Canada: Federal Court Decision In The Application For Judiciary Review In The Buschau Matter

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Pension & Employee Benefits, October 2008

Following the Supreme Court of Canada decision in Buschau, the legal representative of members and former members of the Pension Plan for Employees of Premier Cable Systems Limited, and legal representative of Rogers Communications Incorporated (RCI) and Rogers Cable Communications Inc. (employer and administrator of the Premier Plan) made submissions to the federal Acting Superintendent of the Office of Financial Institutions (the Superintendent) concerning the Pension Plan for Employees of Rogers Communications Inc., and, in particular, the portion of that plan previously known as the Premier Plan. In summary, the members requested that the Superintendent:

  • Consider the Premier Plan already terminated; or
  • Terminate the Premier Plan pursuant to section 29 of the Pension Benefits Standards Act (PBSA); or
  • Direct Rogers to terminate the Premier Plan, and
  • After termination of the Premier Plan, remove the current administrator of the Premier Plan; and
  • After termination, wind up the Premier Plan by allowing the fund to be used to buy annuities to cover pension benefits, with the balance of the surplus distributed to members.

RCI argued the merger of the RCI Plan and Premier Plan was not completed because of past court decisions that prevented RCI from completing the merger. Following the Supreme Court's decision, RCI advised it had decided to revoke the merger, thereby separating the Premier Plan and RCI Plan. RCI further submitted it had decided to amend the Premier Plan by reopening it to a new class of employees.

On the basis of the foregoing submissions, the Superintendent decided:

  • The decision by RCI to revoke the merger of the Premier Plan and RCI Plan and the reopening of the Premier Plan did not contravene the terms of the Premier Plan or the federal PBSA;
  • As a factual matter, the Premier Plan had not been terminated under the PBSA or by the employer;
  • The Premier Plan had not "terminated" within the meaning of the PBSA; Not to exercise the Superintendent's discretion to declare the Premier Plan terminated; and
  • Taking into account all of the evidence and submissions of the parties, the continued existence of the Plan was a worthy goal and the employer was continuing to provide the promised benefits and was complying with solvency requirements.

On the question of termination by the regulator, either directly by way of declaration or by directing the employer or administrator to terminate a plan, the decision noted that this was "an extreme measure, usually done only after other regulatory intervention measures have failed". The decision states that termination may be appropriate "where the pension benefits are jeopardized, the plan's funding level is not in accordance with the PBSA and cannot be rectified or the purpose of the plan is frustrated". On the amendments to reopen the Premier Plan, the decision notes that while the Premier Plan had been closed to new members since 1984, no submissions were made that the closure amendment was irrevocable. Further, the decision includes a review of the relevant plan terms and concludes they permitted the company's proposed actions of revoking the merger of the Premier Plan with the RCI Plan and reopening the former plan to new members. In conclusion, the decision states "in deciding to revoke the merger and to reopen the [Premier] Plan to new employees, RCI and Cable Inc. are not acting contrary to safe and sound financial or business practices, are not jeopardizing the pension benefits of the members, and are not contravening the PBSA nor the terms of the [Premier] Plan."

On September 11, 2008 the Federal Court released its reasons for judgment granting the application for judicial review of the Superintendent's decision and referring it back to the Superintendent for redetermination.

As noted above, the members and former members had requested that the Superintendent terminate the Premier Plan and the Superintendent declined to do so. The Superintendent had considered her power to order a plan termination under section 29 of the PBSA, found no power existing in these circumstances under paragraphs 29(2)(b) and (c) and therefore considered her powers under paragraph 29(2)(a).

Subsection 29(2) of the Act delegates to the Superintendent the discretion to terminate a pension plan: (2) The Superintendent may declare the whole or part of a pension plan terminated where (a) there is any suspension or cessation of employer contributions in respect of all or part of the plan members... The Superintendent found that, given the cessation of contributions was the result of contribution holidays taken in accordance with the PBSA, "the situation did not warrant the use of her discretion to terminate the Plan."

The court considered the Superintendent's decision and found as follows:

[51] In my opinion, the Superintendent failed to appreciate the extent of her discretion under paragraph 29(2)(a) and rendered a decision that was unreasonable given the evidence before her. I am of this opinion for two reasons. Firstly, the Superintendent failed to recognize that even legitimate contribution holidays that are valid under the Act can be considered illegitimate for the purposes of paragraph 29(2)(a) if they are used to hide an improper refusal to terminate on the part of the employer. The evidence before the Superintendent included that in the past, Rogers Inc. had replaced an uncooperative actuary and trustee, had improperly amended the Plan, and had improperly withdrawn funds from the Plan all with the objective of getting at the Plan's surplus. In my opinion, this evidence, coupled with the fact that Roger Inc. had closed the Plan in 1984, had stopped making contributions to the Plan, and had no intention to reopen the Plan until the applicants filed their petition for termination, makes the Superintendent's finding unreasonable.

[52] Secondly, the Superintendent failed to appreciate her duty to the employees under paragraph 29(2)(a). As mentioned by the Supreme Court of Canada, the powers delegated under the Act must be exercised in light of its remedial purpose. This duty is not to be taken lightly as it provides Plan members with a much needed remedy. In light of these failures on the part of the Superintendent, I am of the opinion that her decision not to exercise her discretion under paragraph 29(2)(a) was unreasonable. I would allow the judicial review on this ground.

It is difficult to reconcile this decision with the fact that the Supreme Court of Canada left to the Superintendent's discretion the decision as to whether to require a wind up of the pension plan.

Rogers has 30 days from September 11 to appeal this matter to the Federal Court of Appeal and we have been told that it is their intention to do so.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

3 Nov 2016, Other, Vancouver, Canada

“Risk” is the new black. It’s on the lips of every CEO, CFO, GC and board member — as it should be. Can you spot it? How do you analyze it? Are you equipped to manage it?

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.