Taylor v. The Queen, 2014 TCC 102

The question before the Tax Court of Canada was whether withdrawals from the taxpayer’s registered retirement savings plan constituted ‟annuity payments” under the definition of ‟pension income” in subsection 118(7) of the Income Tax Act (Canada) (ITA).

Subsection 118(3) of the ITA allows individual taxpayers to claim a pension income tax credit for certain eligible pension income received during a taxation year. The definition of “pension income” under subsection 118(7) includes “an annuity payment under a registered retirement savings plan.”

Following the death of her spouse in 2008, Ms. Taylor started withdrawing funds from her RRSP. Although the RRSP allowed payments to be made at Ms. Taylor’s discretion, and Ms. Taylor could have requested a lump sum payment from the RRSP, she withdrew funds from the RRSP on a periodic basis.

Ms. Taylor turned 65 in 2011, at which point, her accountant took the position that the RRSP withdrawals were annuity payments and therefore qualified for the pension credit. The Crown disagreed and took the position that the withdrawals were not annuity payments because the RRSP did not require that the payments be made on a periodic basis. Ms. Taylor’s accountant argued that the payments were payable on a periodic basis at Ms. Taylor’s direction.

The Tax Court of Canada agreed with the Crown’s position and dismissed Ms. Taylor’s appeal of her reassessment for the 2011 taxation year. It found that the withdrawals were not “annuity payments” because the RRSP could be paid out as a lump sum. Ms. Taylor’s accountant argued for a broader interpretation of the term “annuity,” on the grounds that subsection 118(3) of the ITA is intended to provide tax relief for those who receive pension income. The court rejected such a broad interpretation of the term “annuity” and found that “if Parliament had intended that periodic RRSP withdrawals made at the discretion of the holder qualify for the pension credit, it would have said so directly.”


Kartna v. Toronto (City), 2014 HRTO 395

The applicant, Mr. Kartna, worked for the City of Toronto. Mr. Kartna was subject to a collective agreement between the City and the Toronto Professional Firefighters Association, Local 3888 (CBA). Under the terms of the CBA, the City was required to provide a long-term disability (LTD) plan for its employees. The LTD plan provided that benefits would terminate at the end of the month in which the employee turns 65. Mr. Kartna commenced receiving LTD benefits in April 2011 and his benefits were terminated in September 2013 after he turned 65.

Mr. Kartna brought an application before the Human Rights Tribunal of Ontario, arguing that the termination of benefits was discriminatory on the basis of age.

Section 5 of the Ontario Human Rights Code (Code) prohibits discrimination with respect to employment on the basis of age, subject to the exception in subsection 25(2.1) which provides that this right is not infringed “by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder.” Section 44 of the Employment Standards Act, 2000 (ESA) generally prohibits an employer from offering a benefit plan that treats employees differently on the basis of the employee’s age. However, under the ESA Regulations, “age” is defined as “any age of 18 years or more and less than 65 years.”

Mr. Kartna argued that the ESA represented an “outdated approach to retirement,” and that cutting off LTD benefits had the effect of forcing employees to retire at 65. The City and the union argued that the LTD plan complied with the Code because it complied with the ESA and the regulations.

The tribunal agreed with the City and union and found that the termination of LTD benefits at 65 was permitted by the Code. Mr. Kartna’s application was dismissed.

Foster v. Cape Breton (Regional Municipality), [2014] N.S.H.R.B.I.D. No. 3

Effective July 1, 2009, the Nova Scotia legislature passed the Mandatory Retirement Act (MRA). The MRA made a number of amendments to the Human Rights Act (Nova Scotia) (Act) and the Labour Standards Code (Nova Scotia). One such change was to amend the Act to remove subsection 6(h), the exemption from the age discrimination provisions of the Act for “a bona fide plan, scheme or practice of mandatory retirement.” Subsection 6(g) of the Act continued to provide an exemption from the age discrimination provisions of the Act for a “bona fide pension plan.”

Prior to July 1, 2009, the Cape Breton Regional Municipality (CBRM) had a mandatory retirement policy in place, and the CBRM defined benefit plan included a mandatory retirement provision. The CBRM defined contribution pension plan (DC Plan) did not include an express mandatory retirement provision, but members were subject to the CBRM mandatory retirement policy. With the changes to the Act, effective July 1, 2009, the mandatory retirement policy was no longer enforceable. CBRM responded by approving an amendment to the DC Plan that provided for mandatory retirement at the age of 65.

After he was forced to retire at age 65, Mr. Foster brought a complaint before the Nova Scotia Human Rights Act Board of Inquiry (Board) alleging discrimination on the basis of age. CBRM argued that the DC Plan was a “bona fide pension plan” under subsection 6(g) of the Act and, therefore, the mandatory retirement provision was not a violation of the Act.

In reviewing prior case law, the Board relied on the Supreme Court of Canada’s (SCC) 2008 decision in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., which set out the test for a “bona fide pension plan.” In Potash, the SCC found that the bona fides test includes subjective and objective requirements. The subjective requirements “relate to motives and intentions,” and the objective requirements test requires an assessment of whether the plan is “legitimate or genuine.”

Under the objective requirement, although there was a 27-month delay in the submission of the amendment to the Nova Scotia Superintendent of Pensions due to an error made by the third party delegated administrator and the notices required to be sent to members under the Pension Benefits Act (Nova Scotia) were not provided, the Board found that the DC Plan was a bona fide plan “from all other measures.”

In considering the subjective requirement of the bona fides test, the Board rejected the argument that the amendment defeated the spirit and purpose of the Act. The Board failed to see “how CBRM’s exercise of a right contained within the Act can be seen as an attempt to defeat the Act.”

The Board dismissed Mr. Foster’s complaint on the grounds that the DC Plan constituted a bona fide pension plan under subsection 6(g) of the Act.


NCR Canada Ltd. v. International Brotherhood of Electrical Workers, Local 213 (Pension Amendment Grievance), [2014] B.C.C.A.A.A. No. 34

NCR Canada Ltd. (NCR) sponsors a pension plan (NCR Plan) for its employees. The NCR Plan was initially a defined benefit (DB) pension plan but was amended in 2001 to introduce a defined contribution (DC) component. Pursuant to the amendment, all employees hired on or after January 1, 2002 were eligible to enrol in the DC component, and employees who became members of the NCR Plan prior to January 1, 2002 were given an opportunity to elect to stay in the DB component or move to the DC component. Nineteen members of the International Brotherhood of Electrical Workers, Local 213 (Union) elected to stay in the DB component (DB Members).

In 2012, NCR announced that the NCR Plan would be amended to provide that all DB Members would cease participating in the DB component and commence participation in the DC component, effective January 1, 2013. The Union filed a grievance on behalf of the DB Members, arguing that NCR was estopped from amending the NCR Plan because of representations made to the DB Members in 2001.

The transition guide booklet provided to the DB Members by NCR in 2001 stated that those who chose to remain in the DB component “would continue to participate in the DB Pension Plan until you leave or retire,” and characterized the election as a “one-time opportunity.” In addition, the enrolment form stated that “your choice will remain in effect as long as you are actively employed by NCR.” The transition guide booklet contained a footnote with a reference to the official NCR Plan documents and the right to amend or modify the NCR Plan therein, but the enrolment form did not.

Arbitrator Marguerite Jackson found that the Union had successfully met the three conditions for estoppel: (1) an existing legal relationship between the Union and NCR in the form of a collective bargaining relationship; (2) an unequivocal representation that employees who chose to remain in the DB component would do so until they left NCR; and (3) a reliance on that representation to the DB Members’ detriment as, according to the evidence before the arbitrator, the DB Members’ retirement planning had been predicated on their continued participation in the DB component.

In reaching her decision, the arbitrator reviewed the communication materials provided to the DB Members in 2001 and noted that there was “nothing equivocal about the language that was chosen by the Employer’s representatives to help employees make an informed choice about a significant benefit.” She also found that the absence of the footnote from the enrolment form in respect of NCR’s right to amend or modify the NCR Plan was “significant.”

The arbitrator allowed the grievance and held that NCR was estopped from requiring the DB Members to commence participation in the DC component of the NCR Plan.


Hallen v. Canada (Attorney General), 2014 FC 88

Mr. Hallen had a lengthy career in the federal public service. In 2000, he left the public service and commenced employment in the private sector. At that time, he directed that his public service pension benefits be transferred to the Loba Limited pension plan (Loba Plan) under a reciprocal transfer agreement. The Canada Revenue Agency subsequently revoked the registration of the Loba Plan and his benefits were not transferred. In 2005, the Treasury Board advised Mr. Hallen in writing that under the public service plan, he was entitled to choose between a reduced annual allowance and a deferred annuity when he turned 60 and that if he did not make an election, he would be presumed to have elected to receive a deferred annuity. Mr. Hallen did not respond to the Treasury Board’s letter.

Mr. Hallen started receiving cheques in respect of his public service pension in 2011. In 2012, in response to a request from his lawyer, the Treasury Board confirmed that the options available to Mr. Hallen were those set out in its 2005 letter. Mr. Hallen subsequently sought judicial review at the Federal Court of Canada seeking a declaration that he was entitled to a pension transfer.

Under the Federal Courts Act, an application for judicial review of a “decision” must be commenced within a 30-day limitation period. The Crown argued that Mr. Hallen had failed to seek judicial review within the applicable limitation period. Mr. Hallen argued that the 2005 letter expressed the Treasury Board’s policy regarding transfers under reciprocal transfer agreements and did not constitute a “decision.”

The court held that Mr. Hallen was not challenging a policy but a decision and found that the 30-day limitation period applied. The court noted that Mr. Hallen could have sought judicial review when he received the Treasury Board’s letter in 2005 or when he started receiving pension cheques in 2011 but did not. According to the court, the 2012 letter was a “courtesy letter” and did not set out a decision. Mr. Hallen’s application for judicial review was dismissed with costs.


G. K. c. Régie des rentes, 2014 QCTAQ 02776

The petitioner contested before the Tribunal administratif du Québec (TAQ) a decision rendered by the Régie des rentes (Régie) which had refused not to partition his pensionable earnings accrued under the Québec Pension Plan further to his divorce, despite the existence of a separation agreement entered into with his ex-wife providing for their mutual renunciation to such partition.

The petitioner claims that the intent of the former spouses was to settle all economic aspects of their divorce through their separation agreement which was signed in 1995. The former spouses obtained their divorce certificate from the Ontario registrar in 1998. They ignored that the petitioner had rights under the Québec Pension Plan given that the petitioner had been living and working in Ontario for many years and only received Canada Pension Plan information statements on a periodic basis. Despite the silence of their separation agreement with respect to the petitioner's rights under the Québec Pension Plan, the petitioner claims that the former spouses’ intent was that no pensionable earnings, whatever their nature, were to be partitioned between them in the event of divorce.

Section 102.1 of the Act respecting the Québec Pension Plan, as in force as at July 1, 1992 (the version of the Act applicable to the case at bar), provides that unadjusted pensionable earnings of two former spouses shall be partitioned between them in case of divorce, unless the court indicates in the divorce judgment, inter alia, that the former spouse who would have benefited from such a partition has renounced it.

The TAQ considered three decisions of the Quebec Court of Appeal which ruled that a specific mention of the renunciation to the partition of pensionable earnings is not required for such renunciation to be valid. Language such as "renunciation to rights of family patrimony" or "renunciation to all rights arising from the marriage" suffices as a rule. The question in each case is whether the language used demonstrates an intention to renounce, knowing that a renunciation drafted in general terms can be sufficient to constitute an effective renunciation to the right to partition of pensionable earnings.

In the present case, the TAQ held that the language found in the separation agreement between the two former spouses did intend to cover all pensionable earnings, including the rights of the petitioner under the Québec Pension Plan. As a result, the TAQ ordered the Régie not to partition the petitioner's pensionable earnings accrued under the Québec Pension Plan.


Kelly c. Régie des rentes du Québec, 2014 QCTAQ 01130

This decision follows the Quebec Superior Court decision in the same matter rendered on March 28, 2013, which was summarized in our December 2013 Newsletter.

In judicial review, the Superior Court needed to decide whether the Régie and the TAQ had erred in deciding that a situation of cessation of participation under section 113 of the Supplemental Pension Plans Act(SPPA) had occurred when two employers, Maison Cousin and a division of Multi-Marques Distribution Inc. (Multi-Marques), ceased to make contributions to the Bakery and Confectionary Union and Industry Canadian Pension Fund (Bakery Plan) with respect to Bakery Plan members working for those employers. The Superior Court held that the initial TAQ decision was unreasonable because the TAQ had failed to rule on the issue as to whether the employers had withdrawn from the Bakery Plan as provided under section 198 of the SPPA. The Superior Court thus referred the case back to the TAQ to decide this issue, which led to the present decision.

The TAQ divided its ruling in two parts: (1) whether Maison Cousin and Multi-Marques had withdrawn from the Bakery Plan under section 198 of the SPPA; and (2) whether compliance with the requirements of section 113 of the SPPA is incompatible with a situation of withdrawal of employer under section 198.

The TAQ relied on the modern legislative interpretation method described by the Supreme Court of Canada in the Alberta Union of Provincial Employees v. Lethbridge Community College decision and on the QuebecInterpretation Act in order to decide whether the definition of "employer" under the bylaws of the Bakery Plan could be reconciled with the notion of employer under the SPPA, so as to determine whether Maison Cousin and Multi-Marques were in a situation of withdrawal of employer within the meaning of the SPPA.

The TAQ noted that the SPPA does not provide any definition of the term "employer," but added that one could conclude that the notion of employer under the SPPA implies that the employer needs to be an entity which has legal personality. The bylaws of the Bakery Plan, on their end, provide a formal definition of employer which refers to the union certifications in order to define the “employers” for the purposes of the Bakery Plan. The TAQ saw no contradiction between the bylaws and the SPPA with respect to the notion of employer and held that the two definitions are not mutually exclusive, are compatible and can coexist. In both cases, legal personality is required in order to qualify as an employer.

The TAQ added that even though Multi-Marques continued to contribute to the Bakery Plan on behalf of employees in other Multi-Marques divisions, this was not incompatible with a withdrawal of employer in respect of the division at issue in the present decision because each division was a distinct employer under the Bakery Plan. The TAQ relied on one of its earlier decisions which held that, in the context of a multi-employer pension plan, the debt payable by the employer under section 228 of the SPPA could be calculated separately for each division of a legal entity in respect of which a distinct group of rights was created under the Bakery Plan.

On the first question, the TAQ accordingly ruled that by no longer making contributions to the Bakery Plan, Maison Cousin and Multi-Marques did put themselves in a situation of withdrawal of employer under section 198 of the SPPA and gave rise to the application thereof. However, these withdrawals are not yet in force because under section 198 of the SPPA, a withdrawal of employer is conditional upon a modification of the pension plan, which must be filed with the Régie. The withdrawal only takes effect on the date of the plan modification once the modification is filed with the Régie.

As for the second question considered by the TAQ, the tribunal ruled that the issuance of a statement of information to participants who cease to be active participants under section 113 of the SPPA does not prevent the initiation or implementation of the process under section 198 pertaining to the withdrawal of employer and vice versa. According to the TAQ, the two actions are compatible, can coexist and one does not exclude the other.

The TAQ thus allowed the petitioner to initiate the Bakery Plan modification process in order to render effective the withdrawals of employer, modified the initial TAQ decision rendered on November 11, 2009 to include the above-mentioned findings therein, and ordered the administrator of the Bakery Plan to provide the concerned active members with statements of cessation of participation within 60 days of the TAQ decision.


Snell v. McGregor, 2014 SKQB 108

The deceased, Mr. Snell, was a former member of the Saskatchewan Healthcare Employees’ Pension Plan (SHEPP). In 2000, Mr. Snell designated his daughter as his beneficiary under SHEPP. In 2009, Mr. Snell completed a new beneficiary designation form, revoking the previous designation and naming his niece and three nephews as his beneficiaries under SHEPP (2009 Form).

SHEPP rejected the 2009 Form on the grounds that it was invalid because Mr. Snell had failed to put the name of the fourth beneficiary on a second page and had failed to state his relationship to the beneficiaries. SHEPP wrote to Mr. Snell regarding the issue on two different occasions, but Mr. Snell did not resubmit a revised form before his death in 2012.

Following his death, Mr. Snell’s niece and nephews (Applicants) applied to the Saskatchewan Court of Queen’s Bench for a declaration that in the 2009 Form, Mr. Snell had validly designated them as beneficiaries of the SHEPP pre-retirement death benefit. The Applicants argued that in addition to expressing Mr. Snell’s intentions, the 2009 Form was in the prescribed form and complied with the terms of the SHEPP text. The respondents, SHEPP and Mr. Snell’s daughter argued that SHEPP had appropriately exercised its discretion in rejecting the 2009 Form.

Subsection 67(2) of The Pension Benefits Act, 1992 (Saskatchewan) states that a member or former member may change a beneficiary designation “in the manner specified in the plan.” The court found that the only requirements under SHEPP for a valid designation were that it be in writing and on a form prescribed by SHEPP. It held that SHEPP’s grounds for rejecting the 2009 Form did not advance the purpose of the form in any way. According to the court, although a plan administrator has broad discretion to make policies and regulations, “it may not demand irrelevant information or require compliance with formalities that may serve only to impede, rather than achieve, its objectives.”

The court held that Mr. Snell had validly designated the Applicants as his beneficiaries, and granted an order declaring the Applicants as the beneficiaries of the SHEPP pre-retirement death benefit.

Wilson Estate v. Wysoski, 2014 BCSC 675

The deceased, Mr. Wilson, was in a common-law relationship with Ms. Wysoski from 1995 to 2010. Upon the end of the relationship, Ms. Wysoski commenced a family law action against Mr. Wilson claiming an interest in all real and personal property, including Mr. Wilson’s RRSP and his pension under the Pulp and Paper Workers of Canada Mackenzie Wood Products Pension Plan (PPWC Plan).

Under the final settlement between the parties, Ms. Wysoski received a portion of the RRSP and her claim to the pension was dismissed by consent. Mr. Wilson committed suicide a few days after the settlement.

Prior to his death, Mr. Wilson had removed Ms. Wysoski as beneficiary of his employer-paid benefits but failed to do so with respect to the benefits payable under the PPWC Plan. The executor of Mr. Wilson’s estate sought a declaration from the British Columbia Supreme Court that payment of the PPWC Plan pre-retirement death benefit to Ms. Wysoski was an unjust enrichment.

Pursuant to the SCC’s decision in Kerr v. Baranow, a claim for unjust enrichment can only be successful if the plaintiff can show that the defendant has been enriched, the plaintiff has suffered a corresponding deprivation and there is no juristic reason for the enrichment. The “juristic reason” inquiry is meant to limit successful unjust enrichment claims to cases where there is no reason at law for the defendant’s enrichment.

Under the Pension Benefits Standards Act (British Columbia), a pre-retirement death benefit must be paid to the surviving spouse, and where there is no surviving spouse or the spouse has waived entitlement to the benefit, to the designated beneficiary. At the time of Mr. Wilson’s death, Ms. Wysoski was designated beneficiary of the PPWC Plan pre-retirement death benefit.

The court found that because Ms. Wysoski was the designated beneficiary, there was a “juristic reason” for her enrichment. It noted that “although perhaps an unfortunate outcome, the plaintiff [the executor] has failed to prove that the enrichment is ‘unjust’ as defined in law.” The executor’s claim was dismissed.


Ontario Nurses’ Association v. Rouge Valley Health System, 2014 ONSC 1590

In March 2014, the Ontario Divisional Court found that an arbitrator’s decision that he did not have jurisdiction over four pension-related grievances was reasonable.

In the grievances, the union and three employees alleged that the Rouge Valley Health System (Hospital) was in violation of the collective agreement for “failing to properly deduct pension contributions.” The Hospital argued that the “essential character” of the grievances was outside the arbitrator’s jurisdiction. It argued that the grievances did not fall under the collective agreement but instead fell under the Healthcare of Ontario Pension Plan (HOOPP), which was not incorporated into the collective agreement. In response, the union argued that the “essential character” was connected to the Hospital’s obligation to remit contributions to HOOPP, as set out in the collective agreement. The union relied on the SCC’s decision in Bisaillon v. Concordia University and argued that the SCC endorsed a “liberal position” regarding an arbitrator’s jurisdiction over issues relating to employment conditions, “provided those conditions have an express or implicit connection to the collective agreement.”

The union also relied on subsection 48(12)(j) of the Ontario Labour Relations Act, which provides that an arbitrator has the power to interpret and apply human rights and other employment-related statutes. The union argued that pension legislation is an employment-related statute and that the arbitrator had the power to enforce the rights and obligations under the Pension Benefits Act (PBA).

After considering the arguments of both parties, Arbitrator Stout found that he did not have jurisdiction to hear the grievances. He held that the language in the collective agreement did not expressly or implicitly impose any obligations on the Hospital to make pension contributions or bring disputes regarding pensionable earnings within the purview of the collective agreement.

Addressing the union’s argument regarding the PBA, the arbitrator noted that he did have the jurisdiction to interpret and apply the PBA. However, he held that he must consider the nature and scope of the legislation and the nature of the dispute before exercising that jurisdiction. Based on the terms of the plan text, the administration manual and the requirements of the PBA, the arbitrator held that any issue involving pension contributions was “a matter between the HOOPP administrator and the Hospital.”

The arbitrator also distinguished the SCC’s decision in Bisaillon on the facts. In Bisaillon, the employer was the administrator of the pension plan and had made a commitment in several collective agreements to offer the plan “in accordance with the conditions” of the pension plan. In this case, the collective agreement only contained an obligation to enrol full-time employees and permit the enrolment of part-time employees as provided for in the plan text. In addition, because HOOPP is a multi-employer pension plan, the administrator (i.e., the HOOPP administrator) was a third party not bound by the collective agreement.

In considering the union’s application for judicial review, the Divisional Court found that Arbitrator Stout’s decision fell “within the range of reasonable outcomes” and dismissed the application.


Barba c. Québec (Régie des rentes), 2014 QCTAQ 02490

The petitioners are retirees receiving pension benefits under the pension plan of the Caisse de retraite des Industries de la mode du Québec, a multi-employer pension plan for workers in the textile industry (Caisse Plan).On December 1, 2012, an actuarial assessment found the Caisse Plan to be insolvent and the decision was made to terminate the Caisse Plan.

The petitioners challenged before TAQ a decision of the Régie pursuant to which their pension benefits were reduced to 75 per cent of their value. The petitioners’ motion was dismissed by TAQ.

In the event of the termination of a pension plan that is not fully solvent, section 210(4) of the SPPA provides that the pension committee must obtain the authorization of the Régie, subject to conditions that the Régie fixes, in order to continue to pay certain pension benefits to the retirees.

In the present case, the Caisse Plan’s pension committee applied to the Régie and was authorized to continue payment of pension benefits at 75 per cent of their value, based on the Caisse Plan’s solvency rate of 77 per cent calculated as at December 1, 2012.

In review of the Régie’s decision, the TAQ held that the Régie acted within its jurisdiction and took a reasonable decision in order to protect the interests of the Caisse Plan members and beneficiaries, based on the evidence available and given the Caisse Plan’s insolvency.


Unifor Section Locale 184 c. Québec (Régie des rentes), 2014 QCTAQ 01826

In 2012, Silicium Bécancour Inc. (Silicium) sought protection under the Companies’ Creditors Arrangement Act(CCAA). Among other things, the decision was made to terminate the company’s pension plan, given that it no longer had any active participants. The union brought a motion to stay the pension plan’s termination process, which was dismissed by the Régie. In parallel, the union also brought arbitration proceedings to ensure that Silicium would top up the pension plan’s deficiency before terminating the pension plan.

In review of the Régie’s decision, the TAQ granted the union’s motion to stay the pension plan’s termination process until final decisions were rendered in the arbitration and CCAA proceedings. The TAQ relied on section 107 of the Act Respecting Administrative Justice, pursuant to which the tribunal may suspend the execution of a contested decision if there is risk of serious and irreparable harm, which was found to be the case in the present matter. Indeed, under the ongoing CCAA proceedings, the Quebec Superior Court had rendered a decision shortly after the Régie’s refusal to stay the pension plan’s termination process, pursuant to which certain sums were to be repaid to the pension fund. The TAQ held that the plan members and beneficiaries had a sufficient colour of right and that the balance of convenience favoured them in the circumstances, and thus granted the motion to stay in order to safeguard the rights of the parties.


Rocheleau c. Québec (Régie des rentes), 2014 QCTAQ 02511

The petitioners in this matter are former employees who worked at the Montreal-East refinery of Shell Canada Ltd. (Shell) until the refinery’s shutdown on November 30, 2010. They were put on a recall list until March 1, 2011 but were never recalled by Shell. The petitioners participated in Shell’s 1994 pension plan (Shell Plan), which was registered with Alberta’s Superintendent of Pensions but was subject to the SPPA. The employees also participated in a deferred profit-sharing plan (DPSP).

In 1968, the Régie entered into a multilateral agreement with the Province of Alberta pursuant to which the Régie delegated and conferred all of its legislative functions and powers to Alberta regarding supplemental pension plans subject to the SPPA when the majority of participants in the pension plan were located in Alberta, as was the case with the Shell Plan. In the present decision, TAQ reminded the parties of the effect of such multilateral agreement and the Régie’s lack of jurisdiction over the Shell Plan as a result thereof, such that any claims related to the Shell Plan should be brought in Alberta.

In the months that followed the refinery’s shutdown in Montreal-East, the Régie, Alberta’s Superintendent of Pensions, the employees’ representatives and Shell’s pension and benefits representatives had numerous exchanges regarding the Shell Plan and DPSP. In an e-mail communication dated May 25, 2012, the Régie indicated that the Shell Plan and the DPSP should be considered as one single plan. In a second e-mail communication dated June 5, 2012, the Régie indicated that the date when the employees’ right to recall expired should be used for the purposes of calculating their pension benefits, as opposed to the date of the refinery’s shutdown.

The petitioners disagreed and brought a motion before the TAQ to challenge the Régie’s so-called decisions. Shell, as intervening party, brought a motion for dismissal in which Shell argued that the Régie’s e-mail communications were not decisions within the meaning of section 243 of the SPPA, but rather explanatory and informative documents which could not be challenged before the TAQ.

The TAQ granted Shell’s motion for dismissal. The TAQ held that, at best, the Régie’s e-mail communications merely constituted legal views on the Régie’s interpretation of the SPPA, based on the following grounds: (1) the Régie lacked legislative authority to render any decision or order in the present matter as it had delegated all of its functions and powers to Alberta pursuant to the multilateral agreement; and (2) the e-mail communications had no direct and substantive legal effect on the parties. Instead, it was Alberta’s decision dated June 14, 2012 (following receipt of the Régie’s opinion) that constituted the decision modifying the employees’ legal situation.​​​