Stewart v. Clark, 2012 BCSC 1093 

A recent decision of the British Columbia Supreme Court demonstrates the importance of identifying an appropriate litigation strategy from the early stages of any matter.  The plaintiff brought a proposed class action on behalf of a group of members of the Pope & Talbot Pension Plan (“Plan”), alleging that the Superintendent of Pensions had acted unlawfully in 2009 by providing a direction to the Plan administrator to provide a pro rata distribution to all Plan members on wind up of the Plan.  The plaintiff also alleged wrongdoing on the part of the Plan administrator in following the Superintendent’s direction and ignoring provisions within the Plan which the Plaintiff alleged provided for priority payments to certain members.  The plaintiff had been involved in, and had settled, previous litigation in which the plaintiff had taken the position that these same priority payment provisions were invalid.

Applications for dismissal of the action for abuse of process were brought by our firm (acting for the plan administrator) and by the Crown, and were heard by the court prior to the certification hearing which had been scheduled for August of this year.

The court dismissed the action on two separate grounds.  First, the court found that the plaintiff’s action was bound to fail because the plaintiff has no right of action by a notice of civil claim to challenge the exercise of a statutory power of decision.  The appropriate course of action would have been for the plaintiff, or any other member of the proposed class, to have applied in 2009 for a judicial review of the Superintendent’s decision.  This was not done.

The action was also dismissed as against the plan administrator.  The plaintiff’s claim against the administrator rested upon the plaintiff’s assertion that the administrator had ignored valid provisions within the Plan which provided for a priority payment to the Plaintiff and other members of the proposed class.  The Court found that the plaintiff had taken a diametrically opposed position with respect to the priority provisions in the previous litigation, and consequently had made an election between inconsistent rights.  Having elected in one action to assert that the priority provisions were invalid, he could not now assert that they were valid in order to bring a claim against the administrator.