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Leading Cases
Koskie Minsky has an advocacy record for clients on
pension and benefits matters that speaks for itself and our lawyers have
appeared as counsel before all levels of court and tribunal on numerous leading
decisions in this field: everything from pension surplus to pension insolvency,
from class actions to advocating the rights of individuals, spouses and
same-sex partners. Below are just some of the recent leading cases on which our
lawyers have acted as counsel:
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Monsanto v. Ontario (Superintendent of Financial Services),
[2003] S.C.C.A. No. 42; (2002), 220 D.L.R. (4th) 385 (Ont. C.A.), affirming
(2001) 198 D.L.R. (4th) 109 (Ont. Div. Ct.); (2000) 25 C.C.P.B. 296. Lawyers: Mark
Zigler, Ari Kaplan. This case on pension plan surplus rights is the
first pension matter in a decade to proceed to the Supreme Court of Canada and
will be heard in 2004. We successfully represented former employees of the
National Trust Company before the Ontario Court of Appeal and Ontario
Divisional Court and previously acted for former employees of Monsanto Canada
Inc. before the Financial Services Tribunal. We are seeking to uphold the lower
courts' rulings that a pension plan sponsor must account for and distribute
surplus as part of any partial wind-up of the plan when a significant number of
employees participating in the plan have their employment terminated.
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Air Canada (Re) (2003) (Sup. Ct.). Lawyer: Murray Gold. We
acted for a large trade union representing the pension interests of employees
affected by the Air Canada insolvency proceedings in 2003.
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Aegon Canada Inc. v. ING Canada Inc. (2003), 34 C.C.P.B. 1 (Ont.
Sup. Ct.). Lawyers: Michael Mazzuca, Lesa MacDonald. The leading Ontario
case on pension plan mergers, this case was recently argued before the Court of
Appeal. We successfully represented the employees of a pension trust opposing
an employer's use of surplus funds in one plan to fund its ongoing contribution
obligations in another plan.
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Markle v. Toronto (City) (2003), 223 D.L.R. (4th) 459 (Ont.
C.A.), affirming (2002) 213 D.L.R. (4th) 362 (Sup. Ct.), leave to appeal to the
Supreme Court of Canada dismissed November 6, 2003. Lawyers: Mark Zigler, Ronald
Davis and Kirk Baert. The leading Ontario case on payment of
pension plan administrative expenses out of a pension fund, we successfully
acted for the trustees of the Metropolitan Toronto Pension Plan opposing an
amendment by the City of Toronto purporting to require the fund to pay for
ongoing administrative expenses formerly paid for by the City.
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Algoma Steel Inc. (Re) (2002), 30 C.B.R. (4th) 1 (Ont. Sup. Ct.).
Lawyers: Michael Mazzuca, Susan Rowland. We acted for the Ontario
Superintendent of Financial Services in proceedings concerning the insolvency
and restructuring of Algoma Steel and the consequent funding issues affecting
the company's pension plan.
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Ontario Teachers Pension Plan Board v. Ontario (Superintendent of Financial
Services) and Anne Stairs (2002) 33 C.C.P.B. 255, varied (2002)
35 C.C.P.B. 103 and (2003) 36 C.C.P.B. 154 (Ont. Div. Ct.). Lawyer: Ari Kaplan.
The leading case on pension plan obligations and family law, we successfully
defended the right of a former spouse of a deceased pension plan member to
require the pension plan to pay her a portion of the plan's pre-retirement
death benefit pursuant to the terms of a separation agreement. The appeal of
this decision was recently argued before the Court of Appeal.
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Fraser v. Falconbridge Ltd. (2002), 33 C.C.P.B. 60 (Ont. Sup.
Ct.); (1999) 21 C.C.P.B. 133 (Ont. Sup. Ct.). Lawyers: Mark Zigler, Susan
Philpott and Ari Kaplan. The first pension class action issued
in Ontario, we represented former employees of Kidd Creek Mines from Timmins in
a $50 Million-action concerning pension surplus rights and the scope of duties
of actuarial consultants to pension plan members. The case was certified as a
class proceeding in 1999 and we successfully negotiated a comprehensive
settlement on behalf of the class in 2002.
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Hinds v. Ontario (Superintendent of Pensions) (2002), 58 O.R.
(3d) 367 (Ont. C.A.). Lawyers: Mark Zigler, Ari Kaplan. We represented
former members of the Colgate Palmolive pension plan in this leading decision
on regulatory participation rights for employees before the pension regulator.
This case affirmed the principle first enunciated by the Ontario court in 1986
that the Ontario regulator is a fiduciary that owes a "high duty" to employees
covered by Ontario pension plans. The decision has been cited in several
subsequent cases. We subsequently assisted our clients in settling the parallel
class action proceeding against the former employer.
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Reichhold Ltd. v. Wong (2000), 47 O.R. (3d) 400 (Ont. Sup. Ct).
Lawyers: Mark Zigler, Michael Mazzuca . The leading case on the
competing rights of present and former employees to pension surplus, we
successfully represented a group of pension plan beneficiaries seeking approval
of a settlement of a class proceeding. The Court approved the pension surplus
distribution proposal entered into between the employer and plan members in
which the parties shared over $10 Million in pension surplus.
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Rosenberg v. Canada (Attorney General) (1998), 158 D.L.R. (4th)
664 (Ont. C.A.) and Ontario Public Service Employees Union Pension Plan Trust
Fund (Trustees of) v. Ontario (Management Board of Cabinet) (1998),
20 C.C.P.B. 38 (Ont. Gen. Div.). Lawyers: Mark Zigler, Murray Gold. The
leading case on pension rights for same-sex partners, we successfully
represented a large public sector union and the trustees of a public sector
pension fund in challenging the traditional definition of "spouse" in the Income
Tax Act and Pension Benefits Act .
Our pension and benefits litigation team has been advocating for our clients
for over twenty years. Below are some additional significant cases on which our
lawyers have acted as counsel:
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Collins v. Pension Commission of Ontario (1986), 31 D.L.R. (4th)
86 (Ont. Div. Ct.). This is the case widely acknowledged as the catalyst for
Ontario's pension legislative reform in the late 1980s. We acted for pensioners
and a trade union in successfully obtaining an order requiring Dominion Stores
to pay back some $40 Million in pension surplus which it withdrew from its
employee pension plan without giving notice to its employees.
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Bathgate v. National Hockey League Pension Society (1994), 110
D.L.R. (4th) 609 (Ont. C.A.), affirming 98 D.L.R. (4th) 326, leave to appeal to
the Supreme Court of Canada dismissed at [1994] S.C.C.A. No. 170- Commencing in
1991, we acted for seven former retired NHL players including Gordie Howe,
Bobby Hull, Andy Bathgate, Carl Brewer and Eddie Shack in a proceeding that
resulted in approximately $42 million in pension surplus being repaid to the
NHL Players pension fund and allocated exclusively to retired hockey players
and their beneficiaries. In 1997, the matter was litigated all the way to the
Supreme Court of Canada.
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Stelco Inc. v. Ontario (Superintendent of Pensions), (1995) 126
D.L.R. (4th) 767 (Ont. C.A.), affirming (1994) 115 D.L.R. (4th) 437 (Ont. Div.
Ct.), leave to appeal to the Supreme Court of Canada dismissed at [1995]
S.C.C.A. No. 481. We successfully acted for former salaried employees of Stelco
to have their pension plan declared partially wound up and thus provide benefit
enhancements to former employees. We were successful in having the Pension
Commission of Ontario decision upheld by the Ontario Courts and the Supreme
Court of Canada.
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Imperial Oil Ltd. v. Ontario (Superintendent of Pensions) (1997),
16 C.C.P.B. 98 (Ont. C.A.), affirming [1997] O.J. No. 1961, leave to appeal to
the Supreme Court of Canada dismissed at [1995] S.C.C.A. No. 356. From 1994 to
1998, we successfully represented former employees of Imperial Oil in seeking a
partial wind-up of the Imperial Oil pension plan before the Pension Commission
of Ontario, and on appeals to the Ontario Divisional Court and the Ontario
Court of Appeal.
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T. Eaton Company Limited (Re). In 1997, we represented the
pensioners and employees of The T. Eaton Company Limited in negotiating to a
surplus sharing proposal which helped to restructure the company, preserve
jobs, and gave plan members in excess of $240 million to enhance their pensions
and earnings. In the subsequent insolvency proceedings in 1999, we were
appointed by the Ontario Superior Court to represent the interests of Eatons'
employees regarding their severance and termination pay entitlements, health
and life insurance benefits and long term disability benefits.
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Canadian Red Cross Society (Re). In 1998 and 1999 we were
retained by the unions representing employees in the blood services industry,
and later appointed by the Ontario Superior Court in the Red Cross insolvency
proceedings, to represent employees and former employees of the Red Cross for
claims relating to the administration of the Canadian Red Cross Pension Plan.
We successfully negotiated an agreement with the Red Cross, the new blood
agencies and other creditors which addressed those claims and ensured that the
employees' share of surplus is used for their benefit.
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Unisys Canada Inc. Pension Plan - we acted for almost 3000
employees and former employees across Canada to negotiate a surplus sharing
agreement with Unisys Canada Inc. We then were successful in obtaining
regulatory approval for the distribution of over $70 million in surplus in
accordance with that agreement.
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Zimmerman v. Ontario (Superintendent of Pensions), (1990) 41
O.A.C. 78 (Div. Ct.). In 1990 and 1991, we acted in numerous proceedings before
the Pension Commission of Ontario and the Courts in matters pertaining to the
solvency of the General Motors Canadian Union Pension Plan and the challenges
brought by the Canadian Auto Workers in Oshawa with respect to the failure to
meet solvency standards. The case resulted in changes to the Ontario solvency
regulations and General Motors has since proceeded to fund its pension plan on
a more prudent basis.
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Bell Pension Recovery Group v. Bell Canada - we represented
retirees of Bell Canada in the successful resolution of a dispute pertaining to
the solvency of their group registered retirement savings plan after the demise
of Confederation Life, where the RSP assets had been held. We have since acted
for other groups that have negotiated settlements with their employers to
ensure that pension and GRRSP assets invested with Confederation Life do not
result in any loss to the plan members.
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Attorney General of Canada v. Confederation Life Insurance Company
- In the period from 1994 to 1998, we acted for former employees and retirees
of Confederation Life who claimed a share in a substantial pension surplus of
approximately $100 million. We continue to act for retirees in a claim for
continuation of life and health insurance benefits after the Confederation Life
insolvency.
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CUPE v. Ontario Hospital Association - In 1990, we acted for
numerous unions and employees to oppose a contribution holiday by the plan
sponsor in the Hospitals pension fund and also to have the fund jointly
trusteed. The court upheld the contribution holiday but, in separate
proceedings, the Pension Commission of Ontario and the Courts, on appeal,
ordered that the pension fund must be jointly trusteed in the future, with the
employees appointing one-half of the trustees. We then acted on the negotiation
of the jointly trusteed fund.
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Abulnar v. Massey Ferguson Industries Limited and Varity Corporation
- In 1989, we acted for retirees of Massey Ferguson who had their health
benefits cut off as a result of a transfer to a subsidiary corporation, Massey
Combines Inc., which later went bankrupt. The matter was settled out of court
with a renewed benefit package and past claims being honoured by the parent
company, Varity Corporation.
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CF Kingsway Inc. v. Goetz (2002), 32 C.C.P.B. 226 (Ont. Sup. Ct.)
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Ormrod v. Toronto Hydro-Electric Systems Ltd., [2002] O.J. No.
4925 (Ont. Sup. Ct.).
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Maynard v. Ontario (Superintendent of Pensions) (2000), 23
C.C.P.B. 145 (Ont. Div. Ct.)
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Sutherland v. Hudson's Bay Co., [2003] O.J. No. 2005 (Ont. Sup.
Ct.)
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Smith v. Canada Steamship Lines Ltd.
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Ontario Public Service Employees Union Local 439 v. Royal Ottawa Health Care
Group
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Burns v. Ontario (Pension Board)
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Martin v. Ontario Municipal Employees Retirement Board
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McMaster University v. Robb
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Reichhold Ltd. v. Boyer
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Deraps v. Labourer's Pension Fund of Central and Eastern Canada
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Joy Technologies Canada Inc. v. Montreal Trust Co. of Canada
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Canada (Attorney General) v. Standard Trust Co.
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International Brotherhood of Electrical Workers' Union, Local 2345 v. Callahan
- director's liability for unpaid wages and vacation pay.
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Anova Inc. Employee Retirement Pension Plan (Administrator of) v. Manufacturers
Life Insurance Co.
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Gauthier v. Gauthier.
For more information please contact
Mark Zigler.
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