On June 5, 2007 the Ontario Court of Appeal overturned the Divisional Court’s decision in Nolan v. Superintendent of Financial Services (otherwise known as Kerry). The Court of Appeal essentially restored the earlier, more employer-friendly decision of the Financial Services Tribunal in respect of pension plan expenses and contribution holidays. Highlights of the Court of Appeal decision include:

  • pension plan administration expenses were payable from the plan fund, as the payment of such expenses was not inconsistent with the language in the historic plan and trust documents;
  • depending on how the plan is structured, it is permissible to use surplus from the defined benefit ("DB") component of the plan to fund contributions in respect of the defined contribution component of the same plan;
  • contribution holidays taken with respect to the DB component of the plan were valid, given the language of the plan.