Feb 18, 2010
February 10, 2010
Wajax Pension Surplus Challenge Update
This update is news we hoped we would never have to deliver.
After consultation with our legal counsel, we have instructed them to abandon our suit against Wajax in regards to the pension changes many years ago. This decision was finally made approximately 10 days ago. An Order will be filed with the Court dismissing the claims without costs to anyone.
History and Reasons for this Decision
The Supreme Court of Canada is the court of final resort in Canada and in the last two years this Court, in two decisions, has made it very difficult for employees to succeed in a claim relating to a conversion of a defined benefit plan to a defined contribution plan.
In particular, the Court has ruled that it is not for the courts to determine whether a plan is wound up, but rather, such a decision is for the appropriate pension regulator. In this case it would be the Ontario Regulator ( Ontario Superintendent of Financial Services).
In addition, in August 2009, the Court ruled that an employer can convert the plan from defined benefit to defined contribution and use the surplus left over after the conversion to make their portion of the required contributions to the defined contribution plan. Decisions prior to this ruling were opposite in result and were the basis of some of our claims and arguments.
These decisions are generally regarded as a blow against all employee pension cases as the regulators do not generally rule that plans are wound up. Secondly, the latest decision governs the use of the money in the plan funds, giving access to funds in the fund and also access to funds that should go back to the fund. Thus, it affects the plan amendments, the right to the surplus and the concept that funds improperly removed from the plan fund must be returned. Once returned they don’t reach the employees but remain for the use of the employer.
Recently, much has been written about the sad state of pensions in Canada and one might deduce that the sympathy of the Court is now with employers.
In our case, we had a number of claims and had claimed that certain monies were improperly paid from the plan for administrative expenses and they should be paid back to the plan fund. We also claimed that the funds could not be used by the employer because they were trust funds for the benefit of the defined benefit employees.
Until the Rogers decision noted below, this would then have formed the foundation for a claim in the court for the the windup of the plan fund with a resulting benefit to the defined contribution employees. This has been frustrated.
The two recent decisions and where they can be accessed on the internet are:
1. Buscheau v. Rogers, Communications Inc.
.
csc.lexum.umontreal.ca/en/2006/2006scc28/2006scc28.html
2.Nolan v. Kerry (Canada) Inc., 2009 SCC 39
http://csc.lexum.umontreal.ca/en/2009/2009scc39/2009scc39.html
Kerry employees were represented by Koskie Minsky a well respected Toronto legal firm, with whom our lawyers had prior meetings and discussions.
This case is well worth reading as it sets out the complexity of the issues and the differing view of 7 of our leading justices.
Finally, we want to say, that unfortunately, the decision is final and can not be appealed because it is from Canada’s court of last resort. The decision was a decision of 7 judges; 5 in the majority and 2 dissenting judgments.
The two dissent judgments reflect the history of the case prior to appeal to this Court, and were reflective of our lawyers views on the many of the issues.
Until this latest decision we felt quite confident about our case. Unfortunately, there was nothing we can do about the result in that case, and of course, the precedent would control the outcome of our claims.
Thanking you for your support in this matter
We Remain
Your Committee.
August 2, 2009,
Ed
MacEachern
MacEachern, Edmund William - -
Passed away at Ajax - Pickering
Hospital surrounded by his
family on Sunday, August 2, 2009
at the ripe old age of 84. Gone
to join his beloved wife and
best friend the late Clemence.
Ed was Sales Manager for Mine
Equipment, then Wajax during
from the 70's thru the eighties
until his retirement in
Sept-Iles. He served as a
consultant during his stay in
Labrador City. He'll be able to
have his beer and share his
jokes with Bob Sayer and Ken
Mark among others who he now
joins in Heaven. We will miss
his laughter and humour.
May 25, 2009 Wajax Pension Surplus
Challenge Update
You will
recall two years ago we published the
following announcements on our website.
Due to a
multitude of reasons the resumption of
the case was not met in the time frame
anticipated but now seems to be moving
forward.
On May 5/09
Legal representatives of Wajax and
ourselves attended a Case Management
Conference in the BC Supreme Court in
front of Mr Justice Goepel. They came to
an agreement to resume arguments on Jan
25/10. While at the time of adjournment
it was assumed a half a day or so would
complete the submissions because of the
long delay it is expected that some few
days will be required to finish this
phase of the case.
Jan. 28, 2007 Wajax Pension
Surplus Challenge Update
The lawyers for Wajax and
Wajax Retirees met in the BC Supreme
Court beginning on Jan 8/07 and
presented arguments, position papers etc
on our application for a Certification
of a Class Action Lawsuit.
After 4 and a half full days and
hundreds of documents and thousands of
words it was agreed by all parties that
the pleadings would have to be clarified
for the judge to properly rule on the
application.
Thus the case was adjourned. It will be
resumed when the calendars of the judge
and both lawyers are compatible. It is
expected this will be within the next
month and only a half day or so is
required to complete.
Dec. 19, 2006 Wajax Pension Surplus
Challenge Update
Finally Some Good News
: We have a Court date Scheduled for 5
days during the week of January 7/07.
For your info we had two other
scheduled court appearances during 2006
1. In June we were in front of a judge
for about 30 minutes when Wajax changed
their position and we were adjourned to
a scheduled two days in Sept.
2. The Sept date was again moved forward
as Wajax now stated the case would take
5 days of court time.
We are led to believe that the case
will finally proceed in January so
hopefully we will have something
positive to report after that appearance
Sept 23, 2008
It was interesting to review the booklet "Wajax
Celebrating 150 Years", although most of us
retirees who have contributed many years of
our lives to the progress of the Company
found it disappointing that the current
management did not take the trouble to mail
a copy of the booklet to all of us. At
one time Wajax was a caring company,
genuinely interested in the wellbeing of its
employees (for example, by providing a
pension plan with upgrades). Perhaps at
some time in the future Wajax will again
mature and join the ranks of those
progressive enterprises which truly value
and respect their employees, current and
retired.
JEREMY GORDON STEWART After a
brave struggle with cancer, Jerry died on
August 6, 2008 at Mt. Sinai Hospital. Jerry
is survived by his loving family, wife June
Price, sons Mark, Jeremy and Graeme,
daughters-in-law Janet, Michelle and Cathy.
Jerry was the adored Papa of Alexandra,
Cole, Ella, Molly, Henry and Malcolm. Jerry
was born in Seattle, Washington, on November
7, 1937 to the late Wilda May McCormick and
the late Gordon Keith Stewart. He leaves his
sister Patricia Winter (Stewart) and brother
William (Donna).
