000;On October 31, 2000, Imperial Oil Limitedrequested a hearing with respect to theSuperintendent’s Notice of Proposal datedOctober 3, 2000, proposing to refuse to approvea partial wind up report in respect of two Plansof which Imperial Oil is the Administrator.

The stated reasons for the proposed refusalinclude the failure of each wind up report todo the following: (a) reflect the liabilities

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associated with all of the members of the Planwhose employment was terminated by ImperialOil during the wind up period; (b) apply thegrow-in provisions of section 74 of the PensionBenefits Act in a proper manner; (c) providebenefits in accordance with elections made, asrequired under subsection 72(1) of the PensionBenefits Act, among various options includingthose available as a result of partial wind up;and (d) provide for the distribution of assetsrelated to the partial wind up group.

A pre-hearing conference was held on June 19,2001. At the pre-hearing conference, theSuperintendent agreed to amend the Notice ofProposal in this matter to delete reference to(d) above.

A hearing and preliminary motion with respectto answers to interrogatories was held on July 25,2001. The Tribunal ordered the Superintendentto respond to the first and second set of theApplicant’s interrogatories within six weeks ofthe date of the Order subject to the qualificationthat the Superintendent need not produce anydocuments or reveal any communications towhich the law of privilege applies. WrittenReasons for Order dated September 10, 2001,were published in Volume 11, Issue 1 of thePension Bulletin.

A continuation of the pre-hearing conferencewas held on December 20, 2001. The pre-hearing conference was adjourned to allow theparties to bring a motion with respect toanswers to interrogatories. The June 4, 2002motion date was adjourned to July 24, 2002.

Marshall-Barwick (formerly MarshallSteel Limited), Registration Number0968081, FST File Number P150-2001;On January 16, 2001, Marshall-Barwick Inc.(formerly Marshall Steel Limited) requested ahearing in respect of the Superintendent’s

Notice of Proposal dated December 12, 2000.The Superintendent is proposing to refuse toapprove a Partial Wind Up Report as at August28, 1992, respecting the Retirement Plan forSalaried Employees of Marshall Steel Limitedand Associated Companies in relation to em-ployees who ceased to be employed by MarshallSteel Limited as a result of the closure of itsplant in Milton, Ontario. The Superintendent’sbasis for the Notice of Proposal is that theReport does not protect the interests of allthose affected by the partial wind up, specif-ically, Mr. Jeffrey G. Marshall, an employeewho was terminated during the wind up peri-od. On June 4, 2001, Jeffrey G. Marshallapplied for party status.

A pre-hearing conference was held on August 13,2001, at which time Mr. Marshall was grantedfull party status. The hearing scheduled forNovember 29 and 30, 2001, was adjourned as aresult of a joint request made by the parties onNovember 6, 2001. The reason for the requestwas due to the applicant providing Mr. Marshallwith actuarial data in respect of Mr. Marshall’sbenefit entitlements. Mr. Marshall requiredadditional time to obtain expert advice inrespect of the information. The hearing isscheduled for September 9-10, 2002.

National Steel Car Limited, RegistrationNumbers 0215020 and 0215038, FST FileNumber P154-2001;On March 7, 2001, representatives for membersof the Pension Plan for Salaried Employees ofNational Steel Car Limited requested a hearingregarding the Superintendent’s consent to thetransfer of all of the assets of the Pension Planfor Salaried Employees of National Steel CarLimited to the Pension Plan for Hourly-PaidEmployees of National Steel Car Limited. TheSalaried Plan is in a surplus position and theHourly-Paid Plan has an unfunded liability.

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Applications for Party Status were filed onbehalf of National Steel Car Limited and certainrepresentatives of the United Steel Workers ofAmerica, Local 7135, on behalf of the membersof the Hourly-Paid Plan. The two applicants forparty status were joined as parties by order atthe pre-hearing conference held on June 21,2001. The main issues in this case were whetherthe Tribunal had the jurisdiction to entertainthe applicant’s request for a hearing andwhether the Superintendent’s consent to thetransfer of assets should be set aside or varied.

A settlement conference was held September24, 2001. The hearing was held January 15, 16and 17, 2002. Reasons for Decision werereleased on May 31, 2002. The Tribunal decid-ed, by a 2-1 majority, that it did not have juris-diction to entertain the applicant’s request for ahearing and, by a unanimous decision, that theSuperintendent’s consent to the transfer ofassets should stand. The Reasons for Decisionare published in this bulletin on page 99.

Independent Order of ForestersFieldworkers, Registration Number0354399, FST File Number P155-2001;On August 12, 2001, The Independent Order ofForesters (“IOF”) requested a hearing withrespect to the Superintendent’s Notice ofProposal dated March 19, 2001, to refuse toconsent to an application for the payment ofthe surplus of the IOF Fieldworkers PensionPlan to the employer. The Superintendent pro-posed to refuse consent on the basis that shewas not satisfied that the Plan had a surplusand provides for the payment of any surplus tothe employer on the wind up of the Plan.

A pre-hearing conference was held on July 4,2001, at which Mr. Irvin Grainger was joined asa party to the proceeding. The pre-hearing con-ference continued on July 27, 2001, at which

time it was agreed that a settlement conferencewould be held on November 13, 2001. A motionby IOF for a determination of the appropriatemanner and form of giving notice of the hear-ing in this matter was heard on December 7,2001 by a panel of the Tribunal, and was fol-lowed by a further continuation of the pre-hearing conference. At the motion hearing itwas ordered that notice of hearing be by way ofnational newspaper publication, and that thenotice also be provided by ordinary mail to allmembers and former members affected by thewind up. Written reasons for Orders made onDecember 7, 2001, were published in Volume 11,Issue 2 of the Pension Bulletin. On June 12,2001, the Superintendent and IOF made a jointrequest that the hearing in this matter proceedin respect of the issue of whether the Plan pro-vided for the payment of surplus to IOF butthat the hearing in respect of the issue ofwhether there was any surplus in the Plan bedeferred. The request was granted and thepanel held a hearing on the first of the twoissues on June 18, 2002, reserving its decision.

Cooper Industries (Canada) Inc.,Registration Number 0240622, FST FileNumber P156-2001;On April 17, 2001, Cooper Industries (Canada)Inc. requested a hearing with respect to theSuperintendent’s Notice of Proposal datedMarch 8, 2001, to Refuse to Approve a PartialWind Up Report, prepared in November 1999in relation to the partial wind up of theRetirement Plan for Salaried Employees ofCooper Canada – Plan A, Registration Number0240622, as at March 30, 1992, in relation toemployees at the Port Hope location of CooperIndustries (Canada) Inc., and to make anOrder requiring Cooper Industries (Canada)Inc. to refrain from using and to preserve for

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distribution that portion of the surplus of thePlan attributable to the Port Hope location. Thebasis for the Notice of Proposal was that thePartial Wind Up Report proposed that the sur-plus assets of the Plan attributable to the PortHope location be retained for continuing appli-cation toward future current service contribu-tions for the Plan’s continuing membershipand, therefore, failed to provide for distributionof the Port Hope surplus assets.

On May 14, 2001, Messrs. Ray Mills and LarryBattersby applied for party status on behalf ofPlan members and former Plan membersemployed at the Port Hope plant and bene-ficiaries of same.

A pre-hearing conference was held onSeptember 5, 2001 at which Messrs. Mills andBattersby were joined as parties. The pre-hearing conference for May 27, 2002 wasadjourned to a date to be set at the requestof the parties, pending the outcome of theMonsanto case.

Pension Plan for the Employees ofDyment Limited, Registration Number0242735, FST File Number P0157-2001;On April 18, 2001, Dyment Limited requested ahearing with respect to the Superintendent’sNotice of Proposal dated March 19, 2001, tomake an Order that the Pension Plan for theEmployees of Dyment Limited, RegistrationNumber 0242735, be wound up in full effectiveAugust 23, 1996, and to refuse to approve theactuarial report prepared in April 1997 inrelation to the partial wind up of the Plan as atAugust 23, 1996.

The basis for the Notice of Proposal was that asof August 23, 1996, there were no remainingactive members in the Plan and Dyment wasno longer required to make contributions. Thebasis for refusing to approve the actuarial report

is that the report does not meet the require-ments of the Pension Benefits Act and theRegulations and does not protect the interestsof the members or former members of the Plan.

On May 22, 2001, Mr. Mobeen Khaja appliedfor Party Status. Mr. Khaja was part of a groupof employees who were subject to the partialwind up of the Plan, and would be affected bya full wind up of the Plan.

A pre-hearing conference was held on July 13,2001, at which Mr. Khaja was joined as a partyto the proceeding. Hearing dates originallyscheduled for January 24 and 25, were changedto April 15 and 16, 2002 and were subsequentlyadjourned at the parties’ request so that settle-ment discussions may continue.

Camco Inc. Pension Plan Number 4,Registration Number 0583302 to CamcoInc. Pension Plan Number 7, RegistrationNumber 0583336, FST File NumberP160-2001;On May 14, 2001, Camco Inc. requested ahearing with respect to the Superintendent’sNotice of Proposal dated March 30, 2001, toRefuse to Consent to a Transfer of Assets fromthe Camco Inc. Pension Plan 4, RegistrationNumber 0583302 to the Camco Inc. PensionPlan No. 7, Registration Number 0583336.

The basis for the Notice of Proposal was thatthe asset transfer does not protect the pensionbenefits and other benefits of the former mem-bers of Plan 4 under subsection 81 (5) of thePension Benefits Act.

A pre-hearing conference was held onSeptember 24, 2001. The settlement conferencescheduled for December 17, 2001, wasrescheduled to February 7, 2002. Settlementdiscussions are continuing.

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Consumers Packaging Inc., Pension PlanII, Registration Number 0998682, FST FileNumber P162-2001;On May 17, 2001, Consumers Packaging Inc.requested a hearing with respect to theSuperintendent’s Notice of Proposal dated April20, 2001, to Refuse to Approve a PartialWind Up Report filed by Consumers PackagingInc. on May 19, 2000, with respect to a partialwind up of the Consumers Packaging Inc.Pension Plan II, Registration Number 0998682,as at May 7, 1997, and to Refuse to Register anamendment to such Pension Plan filed byConsumers Packaging Inc. on May 19, 2000,titled Amendment #2.

The basis for the Notice of Proposal was thatConsumers Packaging Inc. filed a partial windup report in 1997. The Superintendent issuedtwo Notices of Proposal in 1999 ordering Con-sumers Packaging Inc, to accept as members ofthe Plan certain replacement call-in employeesand refusing to approve the 1997 partial windup report on the grounds that the replacementcall-in employees were not included in thereport and that “grow-in” to plant closurebenefits was not provided to unionized hourlyemployees affected by the partial wind up.Consumers Packaging Inc. requested a hearingbefore the Financial Services Tribunal with re-spect to both Notices of Proposal. The hearingconcerning the call-in employees was settled bythe parties and Consumers Packaging Inc.accepted as members of the Plan those replace-ment call-in employees who met certain condi-tions. The hearing request regarding the “grow-in” benefits was withdrawn. Consumers Packag-ing Inc. was ordered to file an amended partialwind up report. In addition, in 1997 ConsumersPackaging filed an application to registerAmendment #2 to the Plan which providedenhanced bridge benefits to some members.

On May 19, 2000, Consumers Packaging filed arevised partial wind up report (the “revisedreport”) and a revised application to registerAmendment #2 (the “revised Amendment”).The Superintendent issued the April 20, 2001Notice of Proposal stating reasons that therevised Amendment is void pursuant to clause14(1)(c) of the Pension Benefits Act, and thatthe revised report does not meet the require-ments of the Pension Benefits Act pursuant tosubsection 70(5), because the commuted valueof the pension benefits and ancillary benefitsfor the affected members is calculated based onthe revised Amendment, which is void underthe Act. The revised report does not protect theinterests of the members and former membersof the Plan for the same reason.

The Superior Court of Justice, Commercial Listissued an Order, dated May 23, 2001, statingthat any suit, action, enforcement process,extra-judicial proceeding, regulatory, adminis-trative or other proceeding against or in respectof Consumers Packaging Inc. already com-menced be stayed and suspended until andincluding June 22, 2001. A further Order wasissued on June 18, 2001 extending the stayperiod until August 15, 2001 and again untilOctober 1, 2001. On October 1, 2001, a PensionAssumption Agreement was made. A pre-hear-ing conference was held on February 19, 2002.

On April 18, 2002, a motion was brought byConsumers Packaging for an order compellingthe Superintendent to answer certain interroga-tories. The motion was dismissed. The hearingis scheduled for July 29 and 31, 2002.

CBS Canada Co., Westinghouse CanadaInc. Pension Plan Registration Numbers348409 and 526632, FST File NumberP164-2001;On June 8, 2001, CBS Canada Co., the

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successor to Westinghouse Canada Inc.,requested hearings in connection with theSuperintendent’s Notices of Proposal dated May9 and 15, 2001, to Refuse to Approve variouspartial wind up reports in respect of theSalaried Employees Pension Plan and theHourly Paid Employees Pension Plan ofWestinghouse Canada Inc. The partial wind upswere triggered by the closure by ABB CanadaInc. of its plants in London, Ontario; St. Jean,Quebec; and Burlington, Ontario, at which itcarried on businesses acquired fromWestinghouse Canada Inc., and by the closureby Westinghouse Canada Inc. of its MotorDivision plant in Hamilton, Ontario.

The basis for each Notice of Proposal was thatthe relevant partial wind up report failed toprovide employer request early retirement ben-efits and related bridge benefits, contemplatedby each Plan, to all members of the partialwind up group whose age plus years of serviceequaled at least 55 and because the report failedto provide for the distribution of surplus relat-ing to the partial wind up group.

On June 19, 2001, CAW Canada, which repre-sented the employees who were members ofthe Westinghouse Hourly Paid EmployeesPension Plan filed an application for party sta-tus in these proceedings. At a pre-hearing con-ference on November 5, 2001, CAW Canadawas granted party status in the proceedingsconcerning the Notices of Proposal relating tothe Hourly Employees Pension Plan and wasgiven limited rights to participate in the pro-ceedings concerning the Notices of Proposalrelating to the Salaried Employees PensionPlan. The various proceedings were directed tobe heard together.

At a continuation of the pre-hearing confer-ence, held on November 29, 2001, a hearing

was scheduled for February 4-5, 2002 to dealwith several jurisdictional issues to be broughton by motion of CBS Canada Co. Those issuesincluded the following:

1. whether the Superintendent was entitled torescind the initial approvals that she hadgiven with respect to several of the partialwind up reports, for failure to adhere to thedoctrine of fairness, and for which she sub-sequently substituted Notices of Proposal torefuse approval;

2. whether the Tribunal could direct theSuperintendent to refuse approval of certainof the wind up reports on the basis of aground that was not specifically recited inthe relevant Notices of Proposal;

3. whether the Tribunal could determine theresponsibility for any special benefitspayable to the former Westinghouseemployees at the facilities that were closedby ABB Inc. as between CBS Canada Co.and ABB Inc.; and

4. whether the Tribunal could order that ABBInc. be added as a party to the proceedingsagainst its will.

At the hearing on the jurisdictional motion,the Tribunal refused to order that ABB Inc.be added as a party, but otherwise reserved itsdetermination of the issues raised by themotion.

The Tribunal released its Reasons for Decisionon the jurisdictional motion on March 4, 2002.Those Reasons are published in this bulletin onpage 75.

A settlement conference is scheduled forAugust 7-8, 2002. The hearing is scheduled forDecember 2-5 and 10-12, 2002.

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Crown Cork & Seal Canada Inc.Registration Numbers 474205, 595371 &338491, FST File Number P0165-2001;On June 29, 2001, Crown Cork & Seal CanadaInc. requested a hearing with respect to theSuperintendent’s Notice of Proposal dated May29, 2001, to refuse to consent to a transfer ofassets proposed by Crown Cork & Seal CanadaInc. from the Crown Cork & Seal Canada Inc.Pension Plan for Salaried Employees, Registra-tion No. 0474205 and the Pension Plan forClerical Employees of Crown Cork & Seal CanadaInc., Registration No. 0595371 into theCrown Cork & Seal Canada Inc. Pension Planfor Employees, Registration No. 338491.

The basis for the refusal is that the asset trans-fer does not protect the pension benefits andother benefits of the members and formermembers of the Plans.

At the request of both parties a settlement con-ference was held on October 30, 2001, prior tothe scheduling of the pre-hearing conference.The parties agreed to adjourn this matter sinedie pending discussions between the parties.

Samsonite Canada Inc.Samsonite Canadian Service RelatedPension Plan, Registration Number398578, FST File Number P0166-2001 andFST File Number P175-2001;On July 3, 2001, Samsonite Canada Inc. requesteda hearing with respect to the Superintendent’sNotice of Proposal dated June 1, 2001, to refuseto consent to the application of SamsoniteCanada Inc. dated November 13, 2000, for thepayment of surplus to the Employer under sub-section 78(1) of the Pension Benefits Act from theSamsonite Canadian Service Related PensionPlan, Registration No. 398578.

On November 2, 2001, Samsonite Canada Inc.requested a hearing with respect to the

Superintendent’s Notice of Proposal datedOctober 11, 2001, to refuse to consent to theapplication of Samsonite Canada Inc. datedNovember 13, 2000, for the payment of surplusto the Employer under subsection 78(1) of thePension Benefits Act from the SamsoniteCanadian Retirement Income Plan, RegistrationNo. 373225.

At the pre-hearing conference held onNovember 9, 2001, the parties requested thatthese two matters be joined and heard together.The matters were joined and the hearing washeld on June 3, 2002. At the hearing, theTribunal gave the parties 30 days to file anyadditional written submissions.

James MacKinnon (Labourers’ Pension Fund of Central andEastern Canada), Registration Number573188, FST File Number P0167-2001;On July 13, 2001, James MacKinnon requesteda hearing with respect to the Superintendent’sNotice of Proposal dated June 20, 2001, torefuse to make an Order regarding Mr.MacKinnon’s request that he is entitled toreceive a “Thirty and Out” pension benefitfrom the Labourers’ Pension Fund of Centraland Eastern Canada. The basis for the refusal isthat in refusing to grant Mr. MacKinnon a“Thirty and Out” pension, the Plan administra-tors have administered the Plan in compliancewith requirements of the Pension Benefits Act(the “Act”), the Regulations and the filed docu-ments in respect of which the Superintendenthas issued a certificate of registration. Subsec-tion 87(2) of the Act allows the Superintendentto make an Order only if the Superintendent isof the opinion, upon reasonable and probablegrounds, that the pension plan or fund is notbeing administered in accordance with the Act,the Regulations or the pension plan.

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On July 31, 2001, the Board of Trustees of theLabourers’ Pension Fund of Central and EasternCanada filed for party status on the basis thatthey are the Administrators of the Plan andwish to fulfill their fiduciary duties to all bene-ficiaries to ensure that only valid and properclaims for benefits are paid out from the Fundto protect the interests of all beneficiaries.

At the pre-hearing conference held onNovember 22, 2001, party status was granted tothe Labourers’ Pension Fund of Central andEastern Canada. The April 2002 settlement con-ference was rescheduled to June 11, 2002, andthe hearing was scheduled for July 17-18 andAugust 16, 2002. On July 10, 2002, the hearingdates were adjourned sine die on consent ofthe parties.

Imperial Oil Limited Retirement Plan,Registration Number 347054, FST FileNumber P0169-2001;In this matter, the Superintendent alleges that,effective April 28, 1995, Imperial Oil Limited(“IOL”) sold its credit card operations toGeneral Electric Capital Canada Inc. (“GECapital”), at which time 37 individuals, whohad been employed by IOL in that business andwere members of the IOL Retirement Plan,became employees of GE Capital and membersof its Pension Plan, while maintaining theiraccrued benefits in the IOL Retirement Plan.

On August 3, 2001, the Superintendent issuedNotices of Proposal to Make Orders requiring:

• that the IOL Retirement Plan be wound up inrelation to those members and former mem-bers of the Plan who ceased to be employedby GE Capital, between March 2000 and July2000, as a result of the closure of itsMarkham, Ontario credit card facility; and

• that such members and former members ofthe IOL Retirement Plan be given credit for

both age and service at the time they ceasedto be employed by GE Capital when deter-mining their benefits, in accordance withsection 80(1)(c) of the Pension Benefits Act,under the IOL Retirement Plan.

On August 24, 2001, IOL requested a hearing inrespect of these Notices of Proposal.

A pre-hearing conference was held on January9, 2002. The evidence phase of the hearing washeld on June 13, 2002 and the submissionphase is scheduled for August 1-2, 2002.

Stanley Canada Inc., Pension Plan forDesignated Employees of Stanley CanadaInc., Registration Number 456897,FST File Number P0170-2001;On August 27, 2001, Stanley Canada Inc. re-quested a hearing with respect to the Superin-tendent’s Notice of Proposal dated July 26, 2001,to refuse to consent to the application for pay-ment of surplus to the Employer dated April1999, pursuant to section 78(1) of the PensionBenefits Act.

An Application for party status was filed onNovember 20, 2001 by Mr. Blaine Mitton, aMember of the Plan.

The pre-hearing conference scheduled forNovember 28, 2001 was rescheduled to January10, 2002 at which time Mr. Mitton was grantedparty status. On January 11, 2002, an Applica-tion for Party Status was filed by Mr. EdwardHolba, a Member of the Plan. The parties con-sented to Mr. Holba’s Application for PartyStatus and full party status was granted byOrder dated April 4, 2002. The May 2002 hear-ing dates were adjourned at the request of theparties for a motion to be brought by theSuperintendent concerning expert evidence.The Motion was heard on May 22, 2002. Thehearing is scheduled for November 19-22, 2002.

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Canadian Tack & Nail Ltd. Pension Planfor Salaried Employees, RegistrationNumber 0581306, FST File NumberP0171-2001;On September 14, 2001, Canadian Tack & NailLtd. requested a hearing regarding theSuperintendent’s Notice of Proposal datedAugust 14, 2001, to Make an Order under sec-tion 87 of the Pension Benefits Act, requiring theEmployer or Administrator of the Plan to remitwithin 30 days of receiving the Notice ofProposal, outstanding contributions in theamount of $67,933 as of December 31, 1999owed to the Pension Fund, together with inter-est payable under section 24 of the Regulation909 under the Act.

The basis for the Notice of Proposal is that sub-section 87(2) of the Act allows the Superinten-dent to make an Order if the Superintendent isof the opinion, upon reasonable and probablegrounds, that the pension plan or fund is notbeing administered in accordance with the Act,the Regulations or the pension plan or if theemployer, administrator of a pension plan, orany other person is contravening a requirementof the Act or the Regulations.

At a pre-hearing conference on February 7,2002, the parties agreed to a settlement confer-ence. The settlement conference was scheduledfor June 27, 2002.

The Corporation of the City of KitchenerPension Plan for Fire DepartmentEmployees, Registration Number 239475,FST File Number P0172-2001;On September 20, 2001, The Corporation of theCity of Kitchener requested a hearing regardingthe Superintendent’s Notice of Proposal datedAugust 23, 2001, to refuse to consent to theapplication for payment of surplus to theEmployer, pursuant to section 78(1) of the

Pension Benefits Act from The City of KitchenerPension Plan for Fire Department Employees,Registration No. 239475.

A pre-hearing conference was held on April 25,2002, at which time the parties agreed to asettlement conference. The settlement confer-ence date of July 16, 2002, was adjourned atthe parties’ request to be rescheduled inSeptember 2002.

Pension Plan for Employees of Proctor &Redfern Limited, Registration Number0289579, FST File Number P0173-2001; On November 5, 2001, certain former membersrequested a hearing regarding the Superinten-dent’s Notice of Proposal dated October 3, 2001,to refuse to make an Order under sections 69and 87 of the Pension Benefits Act. The Super-intendent is proposing to refuse to make anOrder that the Plan be partially wound up withrespect to former employees of Proctor &Redfern Limited whose employment was termi-nated between and including 1994 and 1998;to refuse to make an Order that the formeremployees whose employment was terminatedbetween and including 1994 and 1998 as wellas former employees who had their pensionbenefits annuitized in 1998 and 1999 beincluded in the surplus sharing group identifiedin the Revised Wind Up Report dated December2000 and, to refuse to make an Order that theybe entitled to share in the surplus distributionon an equitable basis; and to refuse to make anOrder that Earth Tech (Canada) Inc. refund tothe Plan any funds improperly withdrawn fromthe Plan to fund its own legal and actuarialcosts.

On November 26, 2001, Earth Tech (Canada)Inc. filed for party status on the basis that it isthe Administrator of the Plan and has a duty toensure that the Plan is properly wound up.

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The pre-hearing conference scheduled for May 1,2002, was rescheduled to August 26, 2002.

Retirement Pension Plan for Employeesof Twin Oak Credit Union Ltd.,Registration Number 284257, FST FileNumber P0178-2002;On January 11, 2002, Twin Oak Credit UnionLtd. requested a hearing regarding theSuperintendent’s Notice of Proposal datedDecember 13, 2001, proposing to make andOrder under section 87 of the Pension BenefitsAct, with respect to Carol Joseph and any otherpart-time employee eligible for membership inthe Plan. The Superintendent has proposed thatthe Administrator of the Plan pay to Ms. Josephher pension benefit determined on the basisthat Ms. Joseph was eligible for membershipand should have been enrolled in the Planeffective January 1, 1978. The Superintendentalso proposed to order the Administrator toprovide, to any other part-time employee whowas eligible to participate in the Plan, themonthly pension benefit determined on thebasis that the part-time employee was eligiblefor membership and should have been enrolledin the Plan effective January 1, 1978 or later ifemployed at a later date. The Superintendentalso proposed that any lump sum owing to Ms.Joseph or any other eligible part-time employeerepresenting retroactive payments shall also becredited with interest payable pursuant to sub-section 21(11) of Regulation 909 made underthe Act. Applications for Party Status were filedby Carol Lynne Joseph, Mary Lynn Feenan,Sharon Wiese, Donna Fredricks and WendyEdmunds.

At the pre-hearing conference on April 24, 2002,full party status was granted to Ms. Joseph,Ms. Feenan, Ms. Wiese and Ms. Fredricks. Partystatus was not granted to Ms. Edmunds.

The parties agreed to a settlement conferencewhich was held on June 4, 2002. The partiesalso agreed that a preliminary motion will bebrought to decide whether or not the Tribunalhas the jurisdiction to deal with the proposedissue of whether or not the employer is entitledto a credit for payments made in lieu of bene-fits to part-time employees under the collectiveagreements during the period January 1, 1978to January 1, 1988, and whether the LimitationsAct bars this proceeding. The Motion is sched-uled for November 6, 2002. The hearing isscheduled for February 24, 26-28, 2003 andMarch 26-28, 2003.

Marcel Brousseau, Electrical Industry ofOttawa Pension Plan, RegistrationNumber 0586396, FST File NumberP0183-2002;On February 20, 2002, Marcel Brousseau aMember of the Plan, requested a hearingregarding the Superintendent’s Notice ofProposal dated January 22, 2002, to refuse tomake an Order in respect of the Plan Adminis-trator’s determination pursuant to section 87 ofthe Pension Benefits Act, of Mr. Brousseau’s pen-sionable service under the terms of the Plan.

A pre-hearing conference is scheduled forAugust 27, 2002.

Molson Canada, Molson BreweriesPension Plan for Operating Engineers,Registration Number 0390666; MolsonCanada Pension Plan for HourlyEmployees in Ontario and AtlanticCanada, Registration Number 0334094;and Molson Canada Pension Plan forSalaried Employees, Registration Number0334086, FST File Number P0187-2002;On June 7, 2002, Molson Canada requested ahearing regarding the five Notices of Proposalissued by the Superintendent each dated May 5,

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2002, proposing to make orders that the vari-ous Molson Canada pension plans be woundup in part.

The pre-hearing conference date is pending.

Donna Marie Sloan, Ontario Teachers’Pension Plan, Registration Number0345785, FST File Number P0188-2002;A survivor pre-retirement death benefit thatwas being paid to Donna Marie Sloan under thePlan was discontinued when the OntarioPension Plan Board, the Administrator of thePlan, concluded that she was living separateand apart from her husband, the Plan member,at the time of his death, thereby disqualifyingher from receiving the benefit. On March 4,2002, the Superintendent issued a Notice ofProposal refusing to make an Order, pursuantto section 87 of the Pension Benefits Act, requir-ing the Administrator to take action in respectof the Plan by reinstating the death benefit.On April 2, 2002, Donna Marie Sloan requesteda hearing. On April 23, 2002, the OntarioTeachers’ Pension Plan Board filed anApplication for Party Status.

A pre-hearing conference is scheduled forAugust 20, 2002.

Bauer Nike Hockey Inc. Pension Plan forEmployees of Bauer Nike Hockey Inc.,Registration Number 257337, FST FileNumber P0189-2002;On April 3, 2002, Bauer Nike Hockey Inc.,requested a hearing regarding the Super-intendent’s Notice of Proposal dated March 8,2002, to refuse to approve the actuarial reportprepared on December 23, 1998 in respect ofthe partial wind up as at November 1, 1998,submitted by Bauer Nike Hockey Inc., to theSuperintendent under sections 70(5) and 89(4)of the Pension Benefits Act, relating to the

Pension Plan for Employees of Bauer NikeHockey Inc., Registration Number 257337.

The pre-hearing conference is scheduled forOctober 28, 2002.

Kerry (Canada) Inc., Pension Plan for theEmployees of Kerry (Canada) Inc.,Registration Number 238915, FST FileNumber P0191-2002;On May 22, 2002, Kerry (Canada) Inc., request-ed a hearing regarding the Superintendent’sNotice of Proposal dated April 22, 2002, tomake an Order that the Employer reimbursethe pension fund (the “Fund”) of the Plan forall amounts paid out of the Fund after January 1,1985 for expenses which were not incurred forthe exclusive benefit of the members andretired members of the Plan, their beneficiariesor estates and their contingent annuitants(other than taxes, interest and penalties leviedagainst the Fund or the income thereof); and toreimburse the Fund for all income that wouldhave been earned by the Fund if those expenseshad not been paid from the Fund; and that theEmployer amend the Plan and the Trust inrespect of the Fund so that all amendments tothe terms of the Plan and the Trust which per-mit expenses to be deducted from the Fund areconsistent with the 1954 Trust Agreement andthe 1954 Plan Document.


DCA Employees Pension Committee andWilliam Fitz, Pension Plan for theEmployees of Kerry (Canada) Inc.,Registration Number 238915, FST FileNumber P0192-2002;On May 27, 2002, William Fitz and the DCAEmployees Pension Committee, requested ahearing regarding the Superintendent’s Noticeof Proposal, dated April 22, 2002, to refuse to

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make an Order that the Plan be wound up,effective December 31, 1994, under section 69of the Pension Benefits Act; to refuse to order,under section 87 of the Act, that Kerry (Canada)Inc. pay to the pension fund of the Plan allemployer contributions for which a contribu-tion holiday have been taken since January 1,1985, in connection with the service ofemployees who joined the Plan either before orafter December 31, 1994, together with incomethat would have been earned by the Fund ofthe Plan if those contributions had been made;and to refuse to order that registration of theRevised and Restated Plan Text dated January 1,2000, and all amendments to the Plan includedtherein, be refused under section 18(1)(d) ofthe Act.


Plumbers Local 463 Pension Plan,Registration Number 0598532, FST FileNumber P0190-2002;On May 16, 2002, the Board of Trustees of thePlumbers Local 463 Pension Plan Trust Fund(the “Board of Trustees”), requested a hearingregarding an Order dated April 11, 2002 of theDeputy Superintendent, Pensions, to make anOrder under subsection 106(13) of the PensionBenefits Act. In his Order, the DeputySuperintendent ordered that the Board ofTrustees pay the cost of an examination, inves-tigation or inquiry in respect of the Plan andpension fund for the Plan; and the cost of anyopinion, report or professional attestation pre-pared following the examination, investigationor inquiry.


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Financial Hardship Application to the Superintendent of Financial Services for Consent to Withdraw Money from aLocked-in Retirement Account, Life Income Fund or Locked-in Retirement Income Fund based onFinancial Hardship.

FST File Number Superintendent of Financial Services’ Comments Notice of Proposal:

U0177-2002 To Refuse to Consent, Withdrawn March 11, 2002dated November 22, 2001

U0179-2002 To Refuse to Consent, Reasons for Decision dated November 22, 2001 dated May 29, 2002

U0180-2002 To Refuse to Consent, Reasons for Decision dated December 21, 2001 dated June 20, 2002

U0184-2002 To Refuse to Consent, Reasons for Decision dated January 25, 2002 dated May 14, 2002

U0185-2002 To Refuse to Consent, Reasons for Decision dated January 17, 2002 dated April 19, 2002

U0186-2002 To Refuse to Consent, Reasons for Decision dated January 11, 2002 dated May 29, 2002

U0189-2002 To Refuse to Consent, Reasons for Decision dated March 4, 2002 dated May 9, 2002

Decisions to be Published

Brewers Retail

CBS Canada Co.

National Steel Car

U0179-2002 Reasons

U0180-2002 Reasons

U0184-2002 Reasons

U0185-2002 Reasons

U0186-2002 Reasons

U0189-2002 Reasons

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(Note: Only FST decisions pertaining to pensionsare included in this section.)

(Note: In this section, “Commission” refers to theFinancial Services Commission of Ontario.)


AND IN THE MATTER OF a proposal by theSuperintendent of Financial Services (the“Superintendent”) to refuse to approve thePartial Wind Up Report for WestinghouseCanada Inc. Pension Plan, Registration No.348409, in respect of business carried on byWestinghouse Canada Inc. at its Burlington,Ontario plant;

AND IN THE MATTER OF a proposal by theSuperintendent to refuse to approve the PartialWind Up Report for the Westinghouse CanadaInc. Pension Plan, Registration No. 348409, inrespect of business carried on by WestinghouseCanada Inc. at its London, Ontario andSt. Jean, Quebec plants;

AND IN THE MATTER OF a proposal by theSuperintendent to refuse to approve the PartialWind Up Report for the Westinghouse CanadaInc. Pension Plan, Registration No. 348409, inrespect of business carried on by WestinghouseCanada Inc. at its Motors Division plant;

AND IN THE MATTER OF a proposal by theSuperintendent to refuse to approve the PartialWind Up Report for the Westinghouse CanadaInc. Pension Plan, Registration No. 348409, inrespect of business carried on by WestinghouseCanada Inc. at its Beach Road plant inHamilton, Ontario;

AND IN THE MATTER OF a proposal by theSuperintendent to refuse to approve the PartialWind Up Report for the Westinghouse CanadaInc. Pension Plan, Registration No. 526632, inrespect of business carried on by WestinghouseCanada Inc. at its London, Ontario and St. Jean,Quebec plants;

AND IN THE MATTER OF a proposal by theSuperintendent to refuse to approve the PartialWind Up Report for the Westinghouse CanadaInc. Pension Plan, Registration No. 526632, inrespect of business carried on by WestinghouseCanada Inc. at its Motors Division plant;

AND IN THE MATTER OF a hearing in accor-dance with subsection 89(8) of the Act.

BETWEEN:

CBS CANADA CO.

Applicant

– and –

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Financial Services Tribunal Decisions with Reasons

INDEX NO.: FST File Number P0164-2001

PLAN: Westinghouse Canada Inc. Pension Plan, Registration Numbers 348409 and 526632

DATE OF DECISION: March 4, 2002

PUBLISHED: Bulletin 11/3 and FSCO website

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SUPERINTENDENT OF FINANCIALSERVICES

Respondent

– and –

NATIONAL, AUTOMOBILE, AEROSPACE,TRANSPORTATION

AND GENERAL WORKERS UNION OFCANADA (CAW-CANADA)

AND ITS LOCAL 504

A Party in Relation to Certain of theProceedings

BEFORE:

Mr. Colin H.H. McNairn,Vice Chair of the Tribunal and Chair of the Panel

Mr. Louis Erlichman,Member of the Tribunal and of the Panel

Mr. C.S. Moore,Member of the Tribunal and of the Panel

APPEARANCES:

For CBS Canada Co.Mr. Andrew K. LokanMr. Steve Fruitman

For the Superintendent of FinancialServicesMs. Deborah McPhailMr. Mark Bailey

For the CAW-Canada and its Local 504Mr. Louis Gottheil

For ABB Inc.Ms. Elizabeth M. Brown

HEARING DATES:February 4-5, 2002

REASONS FOR DECISION ONJURISDICTIONAL MOTION

Facts

CBS Canada Co. (“CBS”), the applicant in theseproceedings, is the successor to WestinghouseCanada Inc. (“Westinghouse”). CBS requestedhearings before this Tribunal in respect of sixseparate Notices of Proposal, issued by theSuperintendent of Financial Services (the“Superintendent”), to refuse to approve sixPartial Wind Up Reports filed by CBS. Four ofthe reports concern partial wind ups ofWestinghouse Pension Plan Registration No.348409, being a plan for the hourly paidemployees of Westinghouse (the “WestinghouseHourly Plan”). Two of the reports concern par-tial wind ups of Westinghouse Plan RegistrationNo. 526632, being a plan for the salariedemployees of Westinghouse (the “WestinghouseSalaried Plan”). The grounds for the proposedrefusals, relied on in each of the Notices ofProposal, are a failure of the partial wind upreports,

a) to treat company request early retirementbenefits, and related bridge benefits, underthe relevant Plan as consent benefits undersection 74 of the Act, and

b) to provide for the distribution of the surplusassets related to the affected partial wind upgroup.

At a pre-hearing conference, the variousrequests for hearing were directed to be heardtogether. At the same conference, CAW-Canadaand its Local 504 (“CAW-Canada”), which wasthe bargaining agent for the hourly paidemployees of Westinghouse, was added as aparty to the proceedings involving theWestinghouse Hourly Plan. CAW-Canada wasalso given the right to participate in the pro-ceedings involving the Westinghouse Salaried

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Plan to the extent of cross-examining witnessesand making submissions.

The partial wind ups of the Plans, to which thereports relate, occurred against the followingbackground. In the 1980s and early 1990s,Westinghouse went through a significantrestructuring of its operations. In some cases,Westinghouse sold certain of its plants, or partsof its plants, as going concerns. In one case, thesale related to the plant of a joint venture inwhich Westinghouse was a participant and towhich it had sold one of its businesses. In othercases, it closed plants, or parts of plants, or sim-ply reduced the workforces in its facilities.Specifically, it closed its Motors Division opera-tions at a plant in Hamilton, Ontario and soldthe balance of the business at that plant, whichwas operated by a joint venture, part of a plantin St. Jean, Quebec and plants in London andBurlington, Ontario to Asea Brown Boveri Inc.,now called ABB Inc. (“ABB”), pursuant to anasset purchase agreement. Effective upon thesale, ABB created two wrap-around pensionplans (the “ABB Hourly Plan” and the “ABBSalaried Plan”), providing virtually identicalbenefits to those under the WestinghouseHourly Plan and the Westinghouse SalariedPlan, for employees who transferred to ABB inconnection with the sale. CAW-Canada contin-ued to represent the transferred employees astheir bargaining agent, now in connection withthe collective bargaining relationship to theirnew employer, ABB.

During the period from 1991 to 1994, ABBclosed the various plants that it had acquiredfrom Westinghouse, terminating the remainingemployees who had transferred fromWestinghouse in connection with that acquisi-tion. ABB declared partial wind ups of the ABBHourly Plan and the ABB Salaried Plan in respectof the closure of the London and St. Jean

plants. In February of 1994, the Superintendentapproved the reports in respect of those partialwind ups that were filed by ABB, althoughthose reports did not treat company requestearly retirement benefits provided for by thePlans as consent benefits under section 74 ofthe Act. In July of 1996, the Superintendentissued a Notice of Proposal to refuse to approvea report filed by ABB on the wind up of theABB Hourly Plan, upon the closure of theBurlington plant, in part because companyrequest early retirement benefits had not beentreated as consent benefits under section 74 ofthe Act. ABB requested a hearing before thePension Commission of Ontario (the “PCO”) inrespect of that Notice of Proposal. CAW-Canadais a party in that proceeding. In January 1999, apre-hearing conference was held in the PCOproceeding at which ABB took the position thatthe issue relating to company request earlyretirement benefits was addressed by a revisedwind up report that it had filed and that thepre-hearing conference should be adjournedbecause ABB’s liabilities under the ABB HourlyPlan could not be finally calculated untilWestinghouse had filed reports in relation tothe partial wind ups of the WestinghouseHourly Plan. The PCO pre-hearing conferencewas, in fact, adjourned and continues to standadjourned.

Upon the closure of its Motors Division in Juneof 1995, Westinghouse declared partial windups of the Westinghouse Hourly Plan and theWestinghouse Salaried Plan. The reports thatwere filed in respect of those partial wind upswere conditionally approved by theSuperintendent in February of 1999, subject tofurther adjustment upon determination ofwhether company request early retirementbenefits were payable. In September of 1999,CAW-Canada made detailed submissions to the

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Superintendent on the reports, addressing atlength its position that company request earlyretirement benefits ought to be paid.

In January of 1999, the Superintendent orderedpartial wind ups of the Westinghouse HourlyPlan and the Westinghouse Salaried Plan, onthe basis of the closure by ABB of its London,St. Jean, Hamilton and Burlington plants. Bythis time, it had been established in GencorpCanada Inc. v. Ontario (Superintendent ofPensions) (1998), 39 O.R. (3d) 38 (C.A.), thata wind up of an employer’s pension plan couldbe triggered by the closure of a plant by asuccessor employer.

CBS filed four reports in respect of these partialwind ups in March of 2000 and counsel forCAW-Canada was advised of these filings. OnSeptember 8, 2000, copies of three of thereports – those relating to the WestinghouseHourly Plan – were provided to CAW-Canada.On September 28, 2000, the Superintendent,acting through her delegate the Director of thePension Plans Branch of the Financial ServicesCommission of Ontario, approved all four ofthe reports. On October 4, 2000, counsel forCAW-Canada, apparently unaware of thoseapprovals, wrote to counsel for the Superinten-dent indicating that CAW-Canada intended tomake submissions with respect to the reportsrelating to the Westinghouse Hourly Plan.

On November 17, 2000, the Director of thePension Plans Branch advised CBS, CAW-Canada and ABB in writing that he was of theview that all four approvals were granted inbreach of the duty of fairness and were, there-fore, null and void. On December 8, 2000, afterreceiving written submissions from CBS, CAW-Canada and ABB, the Director, acting onceagain as delegate of the Superintendent, re-affirmed the view he had expressed earlier to

the effect that the approvals were null and voidfor breach of fairness, thereby effectivelyrescinding the approvals.

On May 9, 2001, following further submissionsfrom CBS and CAW-Canada, the Superinten-dent issued four Notices of Proposal to refuse toapprove the reports filed by CBS, in respect ofone or the other of the Westinghouse HourlyPlan and the Westinghouse Salaried Plan, relat-ing to the four partial wind ups triggered bythe ABB plant closures. On May 16, 2001, theSuperintendent issued two Notices of Proposalto refuse to approve the reports filed by CBS, inrespect of one or the other of the WestinghousePlans, relating to the partial wind ups triggeredby the closure by Westinghouse of its MotorsDivision. These six Notices of Proposal are theNotices of Proposal that are the subject of theseproceedings. The grounds for the proposedrefusals in each of the Notices are as recited atthe beginning of this statement of facts.

The current motion before the Tribunal wasbrought by CBS with a view to obtaining thedetermination of the Tribunal on four prelimi-nary or jurisdictional issues. At the pre-hearingconference, ABB was granted limited partystatus for the purpose of enabling it to partici-pate in the hearing on the motion in so far asit concerns the issues that could have a directimpact on ABB, namely the first two issuesconsidered below.

Issue No. 1

Does the Tribunal have jurisdiction toconsider:

(i) whether CBS or ABB bears responsi-bility for payment of the benefitsin issue under the terms of theirrespective pension plans; or

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(ii) to the extent that CBS is responsi-ble, is ABB required to indemnifyCBS?

It was accepted by all of the parties that theTribunal is not entitled to make an order inthese proceedings that would determine theresponsibility of ABB, under its pension plans,to the former employees of Westinghouse whohad become its employees. The Notices ofProposal that have been challenged in theseproceedings relate only to partial wind upreports that have been filed in respect of theWestinghouse plans. The question that thisTribunal will ultimately have to answer iswhether those reports should be approved bythe Superintendent having regard, particularly,to the criteria set out in subsection 70(5) of theAct. After making that determination, theTribunal will be constrained, in deciding whatorder it should make, by subsection 89(9) ofthe Act. That provision would allow theTribunal to direct the Superintendent to carryout the proposal in one or other of the Noticesof Proposal, or to refrain from carrying out anysuch proposal, “and to take such action as theTribunal considers the Superintendent ought totake in accordance with” the Act and the regu-lations under it. We are of the opinion that anydirection by the Tribunal to the Superintendentto take particular action, in accordance withthe Act or regulations, must be closely relatedto the subject matter of, or the circumstancesunderlying, the proposal that the Tribunal hasdirected the Superintendent to carry out or torefrain from carrying out. In these proceedings,an order directing the Superintendent to takeaction in respect of the wind up, in whole or inpart, of ABB’s pension plans would be too farremoved from the Notices of Proposal that arebefore the Tribunal to be authorized by subsec-tion 89(9) of the Act.

However, CBS maintained that the Tribunalhad what it characterized as “plan text jurisdic-tion.” By this, it meant that the Tribunal, ininterpreting the Westinghouse pension plans,could properly look at the ABB pension plansand consider the inter-relationships betweenthe pension plans of the successive employersof the plan members affected by certain of thepartial wind ups of the Westinghouse plans.It would be logical, CBS said, to take thisapproach with a view to trying to avoid a situa-tion where those employees could “double-dip”by getting a duplication of benefits under thepension plans of the two employers on thewind up of those plans. One might add that asimilar logic would support this approach inorder to try to avoid a situation, if at all possi-ble, where those employees would be denied aparticular type of benefit, which one wouldexpect would be available on a wind up, underboth of their employers plans.

We agree that the Tribunal might well find itappropriate, in the course of these proceedings,to assume “plan text jurisdiction” over the ABBplans in this limited sense, i.e., a jurisdictionthat allows it to consider one or other of theABB plans as an aid to interpreting theWestinghouse plans. This is not to say that thePension Commission of Ontario, in its proceed-ing concerning the Superintendent’s Notice ofProposal to refuse to approve the wind upreport in respect of ABB’s Hourly Plan, wouldbe bound by an interpretation of that plan or afactual finding in relation to that plan arrivedat by this Tribunal in the course of these pro-ceedings. It would be a matter for thatCommission to determine how persuasive thisTribunal’s interpretation or finding should be,having regard, among other things, to the factthat ABB was given the opportunity to partici-pate in these proceedings (a similar approach

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was taken, in obiter comments, by the arbitra-tion board in Re Scarborough General Hospitaland C.U.P.E., Loc. 1487 (1999), 79 L.A.C. (4th)246, see esp. at pp. 258-260 (Ont.; L.M. Davie,J. Solberg and R. Charney)). There can certainlybe no advance assurance that determinationsmade by this Tribunal, in these proceedings,will not affect the interests of ABB in any wayor that ABB will be given notice and the oppor-tunity to make representations if and when anydetermination that might affect its interests isabout to be made by this Tribunal.

We were also asked, by the terms of the motion,if the Tribunal has jurisdiction to considerwhether ABB is required to indemnify CBS forthe amount of any of the benefits at issue inthis case the payment of which we might findto be the responsibility of CBS. There are, infact, a number of indemnity provisions in theasset purchase agreement under which ABBacquired the businesses of Westinghouse. Someof these indemnities run from ABB in favour ofCBS, including an indemnity that is specific tothe situation where Westinghouse incurs costs,beyond those for which it retains responsibility,as a result of a partial wind up of a Westinghousepension plan that is triggered by the actions ofABB (paragraph 5.3(f)). ABB pointed out, inargument, that the enforceability of theseindemnity provisions will involve considerationof the potential application of limitationperiods within which indemnity claims mustbe made and that, in any event, the asset pur-chase agreement provides for the resolution ofany disputes arising out of the agreement or itsinterpretation by arbitration (section 17.11).

The parties were in apparent agreement thatthe Tribunal could not make a binding determi-nation as to whether the asset purchase agree-ment imposed an enforceable obligation onABB to indemnify CBS if we were to find CBS

responsible for payment of the benefits at issuein this case. However, CBS maintained that theTribunal had, at least, “agreement jurisdiction”with the result that it could look to the assetpurchase agreement – not just its indemnityprovisions – as an aid to interpreting theWestinghouse plans. It was important, CBSargued, for this Tribunal to make it abundantlyclear what latitude it has to interpret the termsof the asset purchase agreement since a courtwould be likely to defer to the Tribunal for aninitial view of the meaning of those terms tothe extent that they are relevant in these pro-ceedings. In this respect, it relied particularlyon the decision of the Ontario Court GeneralDivision in Ontario Hydro v. Kelly (1998), 39O.R. (3d) 107. We do not think that the inter-pretation of any of the terms of the asset pur-chase agreement is sufficiently connected tothe subject matter of these proceedings, orwithin the special expertise of this Tribunal,that a court would be likely to defer to theTribunal in this way.

Although the foreword to each of the ABBpension plans refers to the sale of theWestinghouse businesses to ABB as the reasonfor the establishment of the ABB plan, it alsomakes it clear that the plan provides for bene-fits accruing to eligible members after theeffective date of the sale, reciting that benefitsaccrued to the credit of those same individualsbefore the effective date of the sale remainthe sole responsibility of the comparableWestinghouse plan. The asset purchase agree-ment is not incorporated into either employer’splan so as to be subject, for that reason, tointerpretation by this Tribunal in any determi-nation of responsibility for payment of thebenefits that are at issue in this case.

All of this said, we are of the opinion thatsome of the provisions of the asset purchase

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agreement might prove to be relevant in theseproceedings and that the Tribunal might haveoccasion to use the agreement in some way tointerpret the Westinghouse plans. The persua-sive force of the Tribunal’s conclusions aboutthat agreement, in any subsequent proceedingbefore an adjudicator to resolve a dispute underthe agreement, would be for the adjudicator todetermine. The situation would not be materi-ally different from that where the Tribunal hasexpressed its views about the terms of one orthe other of the ABB pension plans and thoseterms subsequently come directly into issue inanother proceeding.

Issue No. 2

Does the Tribunal have jurisdiction toadd ABB as a party without ABB’sconsent when ABB has not sought partystatus?

In the course of the hearing on the motion, weindicated that we had decided to refuse tomake an order adding ABB as a party to theseproceedings and that our reasons for this deci-sion would be included in the reasons for ourdispositions on the motion generally.

CBS argued that the Tribunal has jurisdiction toadd ABB as a party under the broad authorityof subsection 89(11) of the Act, which says that:

The Superintendent, the person who requiresa hearing and such other persons as theTribunal specifies are parties to the proceed-ing before the Tribunal under this section.

Although the Interim Rules of Practice andProcedure for Proceedings before the FinancialServices Tribunal only provide, in specificterms, for the addition of a party on applica-tion to the Tribunal, CBS maintained that aparty could be added in the absence of such anapplication pursuant to Rule 2.02. That Rulesays that:

Where procedures are not provided for inthese Rules, the Tribunal may do whatever isnecessary and permitted by law to effectivelydetermine the matter before it.

ABB argued that it would be illogical to treatRule 2.02 as available for this purpose given theright of any party to bring a motion to discon-tinue its participation in a proceeding beforethe Tribunal under Rule 42.02. Relying on Rule42.03, it suggested that any such motion couldnot be denied, although the granting of themotion could be subject to conditions, such asthe payment of costs by the party seeking todiscontinue participation. As to subsection89(11) of the Act, ABB maintained that thepower that it conferred on the Tribunal tospecify parties to a proceeding should be readnarrowly, so as to avoid its use as a coercivemeasure, as simply allowing the Tribunal tospecify parties from among those who mayhave applied for such status.

We do not find it necessary to decide whetherthe Tribunal has the jurisdiction to order thatABB be added as a party since we do not thinkthat it would be necessary or appropriate tojoin ABB against its will in these proceedingsshould we have the jurisdiction to do so. CBSsupported the addition of ABB as a party on thebasis that it has information relevant to theseproceedings that is not also in the possession ofCBS, such as that pertaining to the severance ofABB employees who were members of theWestinghouse Plans. That information might bedifficult to obtain if ABB were not a party asABB does not currently have a presence withinthis jurisdiction. However, ABB advised,through its counsel, that it would co-operate bycausing the appropriate officers to respond tosubpoenas from this Tribunal, subject to theusual rules about attendance in response to asubpoena. As the responsibility of ABB under

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its plans and under the asset purchaseagreement are not directly at issue in theseproceedings, we do not think it appropriate totake the unusual step of mandating ABB’sparticipation as a party, especially given itsoffer of co-operation.

Issue No. 3

a) With respect to the September 28,2000 approvals of four wind upreports filed by CBS with respect tothe Westinghouse Hourly Plan(London/St. Jean, Burlington andBeach Road) and with respect to theWestinghouse Salaried Plan(London/St. Jean):

(i) Did the Superintendent have juris-diction to rescind the approvals;

(ii) If so, did the Superintendent errin rescinding such approvals;

(iii) If so, what procedural conse-quences should flow from suchrefusals?

There is nothing in the Act or the FinancialServices Commission of Ontario Act, 1997 thatgives the Superintendent the authority to re-consider, and revise or revoke, a decision thathe or she has made. There is no general author-ity to do so and there is no authority to do sowhen the decision involves the approval of apartial wind up report.

In the absence of such authority, the doctrineof functus officio comes into play. That doctrineis to the effect that an adjudicator – whether acourt or an administrative body – once havingmade its final decision cannot alter that deci-sion except in very limited circumstances (seeBrown & Evans, Judicial Review of AdministrativeAction in Canada (looseleaf), at pp. 12-80 to12-90). The doctrine, at least as it applies to

administrative bodies, is based on policy con-siderations that favour the finality of decisions(see Chandler v. Alberta Association of Architects(1989), 62 D.L.R. (4th) 577, at p. 596 (S.C.C.)).

The exceptions from the doctrine include onethat enables an administrative body to re-visitand correct a decision that was made in errorwhere the error is of a kind that makes thedecision null and void (see Chandler, supra, atp. 597). When an administrative body is subjectto a duty of procedural fairness, under commonlaw principles, in coming to a particular deci-sion, the failure to adhere to that duty rendersthe decision a nullity (see Jones & de Villars,Principles of Administrative Law (3rd ed., 1999),at pp. 231-234). Thus, a breach of the duty offairness in arriving at a “final” decision pro-vides a proper basis for the administrative bodythat made the decision rescinding it andsubstituting a new decision that is arrived at inaccordance with that duty.

The Superintendent acts as an adjudicator indeciding whether to approve a partial wind upreport under the Act and is subject to a duty offairness in exercising that function. This fol-lows from the decision of the OntarioDivisional Court in Re Collins & PensionCommission of Ontario (1986), 56 O.R. (2d) 274,esp. at pp. 289-290 & 295-296. In that case, thecourt held that the Pension Commission ofOntario, a predecessor of the Superintendent,owed a duty of fairness to pension plan mem-bers in considering an application by theiremployer, under the Act, for consent to thewithdrawal of surplus from their pension plan.That decision was recently followed inRetirement Income Plan for Salaried Employees ofWeavexx Corp. v. Ontario (Superintendent ofPensions) (2000), 24 C.C.P.B. 154 (addendum toreasons for judgment at (2000), 26 C.C.P.B.290) (Ont. Div. Ct.) (the decision of the

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Divisional Court was affirmed, with a variationin remedy, in an unreported decision of theCourt of Appeal dated February 14, 2002).

The real dispute among the parties on this IssueNo. 3 is as to what is required by the duty offairness in the circumstances of this case and asto whether the applicable requirements werebreached by the Superintendent in arriving atthe initial decisions to approve four of the windup reports filed by Westinghouse.

The Supreme Court of Canada has stated, inBaker v. Canada (Minister of Citizenship andImmigration), [1991] 2 S.C.R. 817, that the “dutyof fairness is flexible and variable and dependson an appreciation of the particular statute andthe rights affected … ” The court set out fivefactors that should be taken into account indetermining what procedural rights the duty offairness requires. Underlying all of these factors,the court noted,

is the notion that the purpose of the partici-patory rights contained within the duty ofprocedural fairness is to ensure that adminis-trative decisions are made using a fair andopen procedure, appropriate to the decisionbeing made and its statutory, institutionaland social context, with an opportunity forthose affected by the decision to put forwardtheir views and evidence fully and havethem considered by the decision-maker.(At p. 837.)

The factors listed by the court are as follows:

(a) the nature of the decision being made andthe process followed in making it (the clos-er to the judicial model, the more likelythat procedural protections akin to those ina trial setting will be required);

(b) the statutory scheme and the terms of thestatute pursuant to which the decision-making body operates (for example, greater

procedural protections will be requiredwhen no appeal process is provided withinthe statute);

(c) the importance of the decision to the indi-vidual or individuals affected (the moreimportant the decision is to the lives ofthose affected, the greater the proceduralprotections that will be required);

(d) the legitimate expectations of the personchallenging the decision (this factor takesaccount of promises and regular practices ofadministrative decision-makers, recognizingthat it would be generally unfair to act incontravention of representations as to pro-cedure); and

(e) the choice of procedure made by thedecision-making body itself, in light of rele-vant institutional constraints (this factorrecognizes that some deference should bepaid to the choice of procedure made by thedecision-maker, particularly if the chosenprocedure is within the range of those pro-cedures contemplated by the governingstatute or if the decision-maker has expertisein deciding on the appropriate procedure).

In the earlier case of Wiswell v. MetropolitanCorporation of Greater Winnipeg (1965), 51 D.L.R.(2d) 754, the Supreme Court of Canada con-cluded that a “known opponent” to particularaction that was taken after a hearing by a quasi-judicial body should have been given specificnotice of the hearing. The action in question inthis case was that of a city council in “down-zoning” a particular property, which the“known opponent” – a homeowners associa-tion – could be expected to oppose givenprevious representations it had made to the cityand its zoning board against potential highdensity development of the subject property.Although notice of the hearing was published

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in two local daily newspapers, the failure of thecity to give specific notice to the association,along with a failure to post the notice on theproperty in accordance with the city’s own pro-cedures, amounted to a breach of the city’sduty to act in good faith and fairly listen toboth sides in a dispute. The failure to givenotice directly to the association in this casewas particularly telling given that the city hadcommunicated with the association a fewmonths before the hearing in a manner thatwould suggest that there was nothing furtherthat could be done by the association at thatstage to further its opposition to the highdensity development of the property.

We now have to consider the application of theprinciples in Wiswell and Baker to the circum-stances of this case.

It seems to us that CAW-Canada, prior to theinitial approval by the Director of the PensionPlans Branch of the three wind up reports relat-ing to the Westinghouse Hourly Plan, was in asimilar position to the “known opponent” inWiswell given the fact that it was on recordwith the office of the Superintendent as havingan interest in making submissions to the effectthat company request early retirement benefitswere payable under the Westinghouse HourlyPlan upon a partial wind up. In August of 1999,in response to certain inquiries that had beenmade by CAW-Canada about four of the partialwind ups of the Westinghouse Plans, counselfor the Superintendent asked CAW-Canada if itintended to make submissions on the issue ofwhether company request early retirementbenefits were payable in relation to the partialwind up of the Westinghouse Hourly Plan thatwas occasioned by the closure of the MotorsDivision. Counsel for CAW-Canada respondedby saying that his client did, indeed, want tomake such submissions. In September of 1999,

CAW-Canada made extensive written submis-sions to counsel for the Superintendent to theeffect that such benefits were payable.

On April 3, 2000, counsel for the Superinten-dent advised CAW-Canada of receipt of the fourreports relating to the partial wind up of theWestinghouse Plans arising out of the ABBplant closures, promising to keep CAW-Canada“advised of the progress.” However, in the caseof these reports, CAW-Canada received noinquiry from the office of the Superintendentabout its intention to make submissions andthe reports were approved on September 28,2000, without the apparent knowledge ofCAW-Canada.

CBS argued that CAW-Canada had had theopportunity to make its submissions on thecompany request early retirement benefitsissue in the context of the Superintendent’sconsideration of the partial wind up of theWestinghouse Hourly Plan that was occasionedby the closure of the Motors Division. But theremay have been differences in the underlyingfacts, or in the position taken by CBS, in rela-tion to the partial wind ups triggered by theABB plant closures that might have dictated dif-ferent submissions from CAW-Canada in thatcontext or, indeed, CAW-Canada may have sim-ply chosen to remind the Superintendent of itsearlier submissions if it had been given thechance to do so. In either event, the opportuni-ty to make submissions could have proven tobe meaningful and could conceivably haveinfluenced the decision of whether the wind upreports should be approved.

CAW-Canada cannot, however, be properlytreated as a “known opponent” in relation tothe approval of the report on the partialwind up of the Westinghouse Salaried Plan thatwas later rescinded by the Superintendent.

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CAW-Canada did not represent any of themembers of that Plan. The common languageof the two Westinghouse Plans on the subjectof company request early retirement benefitsand the common circumstances that gave riseto the partial wind ups of the two Plans do notgive CAW-Canada the status of a party in oppo-sition or dispute in any of the proceedingsbefore the Superintendent in respect of a partialwind up of the Westinghouse Salaried Plan.

We now turn to the factors outlined in Bakerin their application to the circumstance ofthis case.

(a) The Nature of the Decision

The decision of the Superintendent to approvea partial wind up report is clearly one in whichemployees who have lost their jobs as a resultof the event giving rise to the partial wind uphave a direct interest. Thus, given the nature ofthe decision, there may well be a lis or disputebetween parties, in this case between a unionthat represents employees affected by the par-tial wind up and the employer, that is similarto the lis or dispute that characterizes judicialproceedings.

(b) The Statutory Scheme

It is significant that the Act is, in the words ofthe Ontario Court of Appeal in Firestone CanadaInc. v. Ontario (Pension Commission) (1990),1 O.R. (3d) 122, “clearly intended to benefitemployees” and “[i]n particular … evinces aspecial solicitude for employees affected byplant closures” (at p. 127). Indeed, when inreceipt of a request for approval of a wind upreport, the Superintendent is directed, by sub-section 70(5) of the Act, to refuse approval ifthe report “does not protect the interests of themembers and former members of the pensionplan.” All of this suggests that the proceduralprotections that the Superintendent affords

employees, particularly those affected by plantclosures and resulting pension plan wind ups,as in this case, should be more than minimal.

In the course of the hearing on this motion, weheard differing views on whether the Act allowsfor a review by this Tribunal, at the instigationof plan members or their bargaining agent, of adecision of the Superintendent to approve apartial wind up report. If it does, this wouldsuggest that the procedural rights of CAW-Canada before the Superintendent, in this case,should be tempered by the fact that they wouldnot give CAW-Canada its only opportunity (atleast short of going to court by way of judicialreview) to make submissions against theapproval of the partial wind up reports for theWestinghouse Hourly Plan. However, as CAW-Canada pointed out in argument, it is danger-ous to attribute too much to the existence ofany right to request a hearing before theTribunal as the pursuit of such a requestinvolves a commitment of resources that awould-be requester may not have. Of course, aconsiderable delay is also involved in having toawait a Tribunal hearing before being accordedthe right to make submissions.

We do not find it necessary, in this case, todecide whether anyone would have the right,under the Act, to request a hearing before theTribunal in respect of an approval by the Super-intendent of a partial wind up report since thereare other considerations that provide adequatesupport for our conclusions on Issue No. 3.

(c) The Importance of the Decision to theIndividuals Affected

It goes without saying that any decision of theSuperintendent to approve a partial wind upreport could be extremely important to affectedemployees, such as those represented byCAW-Canada. The older members of that group

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and their families may be particularly depen-dent on early retirement benefits which CAW-Canada would, most likely, have put in issue inthis case, upon the Superintendent’s initial con-sideration of the reports relating to the partialwind ups of the Westinghouse Hourly Plan, hadit been given the opportunity to do so.

(d) The Legitimate Expectations of thePerson Challenging the Decision

We have concluded that CAW-Canada had alegitimate expectation that it would be giventhe opportunity to make submissions to theSuperintendent in connection with CBS’srequest for approval of the reports on the par-tial wind ups of the Westinghouse Hourly Planoccasioned by the ABB plant closures. A letterof October 4, 2000, written by counsel forCAW-Canada to counsel for the Superinten-dent, indicates that CAW-Canada was reviewingthose reports, which it had recently received,and intended to file written submissionsshortly. CAW-Canada was apparently unaware,at the time, that the reports had already beenapproved – on September 28, 2000.

The expectation that CAW-Canada had that itwould be given the opportunity to make sub-missions was legitimate given the conduct ofthe office of the Superintendent. First, thatoffice had given CAW-Canada that very oppor-tunity in connection with its consideration ofthe report relating to the partial wind up of theWestinghouse Hourly Plan occasioned by theclosure of the Motors Division. CAW-Canadahad availed itself of that opportunity, makingsubmissions about entitlement to companyrequest early retirement benefits, which couldreasonably be expected to be an issue forCAW-Canada in connection with the partialwind ups of the same Plan occasioned by theABB plant closures. Second, counsel for the

Superintendent told CAW-Canada, by letter ofApril 3, 2000, that the reports on those partialwind ups had been received and that CAW-Canada would be kept advised.

(e) The Choice of Procedure by theSuperintendent in Light of InstitutionalConstraints

While the Superintendent chose not to inviteCAW-Canada to make submissions with respectto the reports on the partial wind ups of theWestinghouse Hourly Plan occasioned by theABB plant closures, it doesn’t appear to us thatproviding such an opportunity in this andsimilar situations would unduly constrain theapproval process before the Superintendent.If the Superintendent had to give notice and anopportunity to make representations individu-ally to all plan members affected by a wind up,that might unduly constrain the approvalprocess. But that is not this case.

We have therefore concluded that the Super-intendent did have jurisdiction to rescind theapprovals of the three wind up reports relatingto the Westinghouse Hourly Plan in that therewas a breach of the duty of fairness in thegranting of those approvals for failure to giveCAW-Canada the opportunity to make writtensubmissions. We do not believe that theSuperintendent erred in exercising that jurisdic-tion. We have concluded, however, that therewas no breach of the duty of fairness in thegranting of approval of the wind up reportrelating to the Westinghouse Salaried Plan.Accordingly, there was no basis for theSuperintendent rescinding that approval.The consequence is that this approval mustbe reinstated.

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Issue No. 4

Does the Tribunal have jurisdiction todirect the Superintendent to refuse toapprove the partial wind up reports forthe Westinghouse Hourly Plan on thebasis that they do not provide for specialearly retirement benefits under Article6.06 of the Plan when this is not aground raised in the relevant Notices ofProposal?

The four Notices of Proposal to refuse toapprove partial wind up reports in respect ofthe Westinghouse Hourly Plan do not refer to afailure to provide for special early retirementbenefits as a reason for the proposed refusals.However, after reciting the specific reasons forthe proposals, the Notices purport to rely, aswell, on such further and other reasons as cometo the attention of the Superintendent. The Actrequires that a notice of proposal be accompa-nied by written reasons (see subsection 89(4)),but does not expressly limit any requested hear-ing before the Tribunal, with respect to suchnotice, to a consideration of those reasons.

Before the issue of the Notices of Proposal, onMay 9, 2001, CAW-Canada made submissionsto the Superintendent to the effect that thewind up reports to which three of those Notices(those concerning the Westinghouse HourlyPlan) relate were deficient, among other rea-sons, for failure to provide for the payment ofspecial early retirement benefits. These submis-sions were copied to counsel for CBS and coun-sel for ABB. In its application for party status inthese proceedings, CAW-Canada also indicatedthat it would submit that the relevant wind upreports should not be approved because theyfailed to provide the special early retirementbenefits contemplated by the WestinghouseHourly Plan. CBS cannot, therefore, claim to be

taken by surprise if this Tribunal were toentertain arguments in these proceedings thatthe four partial wind up reports relating tothe Westinghouse Hourly Plan should not beapproved because they don’t make provisionfor special early retirement benefits.

We have concluded that we have the jurisdic-tion to consider that possible ground for refusalby virtue of subsection 89(9) of the Act, as readwith subsection 70(5) of the Act. Subsection89(9) authorizes the Tribunal to order theSuperintendent “to take such action as theTribunal considers the Tribunal ought to take inaccordance with the Act and the regulations,”in association with an order to the Super-intendent to carry out or refrain from carryingout a particular proposal.

In the case of a request for approval of a windup report, we believe that, generally speaking,the action the Superintendent ought to take isto refuse such approval, in accordance withsubsection 70(5), if the report “does not meetthe requirements of [the] Act and the regula-tions or … protect the interests of the membersand former members of the pension plan.”Should a partial wind up report fail to providefor the payment of special early retirementbenefits to qualifying members of the partialwind up group that are called for by the plan,we think that the report would, indeed, fail to“protect the interests of the members and for-mer members of the pension plan.” Even if theSuperintendent can be said to have implicitlyrejected the argument that special earlyretirement benefits are payable under theWestinghouse Hourly Plan, that does not pre-clude this Tribunal from re-considering thatargument since the Tribunal is entitled, undersubsection 89(9) of the Act, to “substitute itsopinion for that of the Superintendent” inordering the Superintendent “to take such

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action as the Tribunal considers theSuperintendent ought to take in accordancewith [the] Act and regulations.” As the Tribunalsaid in its Reasons for Orders, dated January 8,2002, in Independent Order of Foresters v.Superintendent of Financial Services et al., FST FileNo. P0155-2001, “the Tribunal … does notsimply review decisions or proposed decisionsof the Superintendent but hears each case‘de novo’” (at p. 4).

When an issue is raised before the Tribunalwithout the benefit of any findings on theunderlying facts, if they are disputed, or with-out any considered opinion of the Super-intendent, the Tribunal would be entitled,under subsection 89(9), to refer the matter backto the Superintendent to make the appropriatefindings and take a position on the issue.However, we think that the referral approach isin the discretion of the Tribunal and that sub-section 89(9) also permits the Tribunal toaddress such an issue as one of first impression.If any fact finding is required, the Tribunal isnot without its own processes for engaging inthat exercise.

We therefore conclude that the Tribunal doeshave jurisdiction to direct the Superintendentto refuse to approve the partial wind up reportsfor the Westinghouse Hourly Plan on the basisthat they do not provide for special early retire-ment benefits under Article 6.06 of that Plan,even though this was not a ground for refusalthat was raised in the relevant Notices ofProposal. Of course, the question of whethersuch benefits are required to be paid under thatPlan, in the circumstances of this case, remainsto be addressed at the hearing on the merits inthese proceedings.

ORDER

Having regard to our conclusions on Issue No. 3,we order the Superintendent to refrain fromcarrying out the proposal to refuse to approvethe partial wind up report for WestinghousePension Plan Registration No. 526632 (theSalaried Plan) in respect of business carried onby Westinghouse at its London, Ontario andSt. Jean, Quebec plants. We further order theSuperintendent to issue forthwith a newapproval of that partial wind up report undercurrent date. Consequently, the style of cause,describing the matters to which these proceed-ings relate and identifying the parties, shall beamended by deleting the sixth paragraph,which refers to that particular partial wind upreport.

As noted in our discussion of Issue No. 2, werefused, at the hearing of this motion, to makean order adding ABB as a party to these pro-ceedings. That refusal shall be deemed to speakfrom the date of these reasons.

DATED at Toronto, this 4th day ofMarch, 2002.

Colin H.H. McNairn, Vice Chair of the Tribunal and Chair of the Panel

Louis Erlichman, Member of the Tribunal and of the Panel

C.S. Moore, Member of the Tribunal and of the Panel

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated January 17, 2002,with respect to an application for withdrawal ofmoney from a life income fund, locked-inretirement account, or a locked-in retirementincome fund (a “locked-in account”) based onfinancial hardship;

AND IN THE MATTER OF a Hearing undersubsection 89(8) of the Act;

REASONS:

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consent,dated January 17, 2002, that denied theApplicant access to funds associated with alocked-in account. The Applicant hadapplied to withdraw these funds, pursuantto subsection 67(5) of the Act, which readsas follows:

67.-(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirementsavings arrangement of a type that is

prescribed for the purposes of this subsec-tion if the Superintendent is satisfied as tothe existence of such circumstances offinancial hardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat this application (the “December 2001Application”), which was made on the basisof low income, was made within 12 monthsafter the date of another successful applica-tion (the “March 2001 Application”) madeon the basis of low income, contrary to theconditions imposed by subsections 89(4)and 89(5) of Ontario Regulation 909 asamended (the “Regulation”), as follows:

89.-(4) Only one application may be madeduring each 12-month period.

(5) An unsuccessful application is notcounted for the purposes of subsection (4).

3. The issue to be determined by the Tribunalis whether or not the Superintendentshould have consented to the December2001 Application.

4. The March 2001 Application was signed bythe Applicant on March 23, 2001. OnMarch 26, 2001, the Superintendent con-sented to withdrawal of $7,000.00 from theApplicant’s locked-in account, on the basisof the Applicant’s low income. Therefore,the March 2001 Application was a success-ful application.

5. On December 10, 2001, the Applicantsigned the December 2001 Application, inwhich she applied to withdraw the

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maximum amount allowed from herlocked-in account on the basis of lowincome. As this application was made with-in 12 months after the successful March2001 Application, which was made on thebasis of low income, the December 2001Application does not meet the conditionsset out in subsections 89(4) and 89(5) of theRegulation.

6. This Tribunal does not have the authorityto direct the Superintendent to allow anapplication for a withdrawal from a locked-in account that does not meet the require-ments of the Regulation. Although theevidence of financial hardship on the partof the Applicant may be compelling, theDecember 2001 Application cannot begranted because it fails to meet one of thoserequirements. However, as of today’sdate of April 19, 2002, more than12 months have passed since thedate of the successful March 2001Application, with the result that afurther application for withdrawalof locked-in funds can now be madeto the Superintendent. If the circum-stances of the Applicant are such thatshe wishes to do so, a new applica-tion should be submitted for consid-eration by the Superintendentwithout further delay.

7. In the circumstances, the Tribunal mustaffirm the Superintendent’s Notice datedJanuary 17, 2002 in respect of the December2001 Application.

ORDER:

The Superintendent is hereby directed to carryout the proposal contained in the Notice ofProposal to Refuse to Consent, dated January 17,2002, directed to the Applicant.

DATED at Toronto, this 19th day of April, 2002.

Mr. C. S. Moore,Member, Financial Services Tribunal

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated March 4, 2002 withrespect to an application for withdrawal ofmoney from an Ontario locked-in retirementaccount, life income fund or locked-in retire-ment income fund (a “locked-in account”)based on financial hardship;


REASONS:

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consentdated March 4, 2002 that denied theApplicant access to funds associated with alocked-in account. The Applicant hadapplied to withdraw these funds, pursuantto subsection 67(5) of the Act, which readsas follows:

67.-(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, in

whole or in part, of a prescribed retirementsavings arrangement of a type that is pre-scribed for the purposes of this subsection ifthe Superintendent is satisfied as to theexistence of such circumstances of financialhardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat this application (the “January 2002Application”), which was made on the basisof low income, was made within 12 monthsafter the date of another successful applica-tion (the “August 2001 Application”) madeon the basis of low income, contrary to theconditions imposed by subsections 89(4)and 89(5) of Ontario Regulation 909 asamended (the “Regulation”), as follows:



3. The issue to be determined by the Tribunalis whether or not the Superintendentshould have consented to the January 2002Application.

4. The August 2001 Application was signed bythe Applicant on August 30, 2001. OnSeptember 11, 2001, the Superintendentconsented to withdrawal of $19,150.00from the Applicant’s locked-in account, onthe basis of the Applicant’s low income.Therefore, the August 2001 Application wasa successful application.

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5. On January 10, 2002, the Applicant signedthe January 2002 Application, in which heapplied to withdraw the maximum amountallowed from his locked-in account on thebasis of low income. As this application wasmade within 12 months after the successfulAugust 2001 Application, which was madeon the basis of low income, the January2002 Application does not meet the condi-tions set out in subsections 89(4) and 89(5)of the Regulation.

6. This Tribunal does not have the authorityto direct the Superintendent to allow anapplication for a withdrawal from a locked-in account that does not meet the require-ments of the Regulation. Although theevidence of financial hardship on the partof the Applicant may be compelling, theJanuary 2002 Application cannot be grantedbecause it fails to meet one of those require-ments. If 12 months after the date of thesuccessful August 2001 Application, the cir-cumstances of the Applicant are such thathe could meet the qualifications for relianceon low income, a further such applicationfor withdrawal of locked-in funds can thenbe made to the Superintendent.

7. In the circumstances, the Tribunal mustaffirm the Superintendent’s Notice datedMarch 4, 2002, in respect of the January2002 Application.

ORDER

The Superintendent is hereby directed to carryout the proposal contained in the Notice ofProposal to Refuse to Consent, dated March 4,2002, directed to the Applicant.

DATED at Toronto, this 9th day of May, 2002.

Ms. K.M. Bush,Vice-Chair, Financial Services Tribunal

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated January 25, 2002,with respect to an application for withdrawal ofmoney from a life income fund, locked-inretirement account, or a locked-in retirementincome fund (a “locked-in account”) based onfinancial hardship;


REASONS:

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consent,dated January 25, 2002, that denied theApplicant access to funds associated with alocked-in account. The Applicant hadapplied to withdraw these funds, pursuantto subsection 67(5) of the Act, which readsas follows:

67.-(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirement

savings arrangement of a type that is pre-scribed for the purposes of this subsection ifthe Superintendent is satisfied as to theexistence of such circumstances of financialhardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat this application (the “September 2001Application”), which was made on the basisof low income, was made within 12 monthsafter the date of another successful applica-tion, made on the basis of low income andsigned by the Applicant on June 11, 2001(the “June 2001 Application”), contrary tothe conditions imposed by subsections89(4) and 89(5) of Ontario Regulation 909as amended (the “Regulation”), as follows:



3. The issue to be determined by the Tribunalis whether or not the Superintendentshould have consented to the September2001 Application.

4. The June 2001 Application was signed bythe Applicant on June 11, 2001. On June25, 2001, the Superintendent consented towithdrawal of $9,000.00 from theApplicant’s locked-in account, on the basisof the Applicant’s low income. Therefore,the June 2001 Application was a successfulapplication.

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5. On September 10, 2001, the Applicantsigned the September 2001 Application, inwhich he applied to withdraw the maxi-mum amount allowed from his locked-inaccount on the basis of low income. As thisapplication was made within 12 monthsafter the successful June 2001 Application,which was also made on the basis of lowincome, the September 2001 Applicationdoes not meet the conditions set out in sub-sections 89(4) and 89(5) of the Regulation.

6. This Tribunal does not have the authorityto direct the Superintendent to allow anapplication for a withdrawal from a locked-in account that does not meet the require-ments of the Regulation. Although theevidence of financial hardship on the partof the Applicant may be compelling, theSeptember 2001 Application cannot begranted because it fails to meet one of thoserequirements. However, on June 11, 2002,12 months will have passed since the dateof the June 2001 Application. If the circum-stances of the Applicant are such that hewishes to do so, a new application can thenbe submitted for consideration by theSuperintendent.

7. In the circumstances, the Tribunal mustaffirm the Superintendent’s Notice datedJanuary 25, 2002 in respect of theSeptember 2001 Application.

ORDER

The Superintendent is hereby directed to carryout the proposal contained in the Notice ofProposal to Refuse to Consent, dated January 25,2002, directed to the Applicant.


Mr. C. S. Moore,Member, Financial Services Tribunal

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated November 22, 2001,with respect to an application for withdrawalfrom a life income fund, locked-in retirementaccount, or a locked-in retirement income fund(a “locked-in account”) based on financialhardship;


REASONS:

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consentdated November 22, 2001 that denied theApplicant access to funds held in a locked-in account. The Applicant had appliedto withdraw these funds, pursuant tosubsection 67(5) of the Act, which reads asfollows:

67.(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirementsavings arrangement of a type that is

prescribed for the purposes of this subsec-tion if the Superintendent is satisfied as tothe existence of such circumstances offinancial hardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat the Applicant did not meet the condi-tions prescribed in Subsection 89(6) of theRegulation for a withdrawal based on lowincome.

3. The Superintendent also questioned thejurisdiction of the Tribunal to hold a hear-ing on the basis that the Applicant did notmeet the time limit for requesting a hearingunder Subsection 89(6) of the Act. TheTribunal has, however, received evidencethat the Applicant did in fact request ahearing within the prescribed time limit.Therefore, the Tribunal has jurisdiction tohold a hearing.

4. The only issue to be determined by theTribunal is therefore whether theSuperintendent should have consented tothe application.

5. An application for withdrawal based onfinancial hardship is subject to conditionsand requirements prescribed in sections 83through 89 of the Regulation. The relevantsections for this application are:

88(2) Subject to section 89…the owner isentitled to withdraw an amount calculatedusing the formula, A–(B–C) = D, in which

“A” is the amount the owner applies towithdraw;

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“B” is the market value of all assets of theowner…

“C” is the total of the liabilities of theowner…

“(B–C)” cannot be less than 0;

“D” is the amount the owner is entitled towithdraw, net of any withholding tax andfee.

89(6) The amount the owner may apply towithdraw under section 88 is the amountby which “E” exceeds “F: where,

“E” is 50 per cent of the Year’s MaximumPensionable Earnings (YMPE) for the year inwhich the application is signed; and

“F” is 75 per cent of the owner’s expectedtotal income from all sources before taxesfor the 12-month period following the dateof signing the application.

6. This application was signed in the year2001, for which the Canada Pension Plan’sYMPE was $38,300. 50 per cent of the YMPEis $19,150. In the application dated August,2001, the Applicant stated that his expectedtotal income from all sources before taxesfor the 12 months following the date of theapplication was $30,000. 75 per cent of thisamount is $22,500. Following 89(6), theamount that the Applicant can thereforeapply to withdraw is $19,150 – $22,500,which is a negative amount.

7. In the Applicant’s Request for Hearing, theApplicant expressed a desire to pay off debtsand noted a recent reduction in his incometo $23,000. There is no discretionary in theAct or Regulation for the approval of awithdrawal which does not meet the pre-scribed requirements. A reduction in expect-ed income to $23,000 would allow for somewithdrawal of locked-in funds under the

terms of the Act (though not the fullamount previously requested). TheApplicant is not precluded from re-applyingfor a withdrawal on that basis.

ORDER

The Superintendent’s Notice of Proposal toRefuse to consent, dated November 22, 2001, isaffirmed and this application is dismissed.


Mr. Louis ErlichmanMember, Financial Services Tribunal

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated January 11, 2002,with respect to an application for withdrawalfrom a life income fund, locked-in retirementaccount, or a locked-in retirement income fund(a “locked-in account”) based on financialhardship;


REASONS:

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consentdated January 11, 2002 that denied theApplicant access to funds held in a locked-in account. the Applicant had appliedto withdraw these funds, pursuant tosubsection 67(5) of the Act, which readsas follows:

67.(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirement

savings arrangement of a type that is pre-scribed for the purposes of this subsection ifthe Superintendent is satisfied as to theexistence of such circumstances of financialhardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat the Applicant did not meet the condi-tions prescribed in Subsection 89(6) of theRegulation for a withdrawal based on lowincome.

3. The issue to be determined by the Tribunalis whether or not the Superintendentshould have consented to the application.

4. An application for withdrawal based onfinancial hardship is subject to conditionsand requirements prescribed in sections 83through 89 of the Regulation. The relevantsections for this application are:

88(2) Subject to section 89… the owner isentitled to withdraw an amount calculatedusing the formula, A–(B–C) = D, in which

“A” is the amount the owner applies towithdraw;

“B” is the market value of all assets of theowner…

“C” is the total of the liabilities of theowner…

“(B–C)” cannot be less than 0;

“D” is the amount the owner is entitled towithdraw, net of any withholding tax andfee.

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89(6) The amount the owner may apply towithdraw under section 88 is the amountby which “E” exceeds “F: where,

“E” is 50 per cent of the Year’s MaximumPensionable Earnings (YMPE) for the year inwhich the application is signed; and

“F” is 75 per cent of the owner’s expectedtotal income from all sources before taxesfor the 12-month period following the dateof signing the application.

5. This application was signed in the year 2001,for which the Canada Pension Plan’s YMPEwas $38,300. 50 per cent of the YMPE is$19,150. In the application dated November1, 2001, the Applicant stated that his ex-pected total income from all sources beforetaxes for the 12 months following the dateof the application was $55,000. 75 per centof this amount is $41,250. Following 89(6),the amount that the Applicant can there-fore apply to withdraw is $19,150 –$41,250, which is a negative amount.

6. In the Applicant’s Request for Hearing, theApplicant referred to a large debt load creat-ing a difficult financial situation. There is,however, no discretionary in the Act orRegulation for the approval of a withdrawalwhich does not meet the prescribedrequirements.

ORDER

The Superintendent’s Notice of Proposal toRefuse to consent, dated January 11, 2002, isaffirmed and this application is dismissed.


Mr. Louis Erlichman,Member, Financial Services Tribunal

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “PBA”);

AND IN THE MATTER OF the Consent ofthe Superintendent of Financial Services (the“Superintendent”), pursuant to the PBA, to thetransfer of assets from the Amended PensionPlan for Salaried Employees of National SteelCar Limited, Registration No. 0215020, to theAmended Pension Plan for the Hourly-PaidEmployees of National Steel Car Limited,Registration No. 0215038;

AND IN THE MATTER OF a Hearing inaccordance with subsection 89(8);

BETWEEN:

T. STEWART BAXTER, GARY HOTRUM,GEORGE WILBUR and JUNE WILLIAMS,Representatives of Certain Members andFormer Members of the AmendedPension Plan for Salaried Employees ofNational Steel Car Limited

Applicants

– and –

SUPERINTENDENT OF FINANCIALSERVICES

Respondent

– and –

NATIONAL STEEL CAR LIMITED

Respondent

– and –

MAURICE ROZON, CHRIS WINTERBURNand AL REICHERT of the UNITED STEEL-WORKERS OF AMERICA, LOCAL 7135(the “USWA”) on their own behalf andon behalf of the USWA Members of theAmended Pension Plan for Hourly-PaidEmployees of National Steel Car Limited

Respondents

BEFORE:

Mr. Colin H.H. McNairn,Vice Chair of the Tribunal and Chair of the Panel

Mr. William Forbes,Member of the Tribunal and of the Panel

Mr. C.S. Moore,Member of the Tribunal and of the Panel

APPEARANCES:

For the Applicants, Stewart Baxter,Gary Hortum, George Wilbur andJune Williams

Mr. Warren S. Rapoport

For the Respondent Superintendent

Ms. Deborah McPhail

For the Respondent National Steel CarLimited

Mr. Andrew K. Lokan

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PLAN: Amended Pension Plan for the Hourly-Paid Employees of National Steel Car Limited, Registration Number 0215038



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For the Respondents, Maurice Rozon,Chris Winterburn and Al Reichert

Ms. Dona Campbell

HEARING DATES:

January 15–17, 2002

MAJORITY REASONS FOR DECISION

Background

National Steel Car Limited (“NSC”) applied onFebruary 2, 2000, for the consent of theSuperintendent to the transfer of assets in theamount of $45,188,000 from the AmendedPension Plan for Salaried Employees of NationalSteel Car Limited (the “Salaried Plan” or the“Plan”) to the Amended Pension Plan for theHourly-Paid Employees of National Steel CarLimited (the “Hourly Plan”) to be effectiveMarch 1, 1999. The actuarial reports filed insupport of the transfer application indicatedthat, as at March 1, 1999, the Salaried Plan hada surplus of $23,681,800 and the Hourly Planhad an unfunded liability of $3,088,000. Thosereports also indicated that immediately afterthe transfer, the merged plan would have a sur-plus of $20,593,800 on a going concern basisand no solvency deficiency.

On March 2, 2001, after receiving submissionsfrom the Applicants, NSC and the USWA, theSuperintendent gave consent to the transfer ofassets, as requested in NSC’s application, pur-suant to section 81 of the PBA. The Applicants,who are members of the Salaried Plan, filed arequest for a hearing by the Tribunal in respectto that consent in apparent reliance on section89 of the PBA. Applications were then filed byNSC and by certain USWA members of theHourly Plan for party status in the hearingbefore the Tribunal. Those two applicationswere duly granted.

The Hourly and Salaried Plans were originally

established, effective June 30, 1952, as a singleplan. In 1966, NSC divided the original plan,effective July 1, 1965, into separate Salaried andHourly Plans. The 1966 version of the SalariedPlan reserved to NSC the right, in its discretion,to amend, merge or terminate the Plan (section18.1), subject to the following qualification;

The Company shall have no power to makeany change in or amendment to the Planwhich would cause or permit any portion ofthe contributions made prior to that date tobe diverted to purposes other than the exclu-sive benefit of the Members of the Plan …(section 18.3).

This version of the Plan also provided thatshould the Plan be terminated, all contribu-tions to the Plan would vest absolutely in themembers (section 18.4).

The Plan was, in fact, amended in 1973, effec-tive January 1, 1972, to substitute the followingprovision for the provision recited above;

No amendment or suspension of this Planshall operate to reduce the benefits whichhave accrued to the Members of the Plan inrespect of service prior to the date of suchamendment or suspension as the case maybe, nor shall the Company have the power tomake any amendment to the Plan whichwould cause or permit any portion of thecontributions made prior to such date to bediverted to purposes other than the exclusivebenefit of Members of the Plan, Pensioners,their estates, designated beneficiaries or jointannuitants until all liabilities of the Planhave been fully met. … (new section 18.3).

The 1973 amendment also replaced the provi-sion dealing with the vesting of contributionson Plan termination with a provision to theeffect that any surplus on termination of thePlan should revert to NSC (new section 18.5).

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At the hearing in this matter, the Tribunal heardarguments on two main issues that were identi-fied in advance by the parties. We address thoseissues in the next two parts of these Reasons.

Issue No. 1

Does the Tribunal have jurisdictionunder the PBA to hear this matter?

Unlike a superior court, this Tribunal has noinherent jurisdiction. It is simply a creature ofstatute (namely, the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997,c. 28 (the “FSCO Act”), see esp. section 6) andderives its authority from statute, namely theFSCO Act and statutes such as the PBA thatgovern particular financial service sectors. Thescope of that authority is to be determinedfrom the express provisions of any relevantstatute or by necessary implication from such astatute (as to the authority of statutory agenciesgenerally, see Macaulay and Sprague, Practiceand Procedure before Administrative Tribunals,looseleaf, vol. 3, c. 29). In the present case, thismeans that we have to look to the PBA in orderto decide whether the Tribunal is entitled toentertain a request for a hearing from theApplicants in relation to the Superintendent’sconsent to the transfer of assets from theSalaried Plan to the Hourly Plan. While wesometimes refer, in these Reasons, to the rightto a hearing before the Tribunal, that is reallythe obverse side of the jurisdiction coin.Consequently, whether we speak of the jurisdic-tion of the Tribunal to entertain a request for ahearing or the right of a person to a hearingbefore the Tribunal, the PBA must confer thatjurisdiction or that right, either expressly or bynecessary implication.

Section 89 (formerly section 90) of the PBA isthe source of the Tribunal’s jurisdiction to holdhearings in relation to decisions – or, more

precisely, proposed decisions – of the Super-intendent under the PBA. The fact that thedetermination of the Superintendent in thiscase was framed as an actual consent to thetransfer of assets rather than a proposal to con-sent should not, however, be taken to excludethe possibility of a right to a hearing; it is thenature rather than the form of the determina-tion that should be controlling. Nor shouldthere be an automatic right to a hearing in thiscase simply because the Superintendent’s con-sent letter advised recipients – such as theApplicants – that they had a right to request ahearing before the Tribunal. The Superinten-dent cannot confer jurisdiction on this Tribunalto entertain a request for a hearing; the Tribunalmust have that jurisdiction under the PBA.

Various subsections of section 89 deal with pro-posed decisions of the Superintendent that willtake the form of plan registrations, orders,approvals and consents, sometimes but notalways referring to the specific provisions of thePBA that contemplate those decisions. There issome jurisprudence, from the OntarioDivisional Court and the Pension Commissionof Ontario (the “PCO”), on the extent of theauthority to hold a hearing that section 89 for-merly conferred on the PCO and now conferson this Tribunal. The arguments before theTribunal in the present case centred around thequestion of whether that jurisprudence applieshere notwithstanding the difference in theprecise subsection of section 89 primarily inquestion and the subsequent amendments tosection 89 that were effected by the FSCO Act.

In this case, we are concerned primarily withsubsection (4), as read with subsections (6) and(8), of section 89. To provide the context, how-ever, we set out the first nine subsections ofsection 89, underlining the changes introducedby the FSCO Act:

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89.-(1) Where the Superintendent proposesto refuse to register a pension plan or anamendment to a pension plan or to revoke aregistration, the Superintendent shall servenotice of the proposal, together with writtenreasons therefor, on the applicant oradministrator of the plan.

(2) Where the Superintendent proposes tomake or to refuse to make an order inrelation to,

(a) subsection 42(9) (repayment of moneytransferred out of a pension fund);

(b) subsection 43(5) (repayment of moneypaid to purchase pension, deferredpension or ancillary benefit);

(c) subsection 80(6) (return of assetstransferred to new pension fund);

(d) subsection 81(6) (return of assetstransferred to new pension fund);

(d.1)section 83 (the Guarantee Fund appliesto a pension plan);

(e) section 87 (administration of pensionplan in contravention of Act orregulations); or

(f) section 88 (preparation of report),

the Superintendent shall serve notice of theproposal, together with written reasonstherefor, on the administrator and any otherperson to whom the Superintendentproposes to direct the order.

(3) Where the Superintendent proposes tomake or to refuse to make an order requiringan administrator to accept an employee as amember of a class of employees for whom apension plan is established or maintained,the Superintendent shall serve notice of theproposal, together with written reasonstherefor, on the administrator, and theSuperintendent shall serve or require the

administrator to serve a copy of the noticeand the written reasons on the employee.

(3.1) Where an application is filed in accor-dance with subsection 78(2) for the paymentof surplus to the employer and theSuperintendent proposes to consent or refuseto consent under subsection 78(1), theSuperintendent shall serve notice of the pro-posal, together with written reasonstherefor, on the applicant and on any personwho made written representations to theSuperintendent in accordance withsubsection 78(3).

(3.2) Where an application is filed in accor-dance with subsection 78(4) and theSuperintendent proposes to consent or refuseto consent under subsection 78(4), theSuperintendent shall serve notice of the pro-posal, together with written reasons therefor,on the applicant and the Superintendentmay require the applicant to transmit a copyof the notice and the written reasons onsuch other persons or classes of persons orboth as the Superintendent specifies in thenotice to the applicant.

(4) When the Superintendent proposes torefuse to give an approval or consent or pro-poses to attach terms and conditions to anapproval or consent under this Act or theregulations, other than a consent referred toin subsection (3.1) or (3.2), the Super-intendent shall serve notice of the proposal,together with written reasons therefor, onthe applicant for the approval or consent.

(5) Where the Superintendent proposes tomake an order requiring the wind up of apension plan or declaring a pension planwound up, the Superintendent shall servenotice of the proposal, together with writtenreasons therefor, on the administrator and

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the employer, and the Superintendent mayrequire the administrator to transmit a copyof the notice and the written reasons onsuch other persons or classes of persons orboth as the Superintendent specifies in thenotice to the administrator.

(6) A notice under subsection (1), (2), (3),(3.1), (3.2), (4) or (5) shall state that the per-son on whom the notice is served is entitledto a hearing by the Tribunal if the persondelivers to the Tribunal within thirty daysafter the notice under that subsection, noticein writing requiring a hearing, and the per-son may so require such a hearing.

(7) Where the person on whom the notice isserved does not require a hearing in accor-dance with subsection (6), the Superinten-dent may carry out the proposal stated in thenotice.

(8) Where the person requires a hearing bythe Tribunal in accordance with subsection(6), the Tribunal shall appoint a time for andhold a hearing.

(9) At or after the hearing, the Tribunal byorder may direct the Superintendent to carryout or to refrain from carrying out the pro-posal and to take such action as the Tribunalconsiders the Superintendent ought to takein accordance with this Act and the regula-tions, and for such purposes, the Tribunalmay substitute its opinion for that of theSuperintendent.

Before the FSCO Act came into effect in 1998,the references to the Tribunal in section 89 ofthe PBA were references to the PCO and “theSuperintendent” meant the Superintendent ofPensions rather than the Superintendent ofFinancial Services.

In C.U.P.E. v. Ontario Hospital Association (1990),PCO Bulletin 1/4 (PCO), and (1992), 91 D.L.R.

(4th) 436 (Ont. Div. Ct.) (the “OntarioHospitals” case), the “key issue,” as described bythe PCO (Bulletin 1/4, at p. 5), was whether thephrase “proposes to make an order” in subsec-tion (2) of section 89 (then section 90) could beread so as to include “proposes to refuse tomake an order.” The PCO said that it could andthe Divisional Court agreed, noting that “thereis ample authority to support the propositionthat a dismissal of an application [for an order]can constitute an order” (91 D.L.R. (4th) 435, atp. 441). At the time of this decision, subsection(2) was limited to situations where there is aproposal to make an order. It was subsequentlyamended by the FSCO Act so that it alsoapplies to situations where there is a proposalto refuse to make an order. That amendmenteffectively confirms the result in the OntarioHospitals case and eliminates the need for find-ing a necessary implication that the subsectioncovers a proposal to refuse to make an ordersince the subsection now extends to thatsituation explicitly.

Subsection (4) of section 89 does not lend itselfto the same sort of implication that was drawnfrom subsection (2) of that section in theOntario Hospitals case. The phrase “proposes torefuse to give … consent” cannot be read so asto include “proposes to give consent” withoutstretching the language beyond reason.Moreover, it cannot be said, adapting the wordsof the Divisional Court in the Ontario Hospitalscase to the circumstances of this case, thatthere is ample authority for the propositionthat giving consent can constitute refusing togive consent. It was suggested in argument thatrefusing to give consent includes “refusing torefuse” consent and, therefore, covers thegranting of consent. But this unduly strainslanguage and logic. Counsel for the Super-intendent argued that the Superintendent’s

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action in this case was tantamount to a refusalsince the giving of consent to the transfer ofassets could be construed as an implicit refusalto order the return of assets transferred in viola-tion of subsection (4) of section 81 of the PBA.However, there was no evidence that the assetshad actually been transferred at any time beforethe hearing in this matter and, if they had beentransferred after the Superintendent gaveunconditional consent, the Superintendentwould have had no jurisdiction to order thereturn of those assets. An order to return assetscan only be made where those assets have beentransferred without consent or in breach of aprescribed term or condition of a consent totransfer (see subsection (6) of section 81).

We, therefore, conclude that subsection (4) ofsection 89 is limited to proposals to refuse togive approvals or consents, or to impose termsand conditions on an approval or consent, anddoes not admit of an implication that it alsocovers proposals to give approvals or consents.This interpretation is reinforced by the fact thatthe subsection says that the relevant notice ofproposal is to be served on the applicant forapproval or consent, while subsection (6) indi-cates that the person who is entitled to ahearing is the person on whom the notice isserved. The Applicants in the present case,therefore, do not qualify, under subsection (6),as persons who are entitled to a hearing beforethe Tribunal since they did not apply to theSuperintendent for any consent or approval.

In opting for a broad interpretation of thePCO’s jurisdiction to hold hearings in theOntario Hospitals case, the Divisional Courtnoted the PCO’s “watchdog” role under thePBA and the subordinate role of theSuperintendent of Pensions, who was obligedto follow the directions of the PCO as well asthe terms of the PBA. The relationship between

this Tribunal and the Superintendent ofFinancial Services is quite different. TheTribunal does not have general responsibilityfor the administration of the PBA and its onlyauthority over the Superintendent is to makeorders against that official, under subsection (9)of section 89, directing that certain action betaken or not taken, in relation to any of thevarious kinds of proposals referred to elsewherein section 89. Such orders can only be made byway of remedy at or after a hearing in a matterthat is brought before the Tribunal through arequest for hearing made under the PBA.Therefore, the consideration which supported abroad interpretation by the Divisional Court ofthe PCO’s jurisdiction to hold hearings that wasin question in the Ontario Hospitals case is notat play in relation to the comparable jurisdic-tion of this Tribunal.

One of the factors that influenced the PCO andthe Divisional Court in their decisions in theOntario Hospitals case was the inequity of aninterpretation of section 89 that would give alosing party on one side of a contested matterbefore the Superintendent the right to a formalhearing under the PBA but no similar right to alosing party on the other side (the latter partybeing remitted to the more limited scope ofjudicial review through an application tocourt). The PCO said that it would take veryclear language in the PBA to lead to the conclu-sion that inequitable treatment of this sort wasenvisaged by the PBA. We think that the lan-guage of subsection (4) of section 89 is abun-dantly clear and forecloses the possibility ofany implication that it extends to proposals bythe Superintendent to give consent. In deter-mining the scope of the jurisdiction of thisTribunal to hold hearings, we are not entitledto read something into the PBA that cannot besupported by a necessary implication from the

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language the Legislature has chosen to use.If the result is one-sided, we must respect theunambiguous decision of the Legislature toembrace that lack of symmetry.

The decision in the Ontario Hospitals case wasfollowed by the PCO in three other cases wherethat tribunal assumed jurisdiction to hold ahearing. Those cases were like the OntarioHospitals case in that the PCO concluded that aprovision of section 89 of the PBA providing fora hearing where there is proposal to make a cer-tain kind of decision could be taken to relate,as well, to a proposal to refuse to make such adecision (see Maynard v. Ontario (Superintendentof Pensions) and McDonnell Douglas Canada Ltd.,a decision of the PCO dated May 25, 1998, PCOIndex No. XDEC-38 (affirmed by the DivisionalCourt at [2000] O.J. No. 881), C.U.P.E. v. Ontario(Superintendent of Pensions) and Sisters ofSt. Joseph, a decision of the PCO dated May 29,1998, PCO Index No. XDEC-39, and TheEntitlement 55 Group v. Ontario (Superintendent ofPensions) and Imperial Oil Limited, a decision ofthe PCO dated April 28, 1995, PCO Bulletin 6/2(Summer 1995)). Therefore, like the OntarioHospitals case, these cases are readily distin-guishable since we are concerned, in the pre-sent case, with the interpretation of a provisionof section 89 that confers jurisdiction to hold ahearing where there is a proposal to refuse tomake a certain kind of decision.

The amendments to section 89 of the PBAeffected by the FSCO Act in 1997 also militateagainst the conclusion that subsection (4) ofsection 89 implicitly covers a proposal to giveconsent. Through these amendments, theLegislature expressly extended the situations inwhich there is a right to a hearing under sec-tion 89 so that the right now applies in respectof proposals;

• to refuse to make, as well as to make, ordersunder specified sections of the PBA(subsection (2)),

• to consent or refuse to consent to thepayment of surplus in a pension plan to theemployer (new subsection (3.1)),

• to consent or refuse to consent to the returnor reimbursement of certain amountsto the employer from a pension plan (newsubsection (3.2)).

In other words, if any of these kinds of deci-sions were to be proposed, the right to a hear-ing would apply whether the proposal of theSuperintendent was favourable or unfavourableto the person who brought the matter beforethe Superintendent. At the same time, subsec-tion (4) of section 89 was left to apply, by itsexpress terms, only to proposals to refuse togive an approval or consent, or to attach termsand conditions to an approval or consent,although the exceptions from the operation ofthe subsection were supplemented by the inser-tion of cross-references to the new subsections(3.1) and (3.2) of section 89. All of this suggeststhat subsection (4) was deliberately left toextend only to decisions of the Superintendentgoing one way, namely against the personmaking the request to the Superintendent.In these circumstances, we would be reluctantto conclude that the subsection extends,by implication, to decisions in favour of theperson making the request.

Although we have concluded, for a number ofreasons, that we do not have jurisdiction toentertain the Applicants’ request for a hearingin this matter, we proceed, nonetheless, to con-sider the merits of the Applicants’ case in theevent that we are wrong in our conclusion as tojurisdiction.

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Issue No. 2

If the Tribunal has jurisdiction, shouldthe Superintendent’s consent to the assettransfer under section 81 of the PBA beset aside or varied?

Section 81 of the PBA provides as follows;

81.-(1) Where a pension plan is establishedby an employer to be a successor to an exist-ing pension plan and the employer ceases tomake contributions to the original plan, theoriginal pension plan shall be deemed not tobe wound up and the new pension plan shallbe deemed to be a continuation of theoriginal pension plan.

(2) the benefits under the original pensionplan in respect of employment before theestablishment of the new pension plan shallbe deemed to be benefits under the newpension plan.

(3) Subsection (2) applies whether or not theassets and liabilities of the original pensionplan are consolidated with those of the newpension plan.

(4) No transfer of assets shall be made fromthe pension fund of the original pensionplan to the pension fund of the new pensionplan without the prior consent of theSuperintendent or contrary to the prescribedterms and conditions.

(5) The Superintendent shall refuse toconsent to a transfer that does not protectthe pension benefits and any other benefitsof the members and former members ofthe original pension plan or that does notmeet the prescribed requirements andqualifications.

(6) The Superintendent by order may requirethe transferee to return to the pensionfund assets, with interest calculated in the

prescribed manner, transferred without theprior consent of the Superintendent ortransferred contrary to a prescribed term orcondition.

(7) Subject to section 89 (hearing andappeal), an order for return of assets undersubsection (6), exclusive of the reasonstherefor, may be filed in the Ontario Court(General Division) and is thereuponenforceable as an order of that court.

(8) No transfer of assets shall be made fromone pension fund to another pension fundin circumstances where subsections (1) to (7)do not apply or where section 42 or 80 doesnot apply, without the prior written consentof the Superintendent or contrary to theprescribed terms and conditions and for thepurpose, subsections (5) to (7) apply withnecessary modifications.

The Superintendent concluded in the presentcase that there were no grounds, under subsec-tion (5) of section 81 of the PBA, for refusingNSC’s request for consent to the transfer ofassets from the Salaried Plan to the HourlyPlan. Since no requirements and qualificationsin respect of such a transfer have been pre-scribed by regulation, the only circumstancethat would require the Superintendent to refuseconsent, under subsection (5) of section 81, is ifthe proposed transfer of assets failed to “protectthe pension benefits and any other benefits ofthe members and former members” (collective-ly the “members”) of the Salaried Plan. TheApplicants did not suggest that the “pensionbenefits” of those members were not protectedas the assets in the merged plan were morethan sufficient to satisfy the pension benefits(as defined in section 1 of the PBA) of themembers of the Salaried Plan. In fact, theactuarial report filed by NSC with the

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Superintendent, in support of its request forconsent to the transfer of assets, indicated thatthe merged plan would have a surplus of$20,593,800 on a going concern basis. TheApplicants maintained, however, that the trans-fer of assets in this case did not protect “otherbenefits” of the members of the Salaried Plan.

The Applicants maintained that the 1966 ver-sion of the Salaried Plan had the effect of estab-lishing a trust in respect of the Plan assets, orpension fund, for the benefit of the members ofthe Plan. We will assume for the purposes ofour analysis, but without deciding, that therewas such a trust and that the 1973 amendmentto the Plan did not effectively revoke it.Assuming the continued existence of a trust,the members of the Plan might be said to haveenjoyed benefits in the form of beneficialinterests in the trust to which the Plan assetswere subject.

The “other benefits” of the members of theSalaried Plan that the Applicants say wereunprotected in the transfer of assets, andaccompanying plan merger, are really interestsin the excess of,

(i) the contributions to the Plan, takentogether with

(ii) the income generated by those contribu-tions, over and above

(iii) what would be required to satisfy pensionbenefits under the Plan

– in other words, interests in the nature ofclaims to surplus. However, no member of theSalaried Plan can be said to have anythingmore than a contingent claim to surplus sincean actual claim to surplus pre-supposes awind up or termination of the Plan; see Schmidtv. Air Products of Canada (1994), 115 D.L.R.(4th) 631 (S.C.C.). The PBA says specificallythat on a merger of pension plans under

section 81, the merging plan is deemed notto be wound up and the merged plan is deemedto be a continuation of the merging plan (seesubsection (1)).

The Supreme Court of Canada in Schmidt refersto the potential claim of plan members to thesurplus remaining upon termination of a pen-sion plan – by virtue of the terms of the plan orany trust in respect of the pension fund – as a“benefit” to which members may be entitled (atp. 665). However, the court also makes it clearthat the amount of that benefit is never certainduring the continuation of the plan and thatthe right to any surplus is crystallized onlywhen the surplus becomes ascertainable on ter-mination of the plan (at p. 665). In our view, amember’s interest in surplus, which is contin-gent upon termination of the plan and theexistence of an actual surplus at that time, doesnot fall within the expression “other benefits ofmembers” in subsection (5) of section 81 of thePBA. While the plan continues, the plan spon-sor has the benefit of the surplus in the sensethat it can use it to justify contribution holi-days (see Schmidt, at pp. 656-657). That benefitpertains even if the pension fund is subject to atrust in favour of the members. Thus, it wouldbe inaccurate to say that the interest of themembers in the surplus of an ongoing plan is abenefit of the members, in the sense of subsec-tion (5) of section 81 of the PBA, given that theplan sponsor has the current benefit of thatsurplus, albeit for the limited purpose of takingcontribution holidays.

There is nothing inherently objectionableabout a merger of a pension plan that is in asurplus position with one that is not, even ifthe assets of the former plan are subject to atrust for the benefit of the members; see ReHeilig and Dominion Securities Pitfield Ltd. (1989),67 O.R. (2d) 577, at p. 582 (Ont. C.A.). We were

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referred to the decision of the Divisional Courtin Retirement Income Plan for Salaried Employeesof Weavvex Corp. v. Ontario (Superintendent ofPensions) (2000), 133 O.A.C. 375, as authorityfor the proposition that on a transfer of assetsthe Superintendent is required, under subsec-tion (5) of section 81 of the PBA, to protect anotional claim to surplus. However, the court’sdecision to set aside a consent of the Super-intendent given under that subsection wasbased entirely on deficiencies in the processthrough which the Superintendent dealt withthe application for consent to the transfer ofassets and with objections to it. That is how theCourt of Appeal, in an unreported decisiondated February 14, 2002 (docket C35896 &C35919), characterized the decision in affirm-ing it on appeal (with a modification to theform of remedy afforded by the DivisionalCourt). In the present case, the Applicants didnot allege that there were any deficiencies inthe procedure the Superintendent followed indealing with NSC’s application for consent.

The Applicants relied on Buschau v. RogersCableSystems Inc. (2001), 148 B.C.A.C. 263, a decisionof the British Columbia Court of Appeal thatmay appear, at first blush, to be at odds withthe decision of the Ontario Court of Appeal inHeilig. In fact, Buschau simply required anaccounting for the benefit of the members of apension plan (the “merging plan”) that hadbeen merged with certain other plans, in orderto determine the proportion of the combinedassets of the merged plan that were attributableto those members. The assets of the mergingplan were subject to a trust in favour of themembers and membership in the plan hadbeen closed sometime prior to the merger. Theapparent objective of the members of the merg-ing plan, in requesting an accounting, was topreserve the integrity of the trust such that the

members would remain entitled to share in thesurplus on termination of the trust and be in aposition to bring about the termination of thetrust and distribution of the trust assets inaccordance with the rule in Saunders v. Vautier(1814), E.R. 282 (aff’d (1841), 41 E.R. 482).There was no question of the appropriatenessof any transfer of assets in connection with theplan merger, which apparently did not requireany regulatory approval under the pensionlegislation to which the merging plan wassubject, namely the Pension Benefit Standards Act,1985, S.C. 1986, c. 40. Buschau is not, therefore,the same kind of case as the present one.

The Superintendent has adopted Policy A700-251 (the “Policy”), being an administrativepolicy with respect to the giving of consent toa transfer of assets under section 81 of the PBA.The Policy anticipates (in section 11) that if theassets of the plan to which the transfer is to bemade would be less than the liabilities of thatplan (and certain other conditions pertain), theSuperintendent may decide that member bene-fits of a kind referred to in subsection (5) of sec-tion 81 of the PBA would not be protected onthe proposed transfer. Assuming there weremember benefits of that kind here, that is notthe situation we have to consider since themerged plan, following the transfer, wouldhave a surplus of $20,593,800. The Policy doesnot say that if there is a surplus, the proposedtransfer ought to be approved. Therefore, thePolicy is not helpful in this case.

Disposition

It follows that the decision of the Super-intendent granting consent to the transfer ofassets from the Salaried Plan to the Hourly Planshould stand. In the event that the Tribunal hasthe jurisdiction to entertain the Applicants’request for a hearing in this matter, we confirmthe Superintendent’s consent.

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DATED at Toronto, Ontario this 31st day ofMay, 2002.

Colin H.H. McNairn Chair of the Panel

William ForbesMember of the Panel

MINORITY REASONS FOR DECISION

Background

As background for these minority reasons, Iagree with and adopt the Background section ofthe Majority Reasons for Decision. The twomain issues identified in advance by the partieswere expressed as follows:

1. Does the Tribunal have jurisdiction underthe PBA to hear this matter?

2. If the Tribunal has jurisdiction, should theSuperintendent’s consent to the assettransfer under section 81 of the PBA be setaside or varied?

At the request of NSC, and with the approval ofall parties, the Panel agreed to deal with bothissues at the same hearing, with the result thatwe were able to decide Issue No. 2 without firstdetermining that we had jurisdiction under thePBA to hear that matter.

Issue No. 2

If the Tribunal has jurisdiction, shouldthe Superintendent’s consent to the assettransfer under section 81 of the PBA, beset aside or varied?

I concur with my fellow Panel members regard-ing the decision reached on Issue No. 2; that is,that the Superintendent’s consent to the assettransfer at issue in this hearing should stand.I also agree with the reasons expressed in thatsection of the Majority Reasons for Decisionregarding Issue No. 2.

Issue No. 1

Does the Tribunal have jurisdictionunder the PBA to hear this matter?

I do not agree with the decision reached by themajority of the Panel, that the Tribunal doesnot have jurisdiction to hear this matter, nordo I agree fully with the section of the MajorityReasons for Decision regarding Issue No. 1.My view is that the Tribunal should have juris-diction, and my reasons follow.

I agree with the arguments presented by theSuperintendent, and supported by theApplicants and the USWA Respondents, thatthe Tribunal has an implied jurisdiction to con-duct a hearing of this matter under section 89of the PBA. In making these arguments, theSuperintendent relied on the authority ofHospitals of Ontario Pension Plan, No. C-001500,November 22, 1990, PCO Index No. XDEC-05,PCO Bulletin 1/4 (December 1990), affirmed atC.U.P.E. v. Ontario Hospital Association (1992),91 D.L.R. (4th) 436 (Ont. Div. Ct.), and deci-sions that have followed it, namely Imperial OilLimited Plan and the Entitlement 55 Group,PN 0347054 and PN 0344002, April 28, 1995,PCO Index No. XDEC-28, Pension Plan forSalaried Employees of McDonnell Douglas CanadaLtd., No. 520593, May 25, 1998, PCO IndexNo. XDEC-38, Maynard v. Ontario (Superintendentof Pensions), [2000] O.J. No. 881 (Div. Ct.), andPension Plan for Hospital Employees of the Sistersof St. Joseph for the Diocese of Toronto in UpperCanada, PN 302851, May 29, 1998, PCO IndexNo. XDEC-39.

In my view, these decisions are relevant for thepresent hearing, as they highlight the impor-tance of interpreting the PBA, wherever possi-ble, to give equitable treatment of hearingrights to both sides in a pension dispute. In theHospitals of Ontario (CUPE) case, the PCO and

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Divisional Court both held that there was aright to a hearing under the PBA where theSuperintendent had refused to make an order,even though the PBA only expressly provided aright to a hearing where the Superintendenthad proposed to make an order.

The PCO’s reasons included the following state-ments regarding the PBA (referred to as the Act):

... the legislature would have intended fairplay for both sides and, where possible, theAct should be construed to provide fair andequitable treatment for all concerned. Itwould take very clear language indeed to per-suade the Commission that inequitabletreatment of the sort envisaged by the OHAand the Superintendent was intended.

... the Act is remedial in nature with one ofits basic objectives to protect and enhancethe rights of plan members.

The Divisional Court, in affirming this decisionon appeal, stated:

It is not reasonable, in our opinion, to thinkthat a decision to refuse to issue an orderrequested under s. 88 [now s. 87] should betreated any differently, for the purpose ofs. 90(6) [now s. 89(6)], than one to make suchan order. In the first case, those interestedand in disagreement with the decision wouldhave to live with it, while in the second,they would have access to the Commissionby way of an appeal and the power it pos-sesses under s. 90(9) [now s. 89(9)].

In the present case, we are dealing with theSuperintendent’s consent regarding an assettransfer under section 81 of the PBA. Thisconsent was given in a letter dated March 2,2001, from David Gordon by delegatedauthority from the Superintendent, sent torepresentatives of NSC, the USWA and theApplicants. This letter included a statement

that “the recipients of this letter may request ahearing before the Financial Services Tribunalwith respect to the approval of the asset trans-fer.” As a result, the Superintendent’s consentmay alternatively be viewed as a proposed con-sent to the transfer, subject to the holding of ahearing before the Tribunal if requested. Theletter also included the following paragraph:

I am transmitting copies of this letter to allindividuals who made submissions concern-ing this application in order to ensure thatthey are informed of my decision. Therecipients of this letter may request a hearingbefore the Financial Services Tribunal withrespect to the approval of the asset transfer.The Financial Services Tribunal is an inde-pendent adjudicative body that reviewsdecisions made by the Superintendent ofFinancial Services.

NSC had received the consent they hadrequested, or at least had received a proposedconsent, and so had no reason to request ahearing before the Tribunal. However, theSuperintendent had not consented, or proposedto consent, to the request of the Applicants –that the Superintendent deny or attach condi-tions to the transfer of assets – with the resultthat the Applicants had reason to request ahearing before the Tribunal, and did so. As aparty to NSC’s request for consent to a transferof assets, the Applicants had made submissionsto the Superintendent, who refused to consentto the Applicants’ request, and gave them noticeof the Superintendent’s proposed action on thismatter, in accordance with subsection 89(4).The Superintendent’s letter also included aninvitation for any recipients of the letter torequest a hearing, in accordance with subsection89(6), which includes the following direction:

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A notice under subsection ...(4)...shall statethat the person on whom the notice isserved is entitled to a hearing by theTribunal...

In my view, the Superintendent acted correctlyin informing the Applicants and other partiesof their right to a hearing in these circum-stances, by interpreting subsection 89(4) in thismanner. This view provided equitable treat-ment to the Applicants, for whom the Super-intendent’s consent or proposed consent wasreally a refusal to consent to the Applicants’requests. Had the Superintendent refused toconsent to NSC’s application for transfer ofassets, NSC would have had an express right toa hearing under subsection 89(4).

In this case, the Applicants were heard by theTribunal, even though a majority of the Panellater found that the Tribunal did not have juris-diction. If this hearing had not been held, theApplicants could still have applied for a judicialreview. In that case, the judicial review wouldhave proceeded without the Tribunal’s views, asno determination would have been made bythe Tribunal. In addition, a judicial reviewcould involve quite different costs and timeconstraints, and more limited grounds for over-turning the Superintendent’s decision, com-pared with a hearing before the Tribunal.

Subsection 89(4) of the PBA can be interpretedin a reasonable way that will avoid thisinequitable treatment of parties. NSC arguedthat to do so would stretch the PBA languagebeyond reason, and the majority of the Panelagrees. I disagree. The Superintendent’s consentto one party’s request can reasonably be inter-preted as a refusal to consent to an opposingparty’s request, as discussed earlier in myreasons.

When the PBA was amended in 1997 under theFSCO Act, section 89 was amended to extendthe situations providing for a right to a hearingbefore the Tribunal, reflecting the prevailingview that a right to a hearing should be givenwhether the Superintendent’s proposal or deci-sion was favourable or unfavourable to theparty bringing the matter to the Superinten-dent. These amendments reflected recent juris-prudence in this area, and also an increasedfocus on certain decisions now made in the firstinstance by the Superintendent (and formerlyfirst instance decisions of the PCO tribunal).I have no reason to believe that similar amend-ments to subsection 89(4) were intentionallyomitted, as was suggested in NSC’s argument,or that such an amendment is necessaryin order to give that subsection the broaderinterpretation.

For these reasons, I would conclude that theTribunal does have jurisdiction to entertain theApplicants’ request for a hearing in this matter.

DATED at Toronto, Ontario this 31st day ofMay, 2002.

C.S. Moore,Member of the Panel

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997 S.O.1997, c. 28 (the “Act”);

AND IN THE MATTER OF a refusal by theSuperintendent of Financial Services (“theSuperintendent”) to make an order in responseto a complaint regarding the Brewers RetailPension Plan for Bargaining Employees,Registration Number 0336081 (the “Plan”);

AND IN THE MATTER OF a Hearing inaccordance with subsection 89(8) of the Act;

BETWEEN:

UNITED FOOD AND COMMERCIALWORKERS UNION,

Local 375W, represented by MR. PATRICK J. MOORE

Applicant

– and –

SUPERINTENDENT OF FINANCIALSERVICES, BREWERS RETAIL INC., andUNITED FOOD AND COMMERCIALWORKERS INTERNATIONAL UNION/

UNITED BREWERS’ WAREHOUSINGWORKERS’ PROVINCIAL BOARD

Respondents

MOTION HEARING

BEFORE:

Ms. Elizabeth Greville, Member of the Tribunal and Chair of the Panel

Ms. Heather Gavin, Member of the Tribunal

Mr. C.S. (Kit) Moore, Member of the Tribunal

APPEARANCES:

For the Applicant

Mr. Thane Woodside

For the Respondent United Food andCommercial Workers InternationalUnion/United Brewers’ WarehousingWorkers’ Provincial Board

Mr. John Evans

For the Respondent Brewers Retail Inc.

Mr. Dirk Van de Kamer

For the Superintendent of FinancialServices

Ms. Deborah McPhail

HEARING DATE:

September 28, 2001

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PLAN: Brewers Retail Pension Plan for Bargaining Employees, RegistrationNo. 0336081

DATE OF DECISION: June 3, 2002


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REASONS FOR DECISION

Nature of the Application:

The hearing request arises from a January 26,2000 decision by the Superintendent ofFinancial Services (the “Superintendent”) thatthe Superintendent had no authority or juris-diction to grant the Applicant the relief sought.

The Superintendent’s decision was in responseto a request that the Superintendent declare anexisting pension advisory committee to beimproperly constituted, and order that it bereplaced by a properly constituted advisorycommittee under the Act.

On January 26, 2000, the Superintendent wroteto counsel for the United Brewers WarehousingWorkers’ Locals 375W and 305W. The letterstated in part:

“Please note that although Section 24 of thePension Benefits Act, R.S.O. 1990 (the “Act”)gives the plan members the right to establishan advisory committee, there is no require-ment under the Act that such a committeebe established. Consequently, no groundsexist under the Act for me to order the estab-lishment of such a committee.

Section 1.36 of the plan only defines theterm Pension Advisory Committee and doesnot require that such a committee be estab-lished. Therefore, there is no basis under theplan terms for me to order the establishmentof an advisory committee.

As you pointed out in your letters, thereexists a letter of understanding, which is partof the collective agreement, wherein theemployer acknowledges that the Union has aright to appoint a Pension AdvisoryCommittee that has membership, roles, andresponsibilities similar to that attributed tothe advisory committee described in the Act.

However, the collective agreement has beennegotiated between the employer and theunion and is not a part of the pension plan.Therefore, any issue with such a documentwould be a labour issue and not within thejurisdiction of the Financial ServicesCommission of Ontario.”

On February 24, 2000, the Applicant requesteda hearing before the Financial Services Tribunalwith respect to the Superintendent’s decision ofJanuary 26, 2000.

Facts:

By Letter of Understanding dated September 1,1994 (“1994 Letter”), between Brewers RetailInc. (the “Employer”) and the United Food andCommercial Workers International Union/United Brewers’ Warehousing Workers’ Provin-cial Board (the “Union”), the Employeracknowledged the Union’s right to appoint aPension Advisory Committee with “member-ship, roles and responsibilities as defined underthe pension legislation.” The Letter ofUnderstanding also stated it was to form part ofthe Collective Agreement.

The 1994 Letter of Understanding was subse-quently renewed in July, 1997 and replaced witha Letter of Understanding with identical terms.

A further updated Letter of Understanding wassigned on March 8, 1999 (“1999 Letter”). Itstated that the Employer acknowledged theright of the Union to appoint a PensionCommittee with membership, roles and respon-sibilities as defined under Section 24 of thePension Benefits Act, and added that theEmployer would remain the Administrator forthe Plan and that the “Pension Committee”would have an advisory or consultation roleonly. Finally, the updated letter retained theprovision that the letter would form part of theCollective Agreement.

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Between December, 1998 and January, 2000there was an exchange of correspondencebetween counsel for the Applicant and theSuperintendent’s office concerning the issue ofwhether the pension committee establishedpursuant to the 1994 Letter was properly con-stituted, and the potential jurisdiction of theSuperintendent to order that the existing com-mittee was not properly constituted and that aproperly constituted committee be formed.

Pension Benefits Act

The role and contribution of an “advisory com-mittee,” which is not otherwise defined in theAct, are set out in section 24:

24 (1) The members and former membersof a pension plan by the decision of amajority of them participating in a vote,may establish an advisory committee.

(2) Each class of employees that isrepresented in the pension plan isentitled to appoint at least onerepresentative to the advisory com-mittee established under subsection (1).

(3) The former members of the planare entitled to appoint one repre-sentative to the advisory committeeestablished under subsection (1).

(4) The purposes of an advisory committeeare,

(a) to monitor the administration of thepension plan;

(b) to make recommendations to theadministrator respecting the adminis-tration of the pension plan; and

(c) to promote awareness and under-standing of the pension plan on thepart of members of the pension planand persons receiving pension bene-fits under the pension plan.

(5) The advisory committee or its represen-tative has the right to examine therecords of the administrator in respect ofthe administration of the pension planand the pension fund and to makeextracts from and copies of the records,but the subsection does not apply inrespect of information as to the service,salary, pension benefits or other personalinformation related to any specific per-son without the person’s prior consent.

(6) Subsection (1) does not apply,

(a) if the pension plan is administered bya pension committee at least one ofthe members of which is appointedby the members of the pension plan;and

(b) in respect of a multi-employer pen-sion plan established pursuant to acollective agreement.

(7) The administrator of a pension planshall provide to the advisory committeeor its representative such information asis under the control of the administratorand is required by the advisory commit-tee or its representative for the purposesof the committee.

(emphases added)

The Act defines the term “pension committee”(as opposed to the term “pension advisorycommittee”) as a committee that is the admin-istrator of the pension plan. Section 8 of thePBA sets out a list of authorized administrators,stating in part:

8 (1) A pension plan is not eligible forregistration unless it is administered byan administrator who is,

(a) a pension committee composed ofone or more representatives of,

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(i) the employer or employers, or anyperson other than the employer oremployers, required to make con-tributions under the pension plan;and

(ii) members of the pension plan;

(b)a pension committee composed ofrepresentatives of members of thepension plan.

(2) A pension committee, or a board oftrustees, that is the administrator of apension plan may include a representa-tive or representatives of persons whoare receiving pensions under the pensionplan.

Section 87 of the Act sets out the general powerof enforcement given to the Superintendent:

87 (1) The Superintendent, in the circum-stances mentioned in subsection (2) andsubject to section 89 (hearing andappeal), by a written order may requirean administrator or any other person totake or to refrain from taking any actionin respect of a pension plan or a pensionfund.

(2) The Superintendent may make an orderunder this section if the Superintendentis of the opinion, upon reasonable andprobable grounds,

(a) that the pension plan or pensionfund is not being administered inaccordance with this Act, the regula-tions or the pension plan;

(b) that the pension plan does not com-ply with this Act and the regulations;or

(c) that the administrator of the pensionplan, the employer or the other per-son is contravening a requirement ofthis Act or the regulations.

The Issue:

As agreed at the pre-hearing conference, theissue for this motion hearing is:

Does the Financial Services Tribunalhave jurisdiction to deal with the reliefsought in the Applicant’s Request forHearing?

The relief sought by the Applicant is that the“Commission by Order direct the Superinten-dent to order the Administrator to ceaseadministering the Plan with an unproperly [sic]constituted advisory committee and to causethe creation of a properly constituted advisorycommittee pursuant to the Act and formulatingdocumentation.”

Analysis and Conclusion:

Before May 3, 1999, the text of the Plandefined “Pension Advisory Committee” as “acommittee appointed by the United BrewersWarehousing Workers’ Provincial Board,” andnot a “pension advisory committee” as definedunder “Applicable Pension Legislation.”

Prior to May 3, 1999, the plan text defined“Pension Committee” as “the committee whichwas appointed by the Employer, in accordancewith Article 14.” Article 14.01 states that theAdministrator (defined as the Employer, whichis defined as Brewers Retail Inc.) may delegateany of its duties to such other person or per-sons as deemed appropriate, including but notlimited to the Employer of the PensionCommittee. The Plan text does not require aPension Advisory Committee to be establishedand is silent on the role and/or composition ofsuch a Committee.

Effective May 3, 1999, Amendment No. 2 to thePlan text deleted the existing definition of“Pension Advisory Committee” and substitutedthe following:

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“1.36 “Pension Advisory Committee” meansa committee appointed by the UnitedBrewers Warehousing Workers’ ProvincialBoard, in accordance with membership, rolesand responsibilities as defined under Section24 of the Ontario Pension Benefits Act,R.S.O. 1990.”

The 1994 Letter and the 1999 Letter providethat the respective Letters form part of theCollective Agreement. The letters do not specifythat they are incorporated into the Plan orform part of the Plan.

The Act does not authorize the Tribunal or theSuperintendent to enforce a provision of a col-lective agreement unless the provision is incor-porated by reference into the pension plan. Inthis case, the Letters are not so incorporated,nor do they require the Employer or adminis-trator to establish an advisory committee.

The Act does not place any obligation on theemployer or the administrator to establish anadvisory committee, or to ensure that a com-mittee, once established, is properly constitut-ed. Rather, section 24 of the Act provides thatmembers and former members “may establish”a pension advisory committee, and if such acommittee has been established, requires theadministrator to provide records and informa-tion to the committee.

The Superintendent’s jurisdiction under the Actis limited to the powers conferred on it by theAct, Regulation and provisions of the applicablepension plan. Section 87(1) of the Act confersremedial powers on the Superintendent inrelation to matters arising under the Act or apension plan.

The Applicant has requested the Superintendentto declare an existing pension advisorycommittee to be improperly constituted and toorder its replacement. However, there are no

grounds under the Act in the circumstances ofthis case for the Superintendent to grant therelief requested. Neither the terms of Section 24of the Act or Section 1.36 of the Plan requires apension advisory committee to be established.Therefore, there is no basis on which theSuperintendent can make a determinationunder Section 87 of the Act which would giverise to a hearing under Section 89 of the Act.Accordingly, the Tribunal has no basis onwhich to assume jurisdiction to direct theSuperintendent to order the Administrator tocease administering the Plan with an improper-ly constituted advisory committee, and to causethe creation of a properly constituted advisorycommittee.

ORDER

For the reasons noted above, the Tribunal hasdetermined that it lacks the jurisdiction to dealwith the relief sought in the Applicant’sHearing Request and therefore lacks jurisdictionto proceed with the hearing request in thecircumstances of this case.

DATED at Toronto, this 3rd day of June, 2002.

Elizabeth Greville,Member of the Tribunal and Chair of the Panel

Heather Gavin,Member of the Tribunal

C.S. (Kit) Moore,Member of the Tribunal

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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated December 21, 2001,with respect to an application for withdrawal ofmoney from a life income fund, locked-inretirement account, or a locked-in retirementincome fund (a “locked-in account”) based onfinancial hardship;


REASONS

Facts

The Applicant in this matter filed anApplication for Consent to Withdraw Moneyfrom an Ontario Locked-in RetirementAccount, Life Income Fund, or Locked-inRetirement Income Fund (the “locked-inaccount”) based on Financial Hardship (the“Application”). The Applicant applied to with-draw $2,104.37 to pay for medical expensesand an additional amount of $1,660.80 formedical expenses anticipated to be paid overthe 12 months following the date the Applicant

signed the Application for a total amount of$3,765.17. The amount of $2,104.37 was inrespect of medical expenses incurred and paidor payable by the Applicant for prescriptiondrugs and hospital expenses. The amount of$1,660.80 was in respect of the premium theApplicant intended to pay for drug and extend-ed health care coverage for the coming year.

Consent was issued by the Superintendent tothe Application that authorized the withdrawaland payment to the Applicant of the amount of$3,466.77 from his locked-in account. Thewithdrawal was authorized on the basis of theinformation and accompanying documentationthe Applicant provided which included theamount of a hospital bill: $2,104.37, an addi-tional amount for the Applicant’s medicalprescriptions for the past year: $681.20, andanother $681.20 for medical expenses theSuperintendent determined would be payablefor the 12 months following the date theApplicant signed his Application.

On December 21, 2001, the Superintendentissued a Notice of Proposal to Refuse toConsent to the Application for $298.40, the dif-ference between the amount the Applicantrequested to withdraw in his Application,$3,765.17, and the amount in the consent,$3,466.77 for the reason that none of the docu-mentation submitted with the Application sup-ported the granting of consent to withdraw anyamount in excess of the $3,466.77 amountallowed. With respect to the Applicant’sdocumentation relating to the cost of a drug

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DATE OF DECISION: June 20, 2002


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plan and extended health plan coverage, theSuperintendent stated in the Notice of Proposalthat premium amounts paid in respect of suchcoverage do not constitute medical expensesincurred and claimed under such plans. TheSuperintendent’s consent only authorized thewithdrawal of amounts to cover expenses relat-ed to prescriptions or hospital expenses actuallyincurred or to be incurred.

The Applicant filed a Request for Hearing,dated January 24, 2002 with the FinancialServices Tribunal (the “Tribunal”) with respectto the Superintendent’s Notice of Proposal toRefuse to Consent to his Application.

Issue

The issue in this proceeding is whether theSuperintendent should have consented to thepayment of the cost of the premium for drugplan and extended health plan coverage as hadbeen set out in the Applicant’s Application.

Pension Benefits Act

Subsection 67(1) of the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “Act”) gen-erally prohibits the commutation or surrenderof a pension, deferred pension, pension benefit,annuity or prescribed retirement savingsarrangement. Subject to express exceptions inthe Act, assets related to benefits accrued undera registered pension plan are meant to provideretirement income. Property division and pay-ment of support orders under the Family LawAct are such exceptions under the Act.Subsection 67(5) of the Act provides a furtherexception to this general rule in circumstancesof financial hardship, stating:

67(5) Despite subsections (1) and (2), uponapplication, the Superintendent may consentto the commutation or surrender, in wholeor in part, of a prescribed retirement savings

arrangement of a type that is prescribed forthe purposes of this subsection if theSuperintendent is satisfied as to the existenceof such circumstances of financial hardshipas may be prescribed.

The circumstances of financial hardship inwhich the Superintendent may consent to suchapplications are prescribed by section 87(1) ofRegulation 909, R.R.O. 1990, as amended (the“Regulation”). The Application in issue in thisproceeding was based on withdrawal for med-ical expenses, in accordance with paragraph 3of subsection 87(1) of the Regulation whichstates that:

The owner, his or her spouse or same-sexpartner or a dependant has incurred or willincur medical expenses for treatment of theillness or physical disability of any of them,and the expenses claimed are reasonable andare not subject to reimbursement from anyother source.

“Medical expenses” is defined under 83(1) ofthe PBA Regulation, as:

“medical expenses” means expenses forgoods and service of a medical or dentalnature including, without limiting thegenerality of the foregoing, expenses for,

(a) medical or dental services provided for by ahospital or a health care provider,

(b) services provided by an attendant or by anursing home to a person suffering from aserver and prolonged disability,

(c) services provided by a caregiver,

(d) ambulance services,

(e) travel by a person and a companion toobtain medical services,

(f) finding by an organ donor,

(g) medical devices such as wheel chairs,artificial limbs and eyeglasses,

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(h) a guide dog or hearing ear dog,

(i) dentures,

(j) rehabilitative therapy, and

(k) diagnostic testing;

It is the Superintendent’s submission that pre-miums paid in respect of drug and extendedhealth coverage do not constitute “goods andservices of a medical or dental nature.” Suchamounts are not paid to a doctor, dentist, hos-pital or other health care provider but are paidto an insurance company providing the cover-age. Premium amounts are payable regardless ofthe actual amount of any expenses incurredand are, in fact, payable even if no expenses areincurred. However, it is clear from a plain read-ing of subsection 83(1) of the Regulation thatthe definition or list of “medical expenses” isbroad and is not exhaustive. The issue is,whether or not the premiums paid for a drugplan or extended health insurance coveragethat pays for or reimburses an insured for pre-scription, medical or hospital expenses canthemselves be characterized as permitted “med-ical expenses” so as to permit the Applicantaccess to his locked-in funds to pay for suchpremiums.

It is the Tribunal’s determination in the caseof the Applicant that such premiums are sucha permitted medical expense. The Applicantsuffers from a host of serious and debilitatingailments that are chronic in nature. He hashad frequent hospital stays, has undergonenumerous surgical procedures and must take avariety of costly prescription medications.In the case of the Applicant, for the comingyear, the Tribunal accepts that the costs thatwill be incurred by the Applicant to address hismedical condition may exceed the cost of the

premium for coverage. To uphold the Super-intendent’s Notice of Proposal could as a conse-quence, require the Applicant to deplete hislocked-in funds at a faster rate than otherwiserequired.

Accordingly, on the basis of the facts specific tothe Applicant, and having regard to the openand non-exhaustive definition or list of “med-ical expenses,” the Tribunal hereby directs theSuperintendent to refrain from carrying out theNotice of Proposal dated December 21, 2001,and refers the matter of the Applicant’sApplication to the Superintendent for re-determination on the basis of this Order.

DATED at Toronto, this 20th day of June, 2002.

Martha MilczynskiChair, Financial Services Tribunal

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NOTES

The Editor, Pension Bulletin

Financial Services Commission of Ontario

5160 Yonge Street, 17th Floor

Box 85

North York, ON

M2N 6L9

PLACESTAMPHERE

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