Law Times

PAGE 14 CaseLawLaw SUPREME COURT OF CANADA Constitutional Law DISTRIBUTION OF LEGISLATIVE AUTHORITY Effect of s. 26 of an act respecting the preservation of agricultural land and agricultural activities (Que.) seriously restricts or impairs Parliament's power to determine where aerodromes may be constructed Two private citizens built aerodrome on land, zoned agricultural, and registered it under Aeronautics Act (Can.). Commission de protection du territoire agricole du Quebec ordered them to return land to original state pursuant to An Act respecting the preservation of agricultural land and agricul- tural activities (Que.) ("Act"), which prohibits use of lots in designated agricultural region for any purpose other than ag- riculture. Citizens challenged commission's decision, arguing that aeronautics within federal jurisdiction. Administrative Tribunal of Quebec, Court of Quebec and Superior Court all upheld the decision. Court of Appeal, however, held that interjurisdictional immunity precluded Commission from ordering dismantling of aero- drome. Appeal dismissed. Can- ada and Canadian Owners and Pilots Association ("COPA") argued that s. 26 of Act invalid because it affects where aero- dromes can be constructed, matter within exclusive juris- diction of Parliament. First step in determining whether law ultra vires is to determine its "matter". If law found in- valid, it may be saved under ancillary powers doctrine. Pith and substance analysis looks at both purpose of legislation as well as its effect. Purpose of Act to "secure a lasting ter- ritorial basis for the practice of agriculture...in the agricul- tural zones established by the regime". Section 26 supports purpose by prohibiting non- agricultural uses of lots in these zones. While it may inciden- tally affect aeronautics, main impact to preserve agricultural lots and regulate land use with- in agricultural regions, through commission. Section 26 valid provincial law relating to pro- vincial heads of power prop- erty and civil rights, matters of merely local or private nature or agriculture. Next question is whether doctrine of interjuris- dictional immunity makes Act constitutionally impermissible. Aeronautics, matter of national importance, supported under federal peace, order and good government power. Previous law established Parliament not only has power over aeronau- tics but has exclusive jurisdic- tion to determine location of aerodromes. Location of aerodromes lies within core of federal aeronautics power. Sec- tion 26 of Act purports to limit where aerodromes can be locat- ed, thereby trenching on core of federal aeronautics power. Remaining issue whether im- pact of s. 26 sufficiently serious to attract doctrine of interjuris- dictional immunity. Effect of s. 26 may be to prevent estab- lishment of new aerodrome or require demolition of existing one. This seriously restricts or impairs Parliament's power to determine where aerodromes may be constructed. Doctrine of interjurisdictional immunity applies to render Act inappli- cable to extent it impairs core of federal power. Doctrine of federal paramountcy cannot be invoked because evidence does not establish federal purpose re- garding location of aerodromes that is frustrated by provincial legislation. Laferriere v. Quebec (Procureur general) (Oct. 15, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Fish, Abella, Charron, Rothstein, and Cromwell JJ. and dissenting - Deschamps J., File No. 32604) Decision at 168 A.C.W.S. (3d) 683 was affirmed. 193 A.C.W.S. (3d) 1147 (42 pp.). Pensions SURPLUS Employees had no equitable interest in surplus, whether retained or transferred In 1961, Hudson's Bay Com- pany ("HBC") provided con- tributory, defined benefits pen- sion plan for employees that guaranteed members specified benefit upon retirement. HBC forced to contribute to plan for first 20 years to keep it solvent. HBC began paying adminis- tration expenses out of fund when it generated first actu- arial surplus in 1982. In 1987, HBC sold Northern Stores Di- vision to North West Compa- ny ("NWC"). Approximately 1,200 employees transferred from HBC to NWC. Com- panies agreed to protect pen- sions of transferred employees. NWC agreed to establish new December 13, 2010 • Law Times COURT DECISIONS CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: These cases may be found online in BestCase and other electronic resources from Canada Law Book. To subscribe, please call 1-800-565-6967. i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. pension plan providing for benefits at least equal to those provided under HBC plan in exchange for HBC transferring assets sufficient to cover defined benefits of transferred employ- ees. HBC declined to transfer portion of $94 million actuarial surplus. Transferred employees alleged HBC required to trans- fer portion of actuarial surplus to successor plan and breached fiduciary duty as plan adminis- trator to treat all pension plan members with even hand. Trial judge found in favour of HBC on issue of administration ex- penses but held that disparate treatment of beneficiaries con- stituted breach of equitable trust and required transfer of portion of actuarial surplus to remedy breach. HBC appealed issue of surplus and transferred employees cross-appealed on issue of administration ex- penses. Court of Appeal al- lowed appeal and dismissed cross-appeal. Transferred em- ployees appealed decision on both issues. Appeal dismissed. Absent statutory or common law authority creating obliga- tion on employer to pay for expenses, such obligation must arise from text and context of pension plan documents. No statutory obligation on HBC to pay expenses. Plan text deals with expenses incurred by trustee "in the management of the Fund" but does not address plan administration expenses. New trust agreements in 1971 and 1984 included provision expressly allowing HBC to charge plan administration expenses to fund. New trust agreements confirmed what was already implicitly provided for in original trust agreement. Fiduciary relationship existed between HBC as plan admin- istrator and employees/ben- eficiaries under pension plan. HBC had wide discretion with respect to pension plan which it could exercise unilaterally and which could affect interests of employees, and to which ex- ercise of discretion employees vulnerable. Pensions legisla- tion not complete code. Pen- sion Benefits Act, 1987 (Ont.) ("PBA"), establishes minimum standard for transfer of pen- sion assets. Terms of relevant plan and trust documentation may impose higher standard. Compliance with 1987 PBA not complete answer to trans- ferred employees' claim. Parties agreed pension fund held in trust and must be administered according to trust principles. Trust instrument incorporates terms of pension plan so both www.lawtimesnews.com documents relevant in deter- mining rights and obligations of employees and employer under plan. In defined pension governed by trust principles, employees have equitable inter- est in defined benefits and legal ownership of defined benefits lies with trustee. Where em- ployees entitled to actual sur- plus on termination, they also have equitable interest in total assets of fund. Vesting of actual surplus in employees contin- gent on plan terminating, on there being actual surplus once liabilities satisfied, and on em- ployees surviving date of ter- mination of trust. In this case, transferred employees do not have floating equity in total assets of fund during its sub- sistence. Plan text limits their interest to defined benefits and they are not entitled to surplus on termination. When read as whole, plan provisions indi- cate purpose of plan to provide employees with defined retire- ment benefits. Nor do pension plan documents contain any language that would typically give employees entitlement to surplus. Pension plan text indi- cates trust fund held exclusive- ly for purposes of plan and no part could be diverted except for purposes of plan. HBC did not breach fiduciary duty of even-handedness by treating retained and transferred em- ployees differently. Employees had no equitable interest in surplus, whether retained or transferred. Fact that employer may voluntarily choose to in- crease pension benefits out of surplus funds or otherwise can- not change nature of employ- ees' interest in pension fund or extend fiduciary obligations to voluntary actions of employer. No duty of even-handedness applicable to surplus since em- ployees had no equitable inter- est in plan surplus. Burke v. Hudson's Bay Co. (Oct. 7, 2010, S.C.C., McLachlin C.J.C., Binnie, LeBel, Des- champs, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32789) Decision at 167 A.C.W.S. (3d) 1007 was affirmed. 193 A.C.W.S. (3d) 1332 (43 pp.). FEDERAL COURT Injunctions INTERLOCUTORY RELIEF Motion for stay of release pending determination of minister's applications allowed Test for stay of release of de- tained refugee claimant met. Respondent was Sri Lankan citizen of Tamil ethnicity. Re- spondent was smuggled to Canada along with 492 on the ship MV "Sun Sea". Respon- dent was detained on ground that identity had not been established. After number of detention reviews and inter- views respondent was ordered temporarily released by mem- ber of Immigration Division. Applicant Minister applied for leave and judicial review of member's decision. Appli- cant Minister brought motion for stay of release pending de- termination of Minister's ap- plications. Motion allowed. Minister satisfied requisites for stay of release of respondent. Section 58 of Immigration and Refugee Protection Act (Can.), and Immigration and Refugee Protection Regulations (Can.), sanctioned detention of for- eign national whose identity was not established. There were serious issues as to interpreta- tion by member of statutory scheme related to detention and release under Act and Regulations. Irreparable harm test was also met. Minister was charged with duty of promot- ing and protecting public in- terest especially in immigration cases where there were serious questions about person's iden- tity. Irreparable harm to pub- lic interest was to be assumed from restraining Minister from discharging duty. Finally bal- ance of convenience strongly favoured Minister. Respon- dent was participant in mas- sive smuggling effort for which respondent had paid consider- able sum. Respondent's release from detention stayed. Canada (Minister of Citizen- ship and Immigration) v. XXXX (Oct. 12, 2010, F.C., Lemieux J., File No. IMM-5742-10) 193 A.C.W.S. (3d) 1285 (13 pp.). ONTARIO CIVIL CASES Assessment VALUATION In context of income-producing property, "fee simple, if unencumbered" meant value calculated without reference to leases at other than market value This was appeal from order of divisional court allowing appeal from assessment review board's assessment of appellants' prop- erties. Appellants owned bank

• Cover
• Western Union
• To Plead Or Not
• Focus On Criminal Law