The recent Ontario Court of Appeal decision in Carrigan v.
Carrigan Estate has caught the administrators of pension plans
governed by the Pension Benefits Act (Ontario) by surprise. The
decision is under appeal. Before the decision of a higher court is
rendered, the Ontario Court of Appeal decision has resulted in some
uncertainty in the administration of pension benefits on the death
of a member.
Mr. Carrigan was a deferred vested member of a pension plan. He
died before the commencement of pension payments. He was survived
by a common law spouse with whom he resided in a conjugal
relationship at the time of death and by a legally married spouse
from whom he was separated. He had designated the legally married
spouse, from whom he was separated, and his 2 daughters as the
beneficiaries of his pension benefits.
The issue before the court was who was entitled to the
pre-retirement death benefit: the common law spouse, the legally
married spouse in her capacity as "spouse" or the legally
married spouse (in her capacity as a designated beneficiary) and
the 2 daughters (as the other designated beneficiaries).
The decision depends on the proper interpretation of section 48
of the Pension Benefits Act (Ontario). Section 48 requires the
payment of the pre-retirement death benefit to the person who is
the member's spouse at the time of the member's death,
unless the spouse is living separate and apart from the member on
the date of the member's death. If there is no such spouse, the
pre-retirement death benefit will be payable to the designated
beneficiary or the estate of the member (if there is no designated
Both the trial judge and the Court of Appeal looked at section
48 but came to different conclusions. The trial judge ruled that
the common law spouse was entitled to the pre-retirement death
benefit as she was living with the member in a conjugal
relationship at the time of the member's death.
The Court of Appeal also looked at section 48. However, the
court decided that since the member lived separate and apart from
the married spouse at the time of death, the pre-retirement death
benefit was payable to the designated beneficiaries who happened to
be the married spouse and the two daughters.
Although the decision relates to the interpretation of the
pre-retirement death benefit provision in the Pension Benefits Act
(Ontario), it may have an impact on the interpretation of the
provisions governing post-retirement death benefits (which also
depends on whether the member has a "spouse" and whether
the "spouse" is living separate and apart from the member
at the relevant time) and similar death benefit provisions in other
provincial pension legislation. Until the uncertainty is resolved
by the decision of a higher court, plan administrators need to take
extra caution in administering the pension benefits of a member who
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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