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TABLE OF CONTENTS

THE FINANCIAL SERVICES COMMISSION OF ONTARIO

JANUARY 2003 • VOLUME 12, ISSUE 1

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General AnnouncementsImportant Notice to Administrators .................1

Introduction of Bill 198 ....................................2

Pension Division Staff Changes ........................3

Contacts for Plan Specific Enquiries .................3

Pension Advisory Committees — Membershipas at November 2002...................................4

Hearings/Court MattersEnforcement Matters .........................................5

Court Matters ....................................................6

Superintendent of Financial ServicesAppointment of Administrators —

Section 71 of the PBA..................................7

Notices of Proposal to Make an Order..............9

Notices of Proposal to Make a Declaration....................................37

Notices of Proposal to Refuse to Make an Order...........................................47

Orders that Pension Plans be Wound Up .................................................50

Consents to Payments of Surplus out of Wound Up Pension Plans..........................60

Declaration that the Pension Benefits Guarantee Fund Applies to Pension Plans — Subsection 83(1) of the PBA..................................................67

Allocations of Money from the Pension Benefits Guarantee Fund .............75

Tribunal ActivitiesAppointments of Tribunal Members...............81

Pension Hearings Before the Financial Services Tribunal........................................82

Financial Services Tribunal Decisions with Reasons..............................................95

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Pension Bulletin

Volume 12, Issue 1

All publications provided by the Financial Services Commission of Ontario (FSCO) in written or electronicformats have been prepared by FSCO to provide general information about pension matters to the public.

Information in this Bulletin or any FSCO publication is provided by FSCO upon the express understandingthat neither FSCO nor any member of the staff of FSCO is providing legal, actuarial, accounting or otherprofessional advice or services whatsoever with respect to the material contained in this Bulletin or anyFSCO publication. FSCO and staff of FSCO are not responsible for any action, costs, damages or liabilityarising from the use of any information contained in FSCO publications nor in respect of the consequences ofanything done or omitted to be done by any person in reliance upon the whole or any part of the contents of this Bulletin or any FSCO product.

The Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 as amended, the PensionBenefits Act, R.S.O. 1990, c. P.8 as amended, R.R.O. 1990, Reg. 909 as amended, the terms of the pensionplan and trust, if any, and the policies, procedures and practices of FSCO should be considered in determining specific legal requirements, and professional advice should be sought.

This material is owned by the Government of Ontario and protected by copyright law. It may notbe reproduced or redistributed for commercial purposes without the prior written permission of theQueen’s Printer for Ontario.

If it is reproduced or redistributed for non-commercial purposes, Crown copyright is to beacknowledged.

PERMISSION

To request permission to reproduce all or part of this material for commercial purposes, pleasecontact the Queen’s Printer’s representative:

Senior Copyright Analyst

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E-mail: [email protected]

© Queen’s Printer for Ontario, 2003

ISBN 1481- 6156

Ce document est disponible en français

Pension Bulletin

The Editor, Pension Bulletin

Financial Services Commission of Ontario

5160 Yonge Street, 17th Floor

Box 85

North York, ON

M2N 6L9

PLACESTAMPHERE

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GENERAL ANNOUNCEMENTS

Important Notice to AdministratorsPlease note the following information concerning the filing requirements of your AnnualInformation Return (AIR) and your Pension Fund Financial Statement. Both of these documents arerequired to be filed under the Pension Benefits Act, R.S.O. 1990.

Annual Information ReturnThe AIR form is mailed out by the Financial Services Commission of Ontario (FSCO) 3 months afterthe fiscal year end of your pension plan. The AIR must be completed and returned with the requiredannual filing fee prior to the due date specified on page 5 of the AIR form.

Pension Fund Financial StatementsSection 76 of Regulation 909, R.R.O. 1990, as amended, contains the requirements for filing theannual Financial Statements for the pension fund or plan in detail. In addition to filing theFinancial Statements, if at the end of the fiscal year end of a pension plan, the plan has $3,000,000or more in assets calculated at market value, the administrator must ALSO file an auditor’s report inrespect of the financial statement.

Please submit your completed AIR for processing to:

Ministry of FinanceRevenue Operations and Client Services BranchP.O. Box 620 33 King Street WestOshawa ON L1H 8E9

Please submit your completed Financial Statements directly to the FinancialServices Commission of Ontario at:

Financial Services Commission of Ontario Pension Plans Branch5160 Yonge Street, 4th FloorP.O. Box 85North York ON M2N 6L9

To avoid delays in processing, please send your Financial Statements and the AIR to the correct address.

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Introduction of Bill 198

On December 4, 2002, the Minister announced that the government received unanimous consentto withdraw the amendments to the PBA from Bill 198. The Minister said in a media release:

“This government has made a clear commitment to further consultations. We are committed to ongoing efforts with our stakeholders and determining the best steps to address the pension issues.”The Minister also stated that the government is committed to working with stakeholders to create anexpert committee to examine how Ontario should address these issues.

On October 30, 2002, the Hon. Janet Ecker, Minister of Finance, introduced Bill 198, “Keeping thePromise for a Strong Economy Act (Budget Measurers), 2002”. Part XXV contained amendments to thePension Benefits Act (PBA) that would, if enacted, have amended the rules regarding the payment ofsurplus from pension plans, partial wind ups, contribution holidays, and refunds to employers fromdefined contribution plans in certain situations. In addition, the Bill provided for the payment of pension benefits of members who could not be found when a plan fully wound up in a trust unitadministered by the Financial Services Commission of Ontario.

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Pension Division Staff ChangesRoger Smithies has been seconded to act as Manager of the Pension and Income Security PolicyBranch of the Ministry of Finance. Jerry Williams has assumed the position of Acting Manager ofthe Pension Policy Unit. Fatima Vieira joined the Pension Policy Unit as a Policy Analyst.

Contacts for Plan Specific Enquiries

Contact Name Title Phone Number Allocation Alpha Range

Jaan Pringi Sr. Pension Officer (416) 226-7826Gulnar Chandani Pension Officer (416) 226-7770 #’s–AssociatedPenny McIlraith Pension Officer (416) 226-7822 Associates–BulkIrene Mook-Sang Pension Officer (416) 226-7824 Bull–CemStanley Chan Pension Officer (416) 226-7829 Cen–CzKathy Carmosino Pension Officer (416) 226-7823 I–KingPreethi Anthonypillai Pension Officer (416) 226-7812 Kinh–MarkGino Marandola Sr. Pension Officer (416) 226-7820Calvin Andrews Pension Officer (416) 226-7768 Gko–HAnna Vani Pension Officer (416) 226-7833 D–EmJohn Graham Pension Officer (416) 226-7774 Marl–NesJulina Lam Pension Officer (416) 226-7815 Net–PepAnna Vani Pension Officer (416) 226-7833 Peq–RobRosemin Jiwa Jutha Sr. Pension Officer (416) 226-7816John Khing Shan Pension Officer (416) 590-7237 En–GknPeter Dunlop Pension Officer (416) 226-7860 Roc–SonsHae-Jin Kim Pension Officer (416) 226-7876 Sont–The DropDavid Allan Pension Officer (416) 226-7803 The Droq–UnicorpMark Lucyk Pension Officer (416) 226-7781 Unicorp–ZRobin Gray Pension Officer (416) 226-7855

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FSCO Pension Advisory Committees — Membership as at November 2002

Accounting and Assurance Advisory Committee

Besler, Jason Cassidy, JimEigl, Charlie (Chair) Finn, Mary AnnFrench, Mike Koehli, RonRacanelli, Nick Turner, EricWade, Jack Walker, Albert

Actuarial Advisory Committee

Cohen, Lorne (Vice-Chair) DiRisio, Wendy Figueiredo, Karen (Chair) Hart, DavidHutchinson, Laurie Levy, ThomasMorrison, Dan Peng, PeterPitcher, Clare Robertson, MarcusRosenblat, Rob

Investment Advisory Committee

Bertram, Bob Franks, JimGrantier, Bruce Kyle, ClaireMercier, Eileen Mills, DanielPennal, Peter Phelps, Tom (Vice-Chair)Pond, Robin Schaefer, KlausWith, Alf (Chair)

Legal Advisory CommitteeForgie, Jeremy Gold, Murray (Vice-Chair)Healy, Priscilla Lokan, AndrewNachshen, Gary (Chair) O’Reilly, HughPicard, Mary Rienzo, DougWhiston, Bethune

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The information set out below is current toNovember 26, 2002.

Enforcement Matters

i. Canadian Corporation Creation Center(CCCC) Charges under the Pension Benefits Act (the“Act”) were laid against the CCCC Pension Planadministrator, the individual trustees, CCCCand related companies on September 12, 2001.The charges relate to a scheme whereby lockedin accounts were assigned to the defendant com-panies in return for the promise to extend a loanto the locked in account holder. A first appear-ance occurred on October 9, 2001. A secondappearance occurred on December 6, 2001, atwhich time one of the individual trustees plead-ed guilty to a charge of failing to administer theCCCC Pension Plan in accordance with the Act.A fine of $5000 inclusive of victim surchargewas levied. The charges against some of thedefendants were withdrawn on June 17, 2002.The final set of related charges against SandraWeinstein was withdrawn on August 23, 2002.

ii. Club 300 Bowl (BC)Charges were laid against the corporation andboth directors and officers for failing to payfunds deducted from employees’ pay into thepension plan, failing to pay the requiredemployer’s contributions into the pension plan,failing to file Annual Information Returns andFinancial Statements for fiscal years 1995 to1998 and failing to file a wind-up report. Thefirst appearance for the charges occurred on July 24, 2002. The fourth court appearance isDecember 4, 2002.

iii. Dubreuil Forest Products LimitedCharges were laid for failing to file a financialstatement. The first appearance for the chargesoccurred on March 5, 2002. The matter was sub-sequently adjourned to August 27, 2002. OnAugust 27, 2002, Dubreuil Forest Productspleaded guilty to both counts on the informa-tion, convictions were entered and a fine of$10,000.00 was imposed.

iv. Chris BainMicrocolor Dispersions Inc. (“Microcolor”)failed to remit both employer and employeecontributions to its pension plan in breach ofthe Act. Both the Company and its then partowner/director Chris Bain, were charged underthe Act. Bain was charged in his personal capac-ity with being a director who had acquiesced orpermitted Microcolor to breach the Act. BothBain and the company were convicted. A proba-tion order was made against Bain requiring himto make additional payments to the pensionfund. He failed to comply with the order andwas charged with breach of the probation order.The trial is scheduled for January 27, 2003.

v. Microcolor Dispersion Inc.Microcolor was charged and convicted of failingto remit both employer and employee contribu-tions into its pension plan, in respect of a cer-tain period, in breach of the Act. The requiredcontributions were not made and the companyhas been charged again in respect of a later peri-od. A judicial pre-trial is scheduled for January13, 2003.

vi. John ParkerJohn Parker is a director of Microcolor. He hasbeen charged in his personal capacity with per-mitting or acquiescing in Microcolor’s failure toremit the employer and employees’ contribu-tions into the pension plan. The next appear-ance will take place on November 8, 2002.

HEARINGS/COURT MATTERS

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vii. Mimik Industries Inc.Charges were laid against the employer, MimikIndustries Inc., and against an officer of theemployer for failing to remit the required con-tributions to the pension plan. The charges arebased on the employer’s failure to pay the entireamount of arrears due under a probation orderdated October 9, 1997 — approximately$31,500 is outstanding. A judicial pre-trial isscheduled for February 5, 2003.

viii. Rellok Ltd.Charges were laid for failing to pay the filingfees for annual information return for two con-secutive years. The first appearance was on June 28, 2002, when the matter was adjournedto July 30, 2002. On July 30, 2002, the matterwas adjourned to September 27, 2002. OnSeptember 27, 2002, Rellok Ltd. pleaded guiltyto both counts on the information, convictionswere entered on both counts and Rellok wasfined $2,000.00.

Court Matters

i. Monsanto Canada Inc.On April 29 and 30, 2002, the Court of Appealheard the appeal of the Divisional Court’s deci-sion brought by Monsanto Canada Inc., theAssociation of Canadian Pension Management,and the National Trust Company. The issues arewhether the Act compels a distribution of sur-plus on partial wind up and whether the doc-trine of legitimate expectation applies. TheDivisional Court had unanimously allowed theSuperintendent’s appeal of the FinancialServices Tribunal’s majority decision, whichheld that the Act does not compel a distributionof surplus on partial wind up and that the doc-trine of legitimate expectation applied.

On November 22, 2002, the Court of Appealunanimously dismissed the appeal, holding thatsubsection 70(6) of the PBA requires a distribu-tion of surplus on partial wind up and that thedoctrine of legitimate expectation does not apply.

ii. Ontario Teachers’ Pension Plan (Anne Stairs)On May 24, 2002, the Divisional Court heardan appeal by Anne Stairs against the FinancialServices Tribunal’s decision that directed theSuperintendent to refuse to carry out a proposalto order the Teachers’ Pension Plan Board topay certain survivor benefits to Ms. Stairs, a former spouse of the plan member who diedbefore reaching retirement age. The Tribunalheld that a separation agreement awarding Ms. Stairs an interest in the plan member’s pen-sion benefits (including death benefits) couldnot be enforced under the Act, as death benefitswere not property and the plan member’sspouse at the time of his death was not a partyto the separation agreement.

The Divisional Court released its decision onJune 18, 2002. The appeal was allowed. TheCourt found that death benefits were propertythat could be assigned and that subsection48(13) of the Act clearly gave Ms. Stairs aninterest in the death benefits. The DivisionalCourt held that the standard of review is rea-sonableness, but the standard is correctnesswhen the Tribunal interprets family law or thecommon law.

The parties returned to argue the amount of Ms. Stairs entitlement before the DivisionalCourt on September 3, 2002. The court reservedits decision.

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Appointment of Administrators — Section 71 of the PBA

1. Thompson Actuarial as the Administrator of the Commercial Aluminum (1993) Limited HourlyEmployees Pension Plan (Registration No. 1010289), effective immediately.

DATED at Toronto, Ontario, this 4th day of October, 2002.

2. PricewaterhouseCoopers as the Administrator of the Pension Plan for Non-Bargaining SalariedEmployees of Trailmobile Trailer Canada Ltd. (Registration No. 337006), effective immediately.

DATED at Toronto, Ontario, this 1st day of October, 2002.

3. Maritime Life Assurance Company as the Administrator of the Registered Pension Plan forCunningham Foundry, a Division Of Quint Industries Inc. (Registration No. 0432450), effectiveimmediately.

DATED at Toronto, Ontario, this 11th day of September, 2002.

4. London Life Insurance Company as the Administrator of the Employee Retirement Plan for theEmployees of Piccione Machine Tool & Gear Mfg. Ltd. (Registration No. 582080), effectiveimmediately.


5. Morneau Sobeco as the Administrator of the Algoma Steel Inc. Salaried Pension Plan forEmployees in Canada (Registration No. 335810), effective immediately.


6. Morneau Sobeco as the Administrator of the Non-Contributory Pension Plan Covering Hourly PaidBargaining Unit Employees of Algoma Steel Inc. (Registration No. 335802), effective immediately.


7. Morneau Sobeco as the Administrator of the Pension Plan for Employees of General PublishingCo. Limited (Registration No. 0563148), effective immediately.


8. Morneau Sobeco as the Administrator of the Pension Plan For Salaried Employees of the RealEstate Division of Olympia & York Developments (Registration No. 570754), effective immediately.

DATED at Toronto, Ontario, this 13th day of August, 2002.

9. Mackenzie Financial as the Administrator of the Registered Pension Plan for the Employees ofP.R. Manufacturing Incorporated (Registration No. 1055029), effective immediately.

DATED at Toronto, Ontario, this 17th day of July, 2002.

10. Clarica Financial as the Administrator of the Registered Pension Plan for Employees of SuperpacAcquisitions Inc. (Registration No. 1054071), effective immediately.


SUPERINTENDENT OF FINANCIAL SERVICES

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11. Manulife Financial as the Administrator of the Pension Plan for OSF Inc. (Registration No. 594366),effective immediately.


12. Morneau Sobeco as the Administrator of the Peterborough Paper Converters Pension Plan(Registration No. 283358), effective immediately.


13. Standard Life Assurance Company as the Administrator of the Pension Plan for the Employees ofDanbel Inc. (Registration No. 1047687), effective immediately.

DATED at Toronto, Ontario, this 3rd day of July, 2002.

14. Canada Life Assurance Company as the Administrator of the Pension Plan for SalariedEmployees of Mosler Canada Inc. (Registration No. 941732), effective immediately.

DATED at Toronto, Ontario, this 23rd day of May, 2002.

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c.28 (the “Act”);

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the RetirementPlan for Certain Unionized Employees of Beta Brands Limited, Registration No. 1050210;TO: Beta Brands Limited

Attention: Mr. George HarrisonCFO & Secretary1156 Dundas Street EastLondon ON N5W 5Y4

NOTICE OF PROPOSALI PROPOSE TO MAKE AN ORDER under s. 78(4) of the Act, consenting to the paymentout of the Retirement Plan for CertainUnionized Employees of Beta Brands Limited,Registration No. 1050210 (the “Plan”), to BetaBrands Limited in the amount of $17,376.10 asat June 30, 2001, plus interest at the fund rateof return thereon to the date of payment.

I PROPOSE TO MAKE THIS ORDER FORTHE FOLLOWING REASONS:

1. Beta Brands Limited is the employer asdefined in the Plan (the “Employer”).

2. As a result of an advance contribution of$50,000 to the Plan while an actuarial valua-tion was prepared, the 1998 employer cur-rent service cost and special payments madein December 1999 did not take into account

the advance contribution and an overpay-ment resulted. The advance contributions,after taking into account interest owed tothe fund in respect of late contribution pay-ments, resulted in an overpayment of $17,376.10 as at June 30, 2001.

3. Evidence of the overpayments to the fundhas been submitted to the Financial ServicesCommission of Ontario.

4. There were no member submissions madeabout the repayment.

5. The application appears to comply with section 78(4) of the Act.

6. Such further and other reasons as come tomy attention.

In accordance with subsection 105.(1) of theAct, an extension of the time limit under sub-section 78(4) has been given.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to subsection 89(6) of the Act, if, with-in thirty (30) days after this Notice of Proposalis served on you, you deliver to the Tribunal awritten notice that you require a hearing.1

Your written notice requiring a hearing must bedelivered to:

Financial Services Tribunal14th Floor, 5160 Yonge StreetNorth York ON M2N 6L9

Attn: The Registrar

Notices of Proposal to Make an Order

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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served, or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served, ordelivered on the seventh day after mailing.

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IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OF PROPOSAL IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE ORDERPROPOSED HEREIN.

DATED at Toronto, Ontario, this 19th day ofJune, 2002.

K. David Gordon Deputy Superintendent, Pension Division

cc: Mr. Eric Poirier, Mercer Human Resource ConsultingMr. Michael E. Labute, Mercer Human Resource Consulting

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, consent-ing to a payment out of the Pension Plan forSalaried Union Employees of BICC PhillipsInc. (Located at Brockville, Ontario), Registration No. 370205;

TO: BICC Canada Inc.c/o Balfour Beatty Construction, Inc.

Attention: Ms. Joanne Bonfiglio

254 South Main Street

New City NY 10956 USA

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s. 78(4) of the Act, consenting to the paymentout of the Pension Plan for Salaried UnionEmployees of BICC Phillips Inc. (Located atBrockville, Ontario), Registration No. 370205(the “Plan”), to BICC Cables Canada Inc. in theamount of $23,735 as at August 22, 2000,adjusted for expenses, plus investment earningsthereon to the date of payment.


1. BICC Canada Inc. is the employer as definedin the Plan (the “Employer”), as amendedby the Articles of Amalgamation at January1, 2001.

2. As a result of the purchase of annuities in1999 for the remaining members of thePlan, the company was required to make anadditional contribution to the Plan to fundthe cost of the annuity purchase. After the

insurer had collected all the required docu-mentation and completed its administrativework, it was ascertained that the amountthe company paid the insurer exceeded thefinal cost of the annuities. The insurancecompany refunded the excess amount plusaccumulated interest to the trust fund of thePlan in 2000. The company is making anapplication for a refund from the trust fundof the excess amount.

3. Evidence of the overpayment to the fund inthe form of a copy of the initial annuityquote summary from Industrial Alliance LifeInsurance Company and the final reconcili-ation from Industrial Alliance, indicatingthe refund amount plus interest as at August22, 2000, has been submitted to theFinancial Services Commission of Ontario.

5. There were three member submissions madeabout the repayment in response to thenotice of the application provided to themby the company, none of which containedsubstantive submissions regarding the appli-cation or Act or the Plan documents.

6. The application appears to comply with sec-tion 78(4) of the Act.



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Attn: The Registrar



K. David Gordon Deputy Superintendent, Pension Division

cc: Mr. Duncan Richardson, Mercer Human Resource ConsultingMr. Willard M. BurkeMr. Donald W. ConlinMr. Arthur W. Lane

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, R.S.O.1997, c.28;

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Pension BenefitsAct, as amended by the Financial ServicesCommission of Ontario Act, 1997, R.S.O. 1997,c.28, respecting the Pension Plan for theEmployees of Kaufman of Collingwood,The Furniture Division of William H.Kaufman Inc., Registration Number0340091 (the “Pension Plan”);

TO: The Standard Life Assurance Company1245 Sherbrooke Street WestMontreal PQ H3G 1G3

Attention: Jean-Claude LebelPension Actuary

Administrator of the PensionPlan for the Employees ofKaufman of Collingwood, The Furniture Division ofWilliam H. Kaufman Inc.

AND TO: Kaufman of Collingwood, The Furniture Division of William H. Kaufman Inc.201 Balsalm StreetCollingwood ON L9Y 3Y7

Attention: Barry KnoxController

Employer

AND TO: Ernst & Young Inc.Ernst & Young TowerP.O. Box 251, 222 Bay StreetToronto-Dominion CentreToronto ON M5K 1J7

Attention: Jorden Sleeth

Receiver and Trustee inBankruptcy for William H.Kaufman Inc.

NOTICE OF PROPOSAL TO MAKE AN ORDER

I PROPOSE TO MAKE AN ORDER that thePension Plan for the Employees of Kaufman ofCollingwood, The Furniture Division of WilliamH. Kaufman Inc., No. 0340349, be wound up infull, effective July 14, 2000.I propose to make this order pursuant to subsec-tion 69(1) of the Pension Benefits Act, R.S.O.1990, c. P.8, as amended (the “Act”).


1. There was a cessation or suspension oremployer contributions to the pensionfund.

2. A significant number of the members of thepension plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result the reorganization of the busi-ness of the employer.

3. The employer is bankrupt within the mean-ing of the Bankruptcy Act (Canada).

4. A significant number of members of thepension plan cease to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer.

5. All or a significant portion of the businesscarried on by the employer at a specific loca-tion is discontinued.

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6. All or part of the employer’s business or allor part of the assets of the employer’s busi-ness are sold, assigned or otherwise disposedof and the person who acquires the businessor assets does not provide a pension plan forthe members of the employer’s pension planwho become employees of the person.

7. Such further reasons as may come to myattention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to section 89(6) of the Act, if, withinthirty (30) days after the Notice of Proposal isserved on you, you deliver to the Tribunal awritten notice that you require a hearing.1

Any notice requiring a hearing shall be deliv-ered to:

Financial Services Tribunal5160 Yonge Street14th FloorToronto, OntarioM2N 6L9

Attention: The Registrar

FOR FURTHER INFORMATION, contact the Registrar of the Tribunal by phone at 416-226-7752, toll free at 1-800-668-0128, ext. 7752,or by fax at 416-226-7750.

IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE OF THIS NOTICE OFPROPOSAL IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE ORDERPROPOSED HEREIN.


K. David GordonDeputy Superintendent, Pension Division

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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the date of mailing.

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Pension BenefitsAct, as amended by the Financial ServicesCommission of Ontario Act, 1997, R.S.O. 1997,c.28, respecting the Pension Plan for theEmployees of Kaufman Footwear,Division of William H. Kaufman Inc.,Registration Number 0340349 (the“Pension Plan”)



Administrator of the PensionPlan for the Employees ofKaufman Footwear, Divisionof William H. Kaufman Inc.

AND TO: Kaufman Footwear, Division of William H. Kaufman Inc.P.O. Box 9005410 King Street WestKitchener ON N2G 4J8

Attention: S.I. SnyderVice President, Finance

Employer



Receiver and Trustee inBankruptcy for William H.Kaufman Inc.

AND TO: United Steelworkers of America89 Dawson RoadGuelph ON N1H 1B1

Attention: Ken Dawson

NOTICE OF PROPOSAL TO MAKE AN ORDER

I PROPOSE TO MAKE AN ORDER that thePension Plan for the Employees of KaufmanFootwear, Division of William H. Kaufman Inc.,No. 0340349, be wound up in full effective July21, 2000.

I propose to make this order pursuant to subsec-tion 69(1) of the Pension Benefits Act, R.S.O.1990, c. P.8, as amended (the “Act”).


1. There was a cessation or suspension oremployer contributions to the pensionfund.

2. A significant number of the members of thepension plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result the reorganization of the busi-ness of the employer.

3. The employer is bankrupt within the mean-ing of the Bankruptcy Act (Canada).

4. A significant number of members of thepension plan cease to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer.

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5. All or a significant portion of the businesscarried on by the employer at a specific loca-tion is discontinued.


YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to section 89(6) of the Act, if, withinthirty (30) days after the Notice of Proposal isserved on you, you deliver to the Tribunal awritten notice that you require a hearing.1




FOR FURTHER INFORMATION, contact theRegistrar of the Tribunal by phone at 416-226-7752, toll free at 1-800-668-0128, ext. 7752, orby fax at 416-226-7750.

IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE OF THIS NOTICE OFPROPOSAL, IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE ORDERPROPOSED HEREIN.



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1NOTE — Pursuant to section 112 of the Act any Notice, Order or other document is sufficiently given, served or delivered if deliv-ered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served or deliveredon the seventh day after the date of mailing.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the Pension Planfor Hourly Employees of BICC PhillipsInc. (Located at its Brockville Factory),Registration No. 293753;


Attention: Ms. Joanne Bonfiglio254 South Main StreetNew City NY 10956 USA

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(4) of the Act, consenting to the payment outof the Pension Plan for Hourly Employees ofBICC Phillips Inc. (Located at its BrockvilleFactory), Registration No. 293753 (the “Plan”),to BICC Canada Inc. in the amount of $782,818as at August 22, 2000, adjusted for expenses,plus investment earnings thereon to the date of payment.


1. BICC Canada Inc. is the employer as definedin the Plan (the “Employer”), as amendedby the Articles of Amalgamation at January1, 2001.

2. As a result of the purchase of annuities in1999 for the remaining members of thePlan, the company was required to make an

additional contribution to the Plan to fundthe cost of the annuity purchase. After theinsurer had collected all the required docu-mentation and completed its administrativework, it was ascertained that the amountthe company paid the insurer exceeded thefinal cost of the annuities. The insurancecompany refunded the excess amount plusaccumulated interest to the trust fund of thePlan in 2000. The company is making anapplication for a refund from the trust fundof the excess amount.

3. Evidence of the overpayment to the fund inthe form of a copy of the initial annuityquote summary from Industrial Alliance LifeInsurance Company and the final reconcili-ation from Industrial Alliance, indicatingthe refund amount plus interest as at August22, 2000, has been submitted to theFinancial Services Commission of Ontario.

4. There were ten member submissions madeabout the repayment in response to thenotice of the application provided to themby the company, none of which containedsubstantive submissions regarding the appli-cation or Act or the Plan documents.




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Attn: The Registrar




cc: Mr. Duncan Richardson, Mercer Human Resource ConsultingMr. William GreenhamMr. Roger EyreMr. Malcolm BlairMr. Giovanni HreliaMr. Robert C. AndressMr. W.G. HaggartMr. Earl G. MottMr. J. Richard GillMr. Arthur W. LaneMr. Donald W. Conlin

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the BoehringerIngelheim (Canada) Ltd./Ltée Employees’Pension Plan, Registration No. 356162;

TO: Boehringer Ingelheim (Canada) Ltd./Ltée

Attention: Louise MullerManager, Human Resources5180 South Service RoadBurlington ON L7L 5H4

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(4) of the Act, consenting to the payment outof the Boehringer Ingelheim (Canada) Ltd./LtéeEmployees’ Pension Plan, Registration No.356162 (the “Plan”), to a refund of employercontributions in the amount of $1,351,669.22as at January 16, 2002.


1. Boehringer Ingelheim (Canada) Ltd./Ltée isthe employer as defined in the Plan (the“Employer”).

2. As a result of the delay caused by RoyalTrust to effect the payments from the fundin a timely manner, employer contributionsfor 2000, 2001 and January 2002 were made

to the fund by the employer rather thanfrom the fund as a contribution holiday outof surplus.

3. Evidence of the overpayment to the fund for2000, 2001 and January 2002 has been sub-mitted to the Financial Services Commissionof Ontario.

4. There were no member submissions madeabout the repayment.







Attn: The Registrar

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DATED at Toronto, Ontario, this 2nd day ofJuly, 2002.


cc: Ms. Renate Leis, Buck Consultants Limited

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to a payment out of the AFGIndustries Ltd. Salaried Pension Plan,Registration No. 1070853;

TO: AFG Industries Ltd.1400 Lincoln StreetKingsport TN 37660 U.S.A.

Attention: Steven E. KramerVice President, Human Resources and General Counsel

Applicant and Employer

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(1) of the Act, consenting to the payment outof the AFG Industries Ltd. Salaried Pension Plan,Registration No. 1070853 (the “Plan”), to AFGIndustries Ltd. in the amount of $14,303,441 asat January 10, 2001, plus earnings thereon tothe date of payment.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that all theconsenting members’ and former members’ enti-tlements from the Plan, have been first trans-ferred out and paid to the members or otherwiseprovided for.


1. AFG Industries Ltd. is the employer asdefined in the Plan (the “Employer”).

2. The Plan was partially wound up, effectiveJanuary 10, 2001.

3. As at January 10, 2001, the surplus in thePlan was estimated at $33,718,817.

4. The Plan provides for payment of surplus to the Employer on the partial wind up ofthe Plan.

5. The application discloses that by writtenagreement made by the Employer and onbehalf of the 100% of the consenters, thesurplus in the Plan at the date of payment,after deduction of wind up expenses, is to bedistributed:

a) approximately 42.42% to the Employer;and

b) approximately 42.43% to the beneficia-ries of the Plan as defined in the SurplusDistribution Agreement.

6. The Employer has applied, pursuant to sec-tion 78 of the Act and clause 8(1)(b) of theRegulation, for consent of the Superin-tendent of Financial Services to the paymentof approximately 42.42% of the surplus inthe Plan.

7. The application appears to comply with sec-tion 78 and subsection 79(3)(a) & (b) of theAct and with clause 8(1)(b) and subsections28(5), 28(5.1) and 28(6) of the Regulation.



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Attn: The Registrar


DATED at Toronto, Ontario, this 2nd day ofAugust, 2002.


cc: Geoffrey Gibson, Towers Perrin Inc.Audrey Mak, Fraser Milner CasgrainMark Zigler, Koskie Minsky

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to the payment out of the Dry-Ac Ltd.Executive Pension Plan, Registration No. 987057;

TO: Dry-Ac Ltd.98 Daffodil CrescentAncaster ON L9K 1E2

Attention: Eugene CampbellPresident & Secretary


NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(1) of the Act, consenting to the payment outof the Dry-Ac Ltd. Executive Pension Plan,Registration No. 987057 (the “Plan”), to Dry-AcLtd. in the amount of $92,800 as at February 1,2001, plus earnings there onto the date of payment.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that a pro-vision has been made for the payment of liabili-ties of the pension plan as calculated for pur-poses of termination of the pension plan.


1. Dry-Ac Ltd. is the employer as defined inthe Plan (the “Employer”).

2. The Plan was wound up, effective February1, 2001.

3. As at February 1, 2001, the surplus in thePlan was estimated at $92,800.

4. The Plan provides for payment of surplus tothe Employer on the wind up of the Plan.

5. The application discloses that by writtenagreement made by the Employer, and thesole member (as defined in the application)entitled to payments, the surplus in the Planat the date of payment, is to be distributed100% to the Employer.

6. The Employer has applied, pursuant to sec-tion 78 of the Act and clause 8(1)(b) of theRegulation, for consent of theSuperintendent of Financial Services to thepayment of 100% of the surplus in the Plan.

7. The application appears to comply with section 78 and subsection 79(3)(a) & (b) ofthe Act and with clause 8(1)(b) of theRegulation.




Attn: The Registrar

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1NOTE – PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served, or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served, ordelivered on the seventh day after mailing.

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DATED at Toronto, Ontario, this 14th day ofAugust, 2002.


cc: Jean Robichaud, The Standard LifeAssurance Company

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to a payment out of the Staff PensionPlan for Employees of Furmanite CanadaLtd., Registration No. 428557;

TO: Furmanite Canada Ltd.862 Upper Canada Drive, Unit 9Sarnia ON N7T 7H3

Attention: Mr. Dan StittPresident


NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(1) of the Act, consenting to the payment outof the Staff Pension Plan for Employees ofFurmanite Canada Ltd., Registration No.428557 (the “Plan”), to Furmanite Canada Ltd.in the amount of $88,330 as at September 30,1997, plus investment earnings and otheradjustments thereto, to the date of payment.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that allbenefits, benefit enhancements (including ben-efits and benefit enhancements pursuant to theSurplus Distribution Agreement defined in para-graph 5 below) and any other payments towhich the members, former members, and anyother persons entitled to such payments havebeen paid, purchased, or otherwise provided for.


1. Furmanite Canada Ltd. is the employer asdefined in the Plan (the “Employer”).

2. The Plan was wound up, effective September30, 1997.

3. As at September 30, 1997, the surplus in thePlan was estimated at $159,340.


5. The application discloses that by writtenagreement made by the Employer, and100% of the active members and othermembers (as defined in the application) and100% of the former members and other per-sons entitled to payments, the surplus in thePlan at the date of payment, after deductionof wind up expenses is to be distributed:

a) a minimum of 45% of surplus withoutinterest as at September 30, 1997,equalling $71,010, to a maximum of40% of the final valuation of the surplusprior to distribution will be distributedto the beneficiaries of the Plan asdefined in the Surplus DistributionAgreement; and

b) the balance of the surplus refunded tothe Employer after the members and for-mer members received their share.

6. The Employer has applied, pursuant to sec-tion 78 of the Act, and clause 8(1)(b) of theRegulation, for consent of the Superintendentof Financial Services to the payment of 55%of the surplus in the Plan (after adding invest-ment earnings and deducting the expensesrelated to the wind up of the Plan and adjust-ments for Surplus agreement).

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7. The application appears to comply with sec-tion 78 and subsection 79(3)(a)&(b) of theAct and with clause 8(1)(b) and subsection28(6) of the Regulation.





Attn: The Registrar


DATED at Toronto, Ontario, this 11th day ofSeptember, 2002.


cc: Marian McKillop, Corporate BenefitAnalysts, Inc.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Makean Order under subsection 78(1) of the Act,consenting to a payment out of theContributory Pension Plan for SalariedEmployees of McMaster UniversityIncluding McMaster Divinity College2000, Registration No. 1079920;

TO: McMaster University1280 Main Street WestGilmour Hall — 202Hamilton ON L8S 4K1

Attention: Karen BelaireVice-President Administration


NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s. 78(1) of the Act, consenting to the paymentout of the Contributory Pension Plan forSalaried Employees of McMaster UniversityIncluding McMaster Divinity College 2000,Registration No. 1079920 (the “Plan”), toMcMaster University in the amount of 50 per-cent of the Distributable Surplus as at July 1,2000, as defined in the Surplus SharingAgreement plus investment earnings thereon tothe date of payment. The Distributable Surplusis estimated to be $152,842,041.


1. McMaster University is the employer asdefined in the Plan (the “Employer”).

2. As at July 1, 2000, the surplus in the Planwas estimated at $152,842,041.

3. The Plan provides for payment of surplus tothe Employer while the Plan continues.

4. The application discloses that by writtenagreement made by the Employer and all ofthe active members and other members (asdefined in the application), all of the formermembers and other persons entitled to pay-ments from the fund and all persons inrespect of whom the administrator has pur-chased an annuity or ancillary benefit —other than those persons who requested theadministrator to do so, the distributable sur-plus in the Plan at the date of payment, afterdeduction of expenses is to be distributed:

a) 50% to the Employer; and

b) 50% to the beneficiaries of the Plan asdefined in the Surplus DistributionAgreement.

5. The Employer has applied, pursuant to sec-tion 78 of the Act, and section 10 of theRegulation, for consent of the Superintendentof Financial Services to the payment of 50%of the surplus to be distributed from the Plan(after adding 50% of investment earnings anddeducting 50% of the expenses thereto).

6. The application appears to comply with sec-tion 78 and subsection 79(1) of the Act andwith section 10 and subsections 25(1), 25(2)and 25(4) of the Regulation.


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Financial Services Tribunal14th Floor, 5160 Yonge StreetNorth York ON M2N 6L9Attn: The Registrar




cc: Randy V. Bauslaugh, Blake Cassels &Graydon LLPMichael Mazzuca, Koskie Minsky

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to a payment out of the EatonSuperannuation Plan for DesignatedEmployees, Registration No. 0593673;

TO: Richter and Partners Inc.c/o Fasken Martineau DuMoulin LLP66 Wellington Street WestSuite 4200, Toronto Dominion Bank TowerBox 20, Toronto-Dominion CentreToronto ON M5K 1N6

Attention: Brent K. Duguid

Applicant

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER under s.78(1) of the Act, consenting to the payment outof the Eaton Superannuation Plan for DesignatedEmployees, Registration No. 0593673 (the“Plan”), to Richter and Partners Inc., Liquidatorof Distributionco Inc. in the amount of $354,700as at December 31, 2001, plus investment earn-ings thereon to the date of payment, and adjust-ed for actual expenses incurred in connectionwith this Application.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that thepayment of the members’ negotiated share ofthe surplus has been made.


1. The Applicant is the Liquidator ofDistributionco Inc., who is duly authorizedby The T. Eaton Company Limited (theemployer as defined in the Plan), to receivethe surplus assets.

2. The Plan was wound up, effective September11, 1999.

3. As at December 31, 2002, the surplus in thePlan was estimated at $1,773,700.


5. The application discloses that by writtenagreement made by the Applicant, and100% of the active members and othermembers (as defined in the application) and100% of the former members and other per-sons entitled to payments, the surplus in thePlan at the date of payment, after deductionof wind up expenses is to be distributed:


b) 80% to the beneficiaries of the Plan as defined in the Surplus DistributionAgreement.

6. The Applicant has applied, pursuant to sec-tion 78 of the Act, and clause 8(1)(b) of theRegulation, for consent of the Superintendentof Financial Services to the payment of 20%of the surplus in the Plan as at December 31,2001, plus investment earnings and deduct-ing the expenses related to this application.

7. The application appears to comply with sec-tion 78 and subsection 79(3)(a) and (b) ofthe Act and with clause 8(1)(b) and subsec-tions 28(5), 28(5.1) and 28(6) of theRegulation.


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Attn: The Registrar




cc: Paul Macphail, PricewaterhouseCoopers Inc.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to the payment out of theContributory Pension Plan for SalariedEmployees of McMaster UniversityIncluding McMaster Divinity College2000, Registration No. 1079920;

TO: McMaster University1280 Main Street WestGilmour Hall — 202Hamilton ON L8S 4K1

Attention: Karen BelaireVice-President Administration


AMENDED NOTICE OF PROPOSAL(Amended September 27, 2002)

I PROPOSE TO MAKE AN ORDER under s.78(1) of the Act, consenting to the payment outof the Contributory Pension Plan for SalariedEmployees of McMaster University IncludingMcMaster Divinity College 2000, RegistrationNo. 1079920 (the “Plan”), to McMasterUniversity in the amount of 50 percent of theDistributable Surplus as at July 1, 2000, asdefined in the Surplus Sharing Agreement plusinvestment earnings thereon to the date of pay-ment. The Distributable Surplus is estimated tobe $152,842,041.


1. McMaster University is the employer asdefined in the Plan (the “Employer”).

2. As at July 1, 2000, the surplus in the Planwas estimated at $318,213,000.

3. The Plan provides for payment of surplus tothe Employer while the Plan continues.

4. The application discloses that by writtenagreement made by the Employer, and all ofthe active members and other members (asdefined in the application), all of the formermembers and other persons entitled to pay-ments from the fund, and all persons inrespect of whom the administrator has pur-chased an annuity or ancillary benefit —other than those persons who requested theadministrator to do so, the distributable sur-plus in the Plan at the date of payment, afterdeduction of expenses is to be distributed:


b) 50% to the beneficiaries of the Plan asdefined in the Surplus DistributionAgreement.

5. The Employer has applied, pursuant to sec-tion 78 of the Act, and section 10 of theRegulation, for consent of the Superintendentof Financial Services to the payment of 50%of the excess of the Distributable Surplus overthe expenses in respect of the surplus distrib-ution (as described in the Surplus SharingAgreement) plus 50% of the net investmentearnings on such excess (as described in theSurplus Sharing Agreement).

6. The application appears to comply with sec-tion 78 and subsection 79(1) of the Act andwith section 10 and subsections 25(1), 25(2)and 25(4) of the Regulation.


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Attn: The Registrar



K. David GordonDeputy Superintendent, Pension DivisionBy Delegated Authority

cc: Randy V. Bauslaugh, Blake Cassels &Graydon LLPMichael Mazzuca, Koskie Minsky

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, S.O. 1997,c.28 (the “PBA”);

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69(1) (d) of the PBA relat-ing to the Slater Steel Inc. Pension Planfor Corporate Employees and SalariedEmployees of the Hamilton Specialty BarDivision, Registration Number 308338;

TO: Slater Steel Inc. Hamilton Specialty Bar DivisionP.O. Box 2943, Hamilton Stn LCD 1Hamilton ON L8N 3P9

Employer and Administrator

AND TO: Osler Hoskin & HarcourtBarristers and SolicitorsBox 50, 1 Canadian PlaceToronto ON M5X 1B8

Counsel to the Employer and Administrator

AND TO: Murray GoldKoskie MinskyBarristers and Solicitors20 Queen Street WestSuite 900, Box 52Toronto ON M5H 3R3

Counsel to former employees

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER undersection 69 (1) (d) of the PBA that the Slater SteelInc. Pension Plan for Corporate Employees andSalaried Employees of the Hamilton SpecialtyBar Division, Registration Number 308338 (the“Plan”), be wound up, in part in relation tothose members and former members of the Plan

who ceased to be employed by Slater Steel Inc.(“Slater Steel”) effective from March 13,1998 toJanuary 26, 2000, as a result of the reorganiza-tion of the business of Slater Steel.

REASONS FOR THE ORDER:

1. Slater Steel is the employer and administra-tor of the Plan.

2. There was a reorganization of senior man-agement of Slater Steel in 1998 resulting inthe termination of a number of senior man-agers and the elimination of positions for-merly held by the terminated managers.

3. In 1998, there was a significant changerelating to the restructuring of the seniormanagement of Slater Steel, a centralizedapproach to management and a capitaliza-tion of synergies that exist among core busi-nesses. Specifically, these changes related to the combining of purchasing functions,sales and marketing activities from HamiltonSpeciality Bar Division (HSB), Fort Wayneand Sorel Operations.

4. There was a general cost cutting initiativeundertaken which culminated in multipleterminations in October 1998. Slater Steelvoluntarily declared a partial wind up effec-tive October 31, 2001, in respect of all activemembers of the Plan whose employmentwas involuntarily terminated, who wereoffered early retirement with non-pensionenhancements or who resigned duringOctober 1998.

5. In 1998, there were capital expenditures toreplace aging equipment to improve produc-tivity. There was the completion of a newarc furnace at HSB facility. The furnace wascommissioned on a full time basis inNovember 1997 and was designed to reducecosts, increase production and lower envi-ronmental impacts.

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6. Slater divested itself of the Melburn TruckLines subsidiary in February 1999.

7 Between March 13, 1998 and January 26,2000, a significant number of members ofthe Plan ceased to be employed by SlaterSteel, as a result of the reorganization of thebusiness of Slater Steel within the meaningof clause 69(1)(d) of the PBA.

8. Such further and other reasons as may cometo my attention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to s. 89(6) of the PBA to request ahearing, you must deliver to the Tribunal a writ-ten notice that you require a hearing, withinthirty (30) days after this Notice of Proposal isserved on you.1

Your written notice must be delivered to:



For further information, contact the registrar ofthe Tribunal by phone at 416-226-7752, toll freeat 1-800-668-0128, ext. 7752, or by fax at 416-226-7750.

IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAY MAKETHE ORDER PROPOSED IN THIS NOTICE.

THE ADMINISTRATOR IS REQUIRED pur-suant to subsection 89(5) of the Act to transmita copy of this Notice of Proposal to the follow-ing persons: all members and former membersof the Plan who were employed by Slater Steeland who ceased to be employed by Slater Steeleffective between March 13, 1998 and January26, 2000.


K. David GordonDeputy Superintendent, Pension Division By Delegated Authority

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1NOTE — PURSUANT TO section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the date of mailing.

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, consent-ing to a payment out of the Pension Plan forEmployees of The Wool Bureau of CanadaLimited, Registration No. 0314187;

TO: Woolmark Americas, Ltd.7 Purdue RoadEdison, New JerseyUSA 08820

Attention: John McGowan President

Applicant, Employer and Administrator of the Plan

NOTICE OF PROPOSAL

I PROPOSE TO MAKE AN ORDER undersubsection 78(1) of the Act, consenting to pay-ment out of the Pension Plan for Employees ofThe Wool Bureau of Canada Limited,Registration No. 0314187 (the “Plan”), toWoolmark Americas, Ltd., of the Net CompanySurplus. Net Company Surplus means 50% ofthe Surplus less the reasonable legal fees, dis-bursements and taxes charged to the Applicantafter January 1, 1999, in respect of the wind upof the Plan and the distribution of Surplus.Surplus means the surplus in the Plan, plusinvestment earnings thereon, after deductingactuarial expenses in connection with the windup of the Plan including the distribution of sur-plus, but prior to deducting the reasonable legalfees, disbursements and taxes charged to theApplicant after January 1, 1999, in respect ofthe wind up of the Plan and the distribution ofSurplus and the reasonable legal fees, disburse-

ments and taxes charged for services to themembers after January 1, 2000, in respect of thedistribution of Surplus.

I PROPOSE TO MAKE THE ORDER effectiveonly after the Applicant satisfies me that thepayment of the members’ share of the negotiat-ed surplus has been made.

REASONS FOR THE ORDER:

1. The Applicant is the employer named in thePlan.

2. The Plan was wound up, effective December31, 1998.

3. The Employer has applied, pursuant to sec-tion 78 of the Act and clause 8(1)(b) ofRegulation 909 made under the Act, for consent of the Superintendent of FinancialServices to the payment of part of the sur-plus in the Plan on wind up.

4. As of December 31, 1998, the surplus in thePlan was estimated at approximately$2,157,892.

5. The Applicant and the members and formermembers of the Plan entered into a SurplusDistribution Agreement and Release dated asof March 28, 2001, wherein it was agreedthat the Applicant would receive the NetCompany Surplus as defined therein. NetCompany Surplus is defined as 50% of theSurplus less the reasonable legal fees, dis-bursements and taxes charged to theApplicant after January 1, 1999, in respect ofthe wind up of the Plan and the distributionof Surplus. Surplus was defined in thatagreement as the sum of the amountremaining in the Plan, plus investmentearnings thereon, after deducting actuarialexpenses in connection with the wind up ofthe Plan including the distribution of sur-plus, but prior to deducting the reasonablelegal fees, disbursements and taxes charged

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to the Applicant after January 1, 1999, inrespect of the wind up of the Plan and thedistribution of Surplus and the reasonablelegal fees, disbursements and taxes chargedfor services to the Members after January 1,2000, in respect of the distribution ofSurplus. The Applicant has estimated thatthe amount to be refunded to the Applicant,as at December 31, 2000, and before thededuction of the Applicant’s legal fees anddisbursements and taxes is $1,138,320.54.

6. The Plan, which was established as of July 1,1975, as the Pension Plan for the Employeesof the Wool Bureau of Canada Limited(1975), provides for the payment of surplusto the Employer on the wind up of the Plan.

7. The application discloses that the name ofthe Plan was changed to the Pension Plan for the Employees of the Wool Bureau ofCanada Limited effective January 1, 1988and that the name of the Applicant waschanged from The Wool Bureau of CanadaLimited to Woolmark Americas, Ltd. in 1998.

8. The application appears to comply with sec-tion 78 and subsections 79(3)(a) and (b) ofthe Act and with clause 8(1)(b) and subsec-tions 28(5), 28(5.1) and 28(6) of theRegulation.

9. Such further and other reasons as may cometo my attention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to s. 89(6) of the Act. To request ahearing, you must deliver to the Tribunal a writ-ten notice that you require a hearing, withinthirty (30) days after this Notice of Proposal isserved on you.1




For further information, contact the registrar ofthe Tribunal by phone at 416-226-7752, toll freeat 1-800-668-0128, ext. 7752, or by fax at 416-226-7750.

IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAY MAKETHE ORDER PROPOSED IN THIS NOTICE.

DATED at North York, Ontario, this 8th day ofOctober, 2002.

K. David GordonDeputy Superintendent, Pension Division Financial Services Commission of Ontario

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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the date of mailing.

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “Act”);

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make aDeclaration under section 83 of the Act relatingto the Retirement Plan for Employees of Pigott Construction Limited andParticipating Companies, RegistrationNumber C-4989;

TO: Buck Consultants LimitedP.O. Box 15Suite 150095 Wellington Street WestToronto ON M5J 2N7

Attention: Ms. Wafaa Babcock, F.S.A., F.C.I.A.

Administrator

Pigott Construction Ltd.P.O. Box 2309Hamilton ON L8N 3G7

Attention: W. Grant DickinsonVice-President, Finance

Employer

NOTICE OF PROPOSAL TO MAKE A DECLARATION

WHEREAS:

1. The Retirement Plan for Employees of PigottConstruction Limited and ParticipatingCompanies (the “Plan”), is registered underthe Act as Registration Number C-4989; and

2. The Plan provides defined benefits that arenot exempt from the application of thePension Benefits Guarantee Fund (the“Guarantee Fund”), by the Act or the regula-tions made thereunder; and

3. The Plan was wound up by the employereffective December 31, 1991; and

4. A wind up report was filed by the employerand the Superintendent of Pensionsapproved the wind up report on September17, 1992; and

5. All benefits and surplus assets were paid outof the plan in 1992 with no assets remain-ing in the Plan; and

6. In the year 2000, a deferred vested memberof the Plan, Colin Holland, claimed he wasomitted in error from the disbursement ofbenefits on wind up and provided evidencethat he was entitled to a benefit upon windup; and

7. Buck Consultants was appointed administra-tor of the Plan by the Superintendent ofFinancial Services on July 6, 2000.

NOW THEREFORE TAKE NOTICE I PRO-POSE TO CONSIDER MAKING A DECLA-RATION in respect of the Plan, under section83 of the Act, that the Guarantee Fund appliesto the Plan for the following reasons:

REASONS FOR THE PROPOSED DECLARATION:

1. Colin Holland was entitled to a benefit fromthe Plan upon wind up but never receivedit; and

2. A supplementary wind up report for thePlan as at April 30, 2002, reveals that to pro-vide the benefit for Colin Holland and tomeet the expenses and other allowancesincurred in determining and distributing hisentitlement, would require an amount of$18,040 as at April 30, 2002; and

3. There are currently no assets in the Plan toprovide the benefit entitlement of ColinHolland and other expenses; and

Notices of Proposal to Make a Declaration

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4. There are reasonable and probable groundsfor concluding that the funding require-ments of the Act and regulation cannot besatisfied; and




Financial Services Tribunal5160 Yonge Street14th FloorNorth York ON M2N 6L9

Attention : The Registrar

IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OF PROPOSAL IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE DECLARA-TION PROPOSED HEREIN.

DATED at North York, Ontario, this 12th day ofJuly, 2002.

K. David GordonDeputy Superintendent, Pensions Financial Services Commission of Ontario

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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any documents sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the day of mailing.

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c.28;

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c. 28,respecting the Gallaher Thorold Paper Co.Hourly Paid Pension Plan, RegistrationNumber 1039981;

TO: Morneau Sobeco 895 Don Mills RoadOne Morneau Sobeco CentreSuite 700Toronto ON M3C 3W3

Attention: Mr. David R. Kearney

Administrator

Gallaher Thorold Paper Co.67 Front Street North Thorold ON L2V 3Z7

Attention: Mr. David Rennie, Vice President, Human Resources

Employer

Ernst & Young Inc.Ernst & Young TowerP.O. Box 251, 222 Bay StreetToronto-Dominion CentreToronto ON M5K 1J7

Attention: Mr. Philip Kan, Manager

Trustee in Bankruptcy for Gallaher Thorold Paper Co.


WHEREAS:

1. The Gallaher Thorold Paper Co. Hourly PaidPension Plan, Registration Number 1039981(the “Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commissionof Ontario Act, 1997, S.O. 1997, c.28 (the“Act”); and

2. The Pension Plan provides defined benefitsthat are not exempt from the application ofthe Pension Benefits Guarantee Fund (the“Guarantee Fund”), by the Act or the regula-tions made thereunder; and

3. On July 15, 2002, the Superintendent ofFinancial Services issued an Order dated July12, 2002, that the Plan be wound up effec-tive May 25, 1999; and

4. The Superintendent of the Financial ServicesCommission appointed Morneau Sobeco asthe administrator (the “Administrator”) ofthe Plan on July 10, 2002.

NOW THEREFORE TAKE NOTICE that Ipropose to consider to make a declaration, pur-suant to section 83 of the Act, that theGuarantee Fund applies to the Plan for the fol-lowing reasons:

1. The funded ratio of the Plan at wind up hasbeen estimated to be 73.60%.

2. The employer, Gallaher Thorold Paper Co.,was assigned into bankruptcy on June 15,1999.

3. The trustee in bankruptcy for GallaherThorold Paper Co. has advised theAdministrator that there are no funds avail-able from the estate of Gallaher ThoroldPaper Co. to make payment to the Plan.

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4. The Administrator advised that it is of theopinion that there are reasonable and prob-able grounds for concluding that the fund-ing requirements of the Act and regulationcannot be satisfied.



Financial Services Tribunal5160 Yonge Street14th FloorNorth York Ontario M2N 6L9



DATED at North York, Ontario, this 2nd day ofOctober, 2002.


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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the day of mailing.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28,respecting the Pension Plan for Employeesof Vulcan Packaging Inc. (the “PensionPlan”), Registration Number 0364323;

TO: Morneau Sobeco 1500 Don Mills Road Suite 500Toronto ON M3B 3K4

Attention: Mr. Al KielPartner

Administrator of the Pension Plan for Employees of Vulcan Packaging Inc.

AND TO: Vulcan Packaging Inc.15 Bethridge Road Rexdale ON M9W 1M6

Attention: Mr. Alex TelferPresident

Employer

AND TO: Ernst & Young Inc.175 Commerce Valley Drive WestSuite 600Thornhill ON L3T 7P6

Attention: Mr. Harold Reiter

Trustee in Bankruptcy, Vulcan Packaging Inc.


WHEREAS:

1. The Pension Plan for Employees of VulcanPackaging Inc., Registration No. 0364323(the “Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commissionof Ontario Act, 1997, c.28 (the “Act”); and

2. The Pension Plan provides defined benefitsthat are not exempt from the application of the Pension Benefits Guarantee Fund (the “Guarantee Fund”), by the Act or theregulations made thereunder; and

3. The Pension Plan was wound up effectiveMay 15, 1997; and

4. The Superintendent of Pensions initiallyappointed Deloitte & Touche Inc. as theadministrator (the “Administrator”) of thePension Plan on August 1, 1997 and on July11, 2002, appointed Morneau Sobeco asAdministrator to replace Deloitte & Touche;and

NOW THEREFORE TAKE NOTICE I proposeto consider to make a declaration, pursuant tosection 83 of the Act, that the Guarantee Fundapplies to the Pension Plan for the followingreasons:

1. The Supplement to the Actuarial ValuationReport filed by the Administrator indicatesan estimated funding deficiency of$1,252,900 as at May 31, 2002 and an esti-mated claim against the Guarantee Fund asat May 31, 2002 of $1,223,400.

2. Ernst & Young Inc. was appointed Trustee inBankruptcy of Vulcan Packaging Inc. onMay 15, 1997.

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3. The Trustee in Bankruptcy for VulcanPackaging Inc. has advised the Administratorthat there are no funds available from theestate of Vulcan Packaging Inc. to make pay-ment to the Pension Plan.

4. The Administrator has advised that there arereasonable and probable grounds for consid-ering that the funding requirements of theAct and Regulation cannot be satisfied.






DATED at North York, Ontario, this 3rd day ofOctober, 2002.


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1NOTE — PURSUANT to section 112 of the Act, any Notice, Order or other document is sufficiently given, served or delivered personally or sent by first class mail and any documents sent by first class mail shall be deemed to be given, served or delivered onthe seventh day after the day of mailing.

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Ontario

IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “PBA”);

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PBA,respecting The Algoma Steel Inc. SalariedEmployees Pension Plan for Employees inCanada, Registration Number 0335810;

TO: Morneau Sobeco895 Don Mills RoadSuite 700One Morneau Sobeco CentreToronto ON M3C 1W3


Administrator

AND TO: Algoma Steel Inc.105 West StreetSault Ste. Marie ON P6A 7B4

Attention: Mr. Paul C. FinleyGeneral Counsel and Corporate Secretary

Employer

AND TO: The United Steelworkers of Americac/o Days Inn, 320 Bay Street, Room 15Sault Ste. Marie ON P6A 1X1

Attention: Mr. Ian KersleyPresident

Local Union 2724


WHEREAS:

1. The Algoma Steel Inc. Salaried EmployeesPension Plan for Employees in Canada,Registration No. 0335810 (the “PensionPlan”), is registered under the PBA;

2. The Pension Plan provides defined benefitsthat are not exempt from the application of the Pension Benefits Guarantee Fund (the “Guarantee Fund”), by the PBA or theregulations made thereunder;

3. Algoma Steel Inc. (“Algoma”) instituted pro-ceedings under the Companies’ CreditorsArrangement Act, and its Plan ofReorganization was approved by its creditorsand sanctioned by the court on December19, 2001;

4. The Pension Plan was terminated effectiveSeptember 17, 2001, by Algoma Steel Inc. (inaccordance with section 68 of the PBA; and

5. The Superintendent of Financial Servicesappointed Morneau & Sobeco as administra-tor (the “Administrator”) of the PensionPlan on September 6, 2002.

NOW THEREFORE TAKE NOTICE that Ipropose to make a declaration, pursuant to sec-tion 83 of the PBA, that the Guarantee Fundapplies to the Pension Plan for the followingreasons:

1. The Report on the Plan Wind-up andPension Benefits Guarantee Fund Applicationas at September 17, 2001, indicates an esti-mated funding deficiency of $79,977,000 andan estimated funded ratio of 75.68%.

2. The Superintendent of Financial Servicesand Algoma entered into an agreementdated January 29, 2002, which specificallyrequires Algoma to file the application for a

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declaration that the Guarantee Fund appliesto the Pension Plan.

3. The Superintendent of Financial Services issatisfied that Algoma could not meet thefunding requirements of the PBA for thePlan, as of the effective date of the wind upof the Plan.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to section 89(6) of the PBA, if, withinthirty (30) days after this Notice of Proposal isserved on you, you deliver to the Tribunal awritten notice that you require a hearing.1




For further information, contact the Registrar ofthe Tribunal by telephone at 416-226-7152, tollfree at 1-800-668-0128 ext 7752, or by fax at416-226-7750.

IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OF PROPOSAL IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE DECLARA-TION PROPOSED IN THIS NOTICE.



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1NOTE — PURSUANT TO section 112 of the PBA, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the day of mailing.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make a Declaration under Section 83 of the PBA,respecting the Non-Contributory PensionPlan Covering Hourly Paid BargainingUnit Employees of Algoma Steel Inc.,Registration Number 0335802;

TO: Morneau Sobeco 895 Don Mills RoadSuite 700 One Morneau Sobeco CentreToronto ON M3C 1W3


Administrator

AND TO: Algoma Steel Inc.105 West StreetSault Ste. Marie ON P6A 7B4

Attention: Mr. Paul C. FinleyGeneral Counsel and Corporate Secretary

Employer

AND TO: The United Steelworkers of America68 Dennis Street Sault Ste. Marie ON P6A 2W9

Attention: Mr. Tom BonellPresident, Local Union 2251

Union


WHEREAS:

1. The Non-Contributory Pension PlanCovering Hourly Paid Bargaining UnitEmployees of Algoma Steel Inc. RegistrationNo. 0335802 (the “Pension Plan”), is regis-tered under the PBA;

2. The Pension Plan provides defined benefitsthat are not exempt from the application ofthe Pension Benefits Guarantee Fund (the“Guarantee Fund”), by the PBA or the regu-lations made thereunder;

3. Algoma Steel Inc. (“Algoma”) instituted proceedings under the Companies’ CreditorsArrangement Act, and its Plan of Reorgan-ization was approved by its creditors andsanctioned by the court on December 19,2001;

4. The Pension Plan was terminated effectiveSeptember 17, 2001, by Algoma in accor-dance with section 68 of the PBA; and

5. The Superintendent of Financial Servicesappointed Morneau Sobeco as administrator(the “Administrator”) of the Pension Planon September 6, 2002.

NOW THEREFORE TAKE NOTICE that Ipropose to make a declaration, pursuant to sec-tion 83 of the PBA, that the Guarantee Fundapplies to the Pension Plan, for the followingreasons:

1. The Report on the Plan Wind-up andPension Benefits Guarantee FundApplication as at September 17, 2001, indi-cates that the Pension Plan has an estimatedfunding deficiency of $361,983,300 and anestimated funded ratio of 52.94%.

2. The Superintendent of Financial Servicesand Algoma entered into an agreement

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dated January 29, 2002, which specificallyrequires Algoma to file the application for adeclaration that the Guarantee Fund appliesto the Pension Plan.

3. The Superintendent of Financial Services issatisfied that Algoma could not meet thefunding requirements of the PBA for thePlan, as of the effective date of the wind upof the Plan.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to section 89(6) of the PBA, if, withinthirty (30) days after this Notice of Proposal isserved on you, you deliver to the Tribunal awritten notice that you require a hearing.1




For further information, contact the Registrar ofthe Tribunal by phone at 416-226-7152, toll freeat 1-800-668-0128, ext. 7752, or by fax at 416-226-7750.

IF YOU DO NOT DELIVER TO THE TRIBUNAL, WITHIN THIRTY (30) DAYSFROM THE DATE THIS NOTICE OF PROPOSAL IS SERVED ON YOU, A WRITTEN NOTICE THAT YOU REQUIRE A HEARING, I MAY MAKE THE DECLARA-TION PROPOSED IN THIS NOTICE.



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1NOTE — PURSUANT to section 112 of the PBA, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the day of mailing.

UT INCEPIT

FIDELIS

SIC PERMANET

Ontario

IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8 as amended (the “PBA”);

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Refuseto Make an Order under section 87(1) of thePBA, respecting the Public Service PensionPlan, Registration No. 0208777;

TO: Gillis Zago Barristers LLP200 Main Street NorthBrampton ON L6V 1P1

Attn: Mr. Stewart C.E. Gillis

Solicitors for Mr. George Polygenis (the “Applicant”)

AND TO: Ontario Pension Board1 Adelaide Street East, Suite 1100Toronto ON M5C 2X6

Attn: Mr. Ignas Nastajus, SecretaryAdjudication & Policy Committees

Administrator

NOTICE OF PROPOSAL

I PROPOSE TO REFUSE TO MAKE ANORDER under section 87(1) of the PBA that thePension Policy Committee of the OntarioPension Board reconsider its decision denying adisability pension to the Applicant under sec-tion 14(1) of the Public Service Pension Plan,Registration No. 0208777 (the “Plan”);

REASONS FOR THE REFUSAL:

1. The Applicant’s employment as an LCBObranch manager ended in March 1997.

2. The Applicant applied for a disability pen-sion under section 14(1) of the Plan. Section14(1) of the Plan gives the Board the duty todetermine whether an applicant is entitledto a disability pension. A Plan member withsufficient credit or continuous membershipin the Plan is entitled to a disability pensionif the Board finds the member to be “totally

and permanently disabled” as defined insection 1 of the Plan:

“totally and permanently disabled” means,in relation to an individual, suffering from aphysical or mental impairment that pre-vents the individual from engaging in anyemployment for which the individual is rea-sonably suited by virtue of his or her educa-tion, training or experience and that canreasonably be expected to last for theremainder of the individual’s lifetime.

3. Section 31(3) of the Plan authorizes theBoard to make rules and procedures and todelegate its duties and responsibilities to acommittee or other person.

4. The Board has established DisabilityProcedures and Adjudication Procedures set-ting out the rules and procedures whichapply when a member applies for a disabilitypension.

5. The Adjudication Procedures provide a for-mal adjudication process in order to, interalia, determine eligibility for disability bene-fits. The Adjudication Committee of theBoard (the “Adjudication Committee”) adju-dicates the member’s claim. The member hasa right to appeal the decision to the PensionPolicy Committee (the “Committee”). Article7.5.7 of the Adjudication Procedures states,“The decision of the Pension PolicyCommittee shall be final.”

6. The Adjudication Committee of the OntarioPension Board (the “Board”) rejected theApplicant’s claim in November 2000, findingthat he was not “totally and permanentlydisabled” as defined in section 1 of the Plan.

7. The Applicant appealed that decision to thePension Policy Committee and submittedadditional medical information in March2001. The Committee met in May 2001 and

Notices of Proposal to Refuse to Make an Order

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decided to request additional information inthe form of an independent medical exami-nation arranged by the Board’s medical con-sultants. The Committee is authorized torequest further information by article 7.5.4of the Adjudication Procedures.

8. The Board’s medical consultants receivedthe findings of the independent medicalexaminer and issued their own summaryreport to the Committee.

9. On November 20, 2001, the Committee metand rejected the applicant’s claim with writ-ten reasons, referred to in paragraphs 12 and13 below.

10. On June 27, 2002, the Applicant requestedthe Superintendent of Financial Services(the “Superintendent”) to issue an Orderoverturning the Committee’s decision andeither substituting a finding of disability ordirecting a reconsideration of the case.

11. The Superintendent can make an Orderunder section 87(1) of the PBA if he is of theopinion, on reasonable and probablegrounds, that a pension plan is not beingadministered in accordance with the PBA,the regulations or the pension plan.

12. A “disability pension” is an ancillary benefitunder s. 40 of the PBA. Section 10(1)5 of thePBA requires that the documents that createand support a pension plan set out the“requirements for entitlement under thepension plan to any pension benefit orancillary benefit.” Section 19(1) of the PBAstates, “The administrator of a pension planshall ensure that the pension plan and the

pension fund are administered in accor-dance with this Act and the regulations.”

13. The Committee’s decision states that theCommittee decided to uphold theAdjudication Committee’s denial of theApplicant’s disability pension application“after a careful review of the [Applicant]’scase file and the medical findings.” TheCommittee found that the Applicant wasnot “totally and permanently disabled” asdefined in section 1 of the Plan.

14. The Committee made its decision in accor-dance with the applicable rules and proce-dures established by the Board under thePlan for the consideration of disability pen-sion applications and in accordance withthe definition of “totally and permanentlydisabled” under the Plan.

15. For the reasons set out above, theSuperintendent is not of the opinion, onreasonable and probable grounds, that thePlan is not being administered in accor-dance with the PBA, the regulations or the Plan.

16. Such and further reasons as may come tomy attention.

YOU ARE ENTITLED TO A HEARING bythe Financial Services Tribunal (the “Tribunal”),pursuant to section 89(6) of the PBA. To requesta hearing, you must deliver to the Tribunal awritten notice that you require a hearing, with-in thirty (30) days after this Notice of Proposalis served on you.1

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1NOTE — PURSUANT to section 112 of the PBA, any Notice, Order or other document is sufficiently given, served or delivered ifdelivered personally or sent by first class mail and any document sent by first class mail shall be deemed to be given, served ordelivered on the seventh day after the date of mailing.

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Financial Services Tribunal5160 Yonge Street14th FloorNorth York, OntarioM2N 6L9


FOR FURTHER INFORMATION, contact the Registrar of the Tribunal by phone at 416-226-7752, toll free at 1-800-668-0128, ext. 7752, or by fax at 416-226-7750.

IF YOU FAIL TO REQUEST A HEARINGWITHIN THIRTY (30) DAYS, I MAYREFUSE TO MAKE THE REQUESTEDORDER AS PROPOSED IN THIS NOTICE.

DATED at North York, Ontario, October 11, 2002.


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Orders that Pension Plans Be Wound Up

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the PBA, relating tothe Pension Plan for Unionized Employeesof Northern Globe Building Materials(Thorold Division), Registration Number680405 (formerly C-104311) (the “Plan”);

TO: Arthur Andersen Inc.4 King Street WestSuite 1050Toronto ON M5H 1B6


Administrator

AND TO: Striker Paper Canada, Inc.100 Ormond Street SouthP.O. Box 10 Thorold ON L2V 3Y7

Attention: Ms. Patricia Gough, Manager

Employer

ORDER

ON April 29, 2002, the Deputy Superintendent,Pensions, of the Financial Services Commission of Ontario issued a Notice of Proposal to Make an Order dated April 25, 2002, to the Employerand to the Administrator of the Pension Plan for Unionized Employees of Northern GlobeBuilding Materials (Thorold Division), Registra-tion No. 680405 (the “Plan”), pursuant to section69(1) of the Act, that the Plan be wound up inwhole for those members of the Plan who ceasedto be employed effective between November 30,1998 and February 22, 1999.

NO REQUEST for a hearing has been receivedby the Financial Services Tribunal in connectionwith this matter.

I THEREFORE ORDER that Plan be woundup in whole for those members of the Plan whoceased to be employed effective betweenNovember 30, 1998 and February 22, 1999.

REASONS:

1. There was a cessation or suspension ofemployer contributions to the pension fund,pursuant to clause 69(1)(a) of the PBA.

2. A significant number of members of thepension plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer, pursuant to clause69(1)(d) of the PBA.

3. All or a significant portion of the businesscarried on by the employer at a specific loca-tion was discontinued, pursuant to clause69(1)(e) of the PBA.

THE ADMINISTRATOR IS REQUIRED, pur-suant to section 89(5) of the PBA, to transmit acopy of this Order to the following persons:

Communications Energy and Paper Workers Union of Canada5890 Aspen CourtNiagara Falls ON L2G 7V3

Attention: Mr. Michael Lambert, National Representative

Union

BDO Dunwoody LimitedRoyal Bank PlazaP.O. Box 33Toronto ON M5J 2J9

Attention: Mr. Mark ChowReceiver and Trustee in Bankruptcy for Striker Paper Canada, Inc.

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DATED at North York, Ontario, June 20, 2002.

Tom GolfettoDirector, Pension Plans Branch By Delegated Authority from Superintendent of Financial Services

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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder under section 69 of the Act, relating tothe Gallaher Thorold Paper Co. HourlyPaid Pension Plan, Registration Number1039981(the “Plan”);

TO: Morneau Sobeco1500 Don Mills RoadSuite 500 Toronto ON M3B 3K4


Administrator

AND TO: Gallaher Thorold Paper Co. 67 Front Street NorthThorold ON L2V 3Z7

Attention: Mr. David Rennie, Vice-President, Human Resources

Employer

ORDER

ON or about March 26, 2002, the DeputySuperintendent, Pensions, issued a Notice ofProposal to Make an Order dated March 26,2002, to the Employer and to the Administratorof the Gallaher Thorold Paper Co. Hourly PaidPension Plan, Registration Number 1039981(the “Plan”), pursuant to section 69(1) of theAct, that the Plan be wound up in whole effec-tive May 25, 1999.

NO REQUEST for a hearing has been receivedby the Financial Services Tribunal in connectionwith this matter.

I THEREFORE ORDER that the Plan bewound up in whole effective May 25, 1999.

REASONS:

1. There was a cessation or suspension ofEmployer contributions to the pensionfund, pursuant to clause 69(1)(a) of the Act.

2. The Employer failed to make contributionsto the pension fund as required by the Actor the regulations, pursuant to clause69(1)(b) of the Act.

3. A significant number of members of thepension plan ceased to be employed by theEmployer as a result of the discontinuanceof all or part of the business of the Employeror as a result of the reorganization of thebusiness of the Employer, pursuant to clause69(1)(d) of the Act.

4. All or a significant portion of the businesscarried on by the Employer at a specificlocation was discontinued, pursuant toclause 69(1)(e) of the Act.


Tom GolfettoDirector, Pension Plans Branch By Delegated Authority from Superintendent of Financial Services

cc: CommunicationsEnergy and Paper Workers Union of CanadaLocals 290 and 15215890 Aspen CourtNiagara Falls ON L2G 7V3

Attention: Michael Lambert

International Union of Operating EngineersLocal 772370 Main Street East, Suite 302Hamilton ON L8N 1J6

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Attention: Mr. Greg Hoath

Ernst & Young Inc.Ernst & Young TowerP.O. Box 251, 222 Bay StreetToronto-Dominion CentreToronto ON M5K 1J7

Attention: Mr. Philip Kan

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended (the “Act”) ;

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make an Order, pursuant to section 69 of the Act,respecting the Pension Plan for Executivesof William H. Kaufman Inc., RegistrationNo. 999631 (the “Plan”);

TO: The Standard Life Assurance Company 1245 Sherbrooke Street WestMontreal PQ H3G 1G3


Administrator

AND TO: William H. Kaufman Inc. Kitchener Stn. C,410 King St. WestP.O. Box 9005Kitchener ON N2G 4J8

Attention: Stuart SnyderSecretary Treasurer

Employer

REVISED ORDER

ON the 17th day of August, 2001, theSuperintendent of Financial Services issued toWilliam H. Kaufman Inc. (the “Employer”) andto Standard Life Assurance Company, theadministrator of the Plan (the “Administrator”),pursuant to section 69(1) of the Act, a Notice ofProposal to Make an Order that the Plan bewholly wound up effective July 21, 2000.

NO REQUEST for a hearing from the Employeror from the Administrator has been received bythe Financial Services Tribunal in connectionwith this matter.

IT IS THEREFORE ORDERED that thePension Plan for Executives of William H.Kaufman Inc., Registration No. 999631, bewholly wound up effective July 21, 2000.

THE REASONS for this order are:

1. There was a cessation or suspension ofEmployer contributions to the pensionfund, within the meaning of clause 69(1)(a)of the Act.

2. The Employer failed to make contributionsto the pension fund as required by the Actor the regulations within the meaning ofclause 69(1)(b) of the Act.

3. The Employer is bankrupt within the mean-ing of the Bankruptcy and Insolvency Act(Canada), R. S. C. 1985, c. B-3, as amended,pursuant to clause 69(1)(c) of the Act.

4. A significant number of members of thePlan ceased to be employed by the Employeras a result of the discontinuance of all orpart of the business of the Employer or as aresult of the reorganization of the businessof the Employer within the meaning ofclause 69(1)(d) of the Act.

5. All or a significant portion of the businesscarried on by the Employer at a specificlocation was discontinued within the mean-ing of clause 69(1)(e) of the Act.

THE ADMINISTRATOR IS REQUIRED, pur-suant to section 69(2) of the Act, to give noticeof this Order to the following persons:

Ernst & Young Inc. Toronto-Dominion Centre222 Bay StreetP.O. Box 251Toronto ON M5K 1J7

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Attention: Philip Kan

Interim Receiver and Receiver and Trustee in Bankruptcy for William H. Kaufman Inc.

DATED at North York, Ontario, this 14th day ofNovember, 2001.

Revised Order signed at North York, Ontario,this 7th day of August, 2002.

Tom GolfettoDirector, Pension Plans Branch By Delegated Authority from Superintendent of Financial ServicesFinancial Services Commission of Ontario

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended;

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make an Order, pursuant to section 69 of the PensionBenefits Act, R.S.O. 1990, c. P.8, as amended,respecting the Pension Plan for theEmployees of Kaufman Footwear, Divisionof William H. Kaufman Inc., RegistrationNo. 0340349 (the “Pension Plan”);



Administrator

AND TO: Kaufman Footwear, Division of William H. Kaufman Inc.P.O. Box 9005410 King Street WestKitchener ON N2G 4J8

Attention: S.I. SnyderVice President, Finance

Employer



Receiver and Trustee in Bankruptcy for William H. Kaufman Inc.

ORDER

ON the 27th day of June, 2002, the DeputySuperintendent, Pension Division, issued a Noticeof Proposal to Make an Order dated the 25th dayof June, 2002, pursuant to subsection 69(1) of the Pension Benefits Act, R.S.O. 1990, c. P.8, asamended (the “Act”), to the Administrator and tothe Employer to wind up in whole the PensionPlan for the Employees of Kaufman Footwear,Division of William H. Kaufman Inc., RegistrationNo. 0340349.

NO Notice requiring a hearing was delivered tothe Financial Services Tribunal (the “Tribunal”),by the Administrator and/or the Employer with-in the time prescribed by subsection 89(6) ofthe Act.

IT IS THEREFORE HEREBY ORDERED thatthe Pension Plan for the Employees of KaufmanFootwear, Division of William H. Kaufman Inc.,Registration No. 0340349, be wound up in whole,effective July 21, 2000, for the following reasons:

1. There was a cessation or suspension ofEmployer contributions to the pensionfund.

2. A significant number of the members of thePension Plan ceased to be employed by theEmployer as a result of the discontinuanceof all or part of the business of the Employeror as a result the reorganization of the busi-ness of the Employer.

3. The Employer is bankrupt within the mean-ing of the Bankruptcy Act (Canada).

4. A significant number of members of thePension Plan cease to be employed by theEmployer as a result of the discontinuanceof all or part of the business of the Employeror as a result of the reorganization of thebusiness of the Employer.

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5. All or a significant portion of the businesscarried on by the Employer at a specificlocation is discontinued.


Tom Golfetto Director, Pension Plans BranchBy Delegated Authority from theSuperintendent of Financial Services

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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended;

AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make anOrder, pursuant to section 69 of the PensionBenefits Act, R.S.O. 1990, c. P.8, as amended,respecting the Pension Plan for theEmployees of Kaufman of Collingwood,The Furniture Division of William H.Kaufman Inc., Registration No. 0340091(the “Pension Plan”);



Administrator

AND TO: Kaufman of Collingwood, The Furniture Division of William H. Kaufman Inc.201 Balsam Street Collingwood ON L9Y 3Y7

Attention: Barry KnoxController

Employer



Receiver and Trustee in Bankruptcy for William H. Kaufman Inc.

ORDER

ON the 27th day of June, 2002, the DeputySuperintendent, Pension Division, issued a Noticeof Proposal to Make an Order dated the 25th dayof June, 2002, pursuant to subsection 69(1) of thePension Benefits Act, R.S.O. 1990, c. P.8, as amend-ed (the “Act”), to the Administrator and to theEmployer to wind up in whole the Pension Planfor the Employees of Kaufman of Collingwood,The Furniture Division of William H. KaufmanInc., Registration No. 0340091.

NO Notice requiring a hearing was delivered tothe Financial Services Tribunal (the “Tribunal”),by the Administrator and/or the Employer with-in the time prescribed by subsection 89(6) ofthe Act.

IT IS THEREFORE HEREBY ORDEREDthat the Pension Plan for the Employees ofKaufman of Collingwood, The FurnitureDivision of William H. Kaufman Inc.,Registration No. 0340091, be wound up inwhole, effective July 14, 2000, for the follow-ing reasons:

1. There was a cessation or suspension ofEmployer contributions to the pensionfund.

2. A significant number of the members of thePension Plan ceased to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result the reorganization of the busi-ness of the employer.

3. The Employer is bankrupt within the mean-ing of the Bankruptcy Act (Canada).

4. A significant number of members of thePension Plan cease to be employed by theEmployer as a result of the discontinuanceof all or part of the business of the Employeror as a result of the reorganization of thebusiness of the Employer.

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5. All or a significant portion of the businesscarried on by the Employer at a specificlocation is discontinued.

6. All or part of the Employer’s business or allor part of the assets of the Employer’s busi-ness are sold, assigned or otherwise disposedof and the person who acquires the businessor assets does not provide a pension plan forthe members of the Employer’s pensionplan who becomes employees of the person.


Tom Golfetto Director, Pension Plans Branchby Delegated Authority from theSuperintendent of Financial Services

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Consents to Payments out of Wound Up Pension Plans

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(1) of the Act, con-senting to a payment out of the Pension Planfor Salaried Employees of Newman SteelLtd. and its Associated Companies,Registration No. 283481;

TO: PricewaterhouseCoopers Inc.c/o Blake, Cassels & Graydon LLPBox 25, Commerce Court West199 Bay StreetToronto ON M5L 1A9

Attention: Elizabeth BoydCounsel to Pricewaterhouse-Coopers Inc.Reesha HoseinCounsel to PricewaterhouseCoopers Inc.

Applicant and receiver and manager of Newman Steel Ltd.

KPMG Inc. Suite 3300, Commerce Court WestP.O. Box 31 Stn. Commerce CourtToronto ON M5L 1B2

Attention: Michael CreberSenior Vice-President

Plan Administrator

CONSENT

ON or about May 31, 2002, the Superintendentof Financial Services caused to be served on theApplicant, PricewaterhouseCoopers Inc. andKPMG Inc., the Plan Administrator, a Notice ofProposal dated May 28, 2002, to consent, pur-suant to subsection 78(1) of the Act, to a pay-

ment out of the Pension Plan for SalariedEmployees of Newman Steel Ltd. and itsAssociated Companies, Registration No. 283481(the “Plan”), to PricewaterhouseCoopers Inc. inthe amount of $206,400 (representing 40% ofthe surplus of $516,000 determined to be in thePlan as at November 4, 1991), plus the gains(net losses) thereon from November 4, 1991 tothe date of payment, less 40% of all expensesincurred in connection with the administrationof the wind up of the Plan, including, withoutlimitation, 40% of the reasonable legal andactuarial fees and expenses of those Plan mem-bers included in the surplus sharing group whoare represented by Anthony Wellenreiter of thelaw firm Wellenreiter & Wellenreiter.

NO Notice requiring a hearing was delivered tothe Financial Services Tribunal by the Applicantor any other party within the time prescribed bysubsection 89(6) of the Act.

THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Pension Plan for SalariedEmployees of Newman Steel Ltd. and itsAssociated Companies, Registration No. 283481,to PricewaterhouseCoopers Inc., an amount of$206,400 (representing 40% of the surplus of$516,000 determined to be in the Plan as atNovember 4, 1991), plus the gains (net losses)thereon from November 4, 1991, to the date ofpayment, less 40% of all expenses incurred inconnection with the administration of the windup of the Plan, including, without limitation,40% of the reasonable legal and actuarial feesand expenses of those Plan members includedin the surplus sharing group who are represent-ed by Anthony Wellenreiter of the law firmWellenreiter & Wellenreiter.

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THIS CONSENT IS EFFECTIVE ONLYAFTER the Applicant satisfies me that all bene-fits, benefit enhancements (including benefitsand benefit enhancements pursuant to theSurplus Sharing Agreement) and any other pay-ments to which the members, former members,and any other persons entitled to such pay-ments have been paid, purchased, or otherwiseprovided for.

DATED at Toronto, Ontario, this 16th day ofJuly, 2002

Tom GolfettoDirector, Pension Plans BranchBy Delegated Authority from theSuperintendent of Financial Services

cc: Mr. Husein DjukP.O. Box 312North Rustico PEI C0A 1X0

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the Pension Planfor Hourly Employees of BICC PhillipsInc. Located at its Brockville Factory,Registration No. 293753;


Attention: Ms. Joanne Bonfiglio254 South Main StreetNew City NY 10956 USA

CONSENT

ON or about June 28, 2002, the Superintendentof Financial Services caused to be served onBICC Canada Inc. a Notice of Proposal datedJune 26, 2002, to consent, pursuant to subsec-tion 78(4) of the Act, to payment out of thePension Plan for Hourly Employees of BICCPhillips Inc. Located at its Brockville Factory,Registration No. 293753, to BICC Canada Inc.in the amount of $728,818 as at August 22,2000, adjusted for expenses, plus investmentearnings thereon to the date of payment.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Pension Plan for HourlyEmployees of BICC Phillips Inc. Located at itsBrockville Factory, Registration No. 293753, of$728,818 as at August 22, 2000, adjusted for

expenses, plus investment earnings thereon tothe date of payment, to BICC Canada Inc.



cc: Mr. Duncan Richardson, Mercer HumanResource ConsultingMr. William GreenhamMr. Roger EyreMr. Malcolm BlairMr. Giovanni HreliaMr. Robert C. AndressMr. W.G. HaggartMr. Earl G. MottMr. J. Richard GillMr. Arthur W. LaneMr. Donald W. Conlin

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, consent-ing to a payment out of the Pension Plan forSalaried Union Employees of BICC PhillipsInc. (Located at Brockville, Ontario),Registration No. 370205


Attention: Ms. Joanne Bonfiglio

254 South Main Street

New City NY 10956 USA

CONSENT

ON or about June 24, 2002, the Superintendentof Financial Services caused to be served on BICCCanada Inc. a Notice of Proposal dated June 24,2002, to consent, pursuant to subsection 78(4) ofthe Act, to payment out of the Pension Plan forSalaried Union Employees of BICC Phillips Inc.(Located at Brockville, Ontario), Registration No. 370205, to BICC Canada Inc. in the amountof $23,735 as at August 22, 2000, adjusted forexpenses, plus investment earnings thereon tothe date of payment.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Pension Plan for SalariedUnion Employees of BICC Phillips Inc. (Locatedat Brockville, Ontario), Registration No. 370205,

of $23,735 as at August 22, 2000, adjusted forexpenses, plus investment earnings thereon tothe date of payment, to BICC Canada Inc.



cc: Mr. Duncan Richardson, Mercer HumanResource ConsultingMr. Willard M. BurkeMr. Donald W. ConlinMr. Arthur W. Lane

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the RetirementPlan for Certain Unionized Employees of Beta Brands Limited, Registration No. 1050210;

TO: Beta Brands Limited

Attention: Mr. George Harrison, CFO & Secretary1156 Dundas Street EastLondon ON N5W 5Y4

CONSENT

ON or about June 19, 2002, the Superintendentof Financial Services caused to be served on Beta Brands Limited a Notice of Proposal datedJune 19, 2002, to consent, pursuant to sub-section 78(4) of the Act, to payment out of The Retirement Plan for Certain UnionizedEmployees of Beta Brands Limited, RegistrationNo. 1050210, to Beta Brands Limited in theamount of $17,376.10 as at June 30, 2001, plusinterest, at the fund rate of return thereon to thedate of payment.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of The Retirement Plan for CertainUnionized Employees of Beta Brands Limited,Registration No. 1050210, of $17,376.10 as atJune 30, 2001, plus interest, at the fund rate ofreturn thereon to the date of payment, to BetaBrands Limited.



cc: Mr. Eric Poirier, Mercer Human ResourceConsultingMr. Michael E. Labute, Mercer HumanResource Consulting

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, con-senting to a payment out of the BoehringerIngelheim (Canada) Ltd./Ltée EmployeesPension Plan, Registration No. 356162;

TO: Boehringer Ingelheim (Canada) Ltd./Ltée

Attention: Ms. Louise MullerManager, Human Resources5180 South Service RoadBurlington ON L7L 5H4

CONSENT

ON or about July 2, 2002, the Superintendent ofFinancial Services caused to be served onBoehringer Ingelheim (Canada) Ltd./Ltée aNotice of Proposal dated July 2, 2002 to con-sent, pursuant to subsection 78(4) of the Act, topayment out of the Boehringer Ingelheim(Canada) Ltd./Ltée Employees’ Pension Plan,Registration No. 356162, to BoehringerIngelheim (Canada) Ltd./Ltée in the amount of$1,351,669.22 as at January 16, 2002.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Boehringer Ingelheim(Canada) Ltd./Ltée Employees’ Pension Plan,Registration No. 356162, of $1,351,669.22 as atJanuary 16, 2002, to Boehringer Ingelheim(Canada) Ltd./Ltée.

DATED at Toronto, Ontario, this 21st day ofAugust, 2002.


cc: Ms. Renate Leis, Buck Consultants Limited

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make anOrder under subsection 78(4) of the Act, consent-ing to a payment out of the Wajax IndustriesLimited Pension Plan, Registration No. 281006;

TO: Wajax Limited3280 Wharton WayMississauga Ontario L4X 2C5

Attention: Barbara HaddadManager, Compensation & Benefits

CONSENT

ON or about June 12, 2002, the Superintendentof Financial Services caused to be served onWajax Limited a Notice of Proposal dated June10, 2002, to consent, pursuant to subsection78(4) of the Act, to payment out of the WajaxIndustries Limited Pension Plan, Registration No. 281006, to Wajax Limited in the amount of$21,160.44 as at November 30, 2001, plus invest-ment earnings thereon to the date of payment.


THE SUPERINTENDENT OF FINANCIALSERVICES THEREFORE CONSENTS to thepayment out of the Wajax Industries LimitedPension Plan, Registration No. 281006, of$21,160.44 as at November 30, 2001, plus inter-est at the fund rate of return thereon to the dateof payment, to Wajax Limited.

DATED at Toronto, Ontario, this 22nd day ofAugust, 2002.


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IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the

Financial Services Commission of Ontario Act,1997, R.S.O. 1997, c. 28;

AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28,respecting the Revised Pension Plan forEmployees of the Employer (the “PensionPlan”), Registration Number 0224923;

TO: The Canada Life Assurance Company330 University AvenueToronto ON M5G 1R8

Attention: Ms. Milica StojsinPlan Wind-up Consultant

Administrator of the Revised Pension Plan for Employees of the Employer

AND TO: Brown & Collett Limited2365 Matheson Blvd.Mississauga ON L4W 5C2

Attention: Mr. R.W. Bernard Controller

Employer

AND TO: PricewaterhouseCoopers Inc. (formerly Price Waterhouse Limited)5700 Yonge StreetSuite 1900North York ON M4M 4K7

Attention: Mr. Craig Munro

Receiver and Trustee in Bankruptcy for Brown & Collett Limited

DECLARATION

WHEREAS:

1. The Revised Pension Plan for Employees ofthe Employer, Registration Number 0224923(the “Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commissionof Ontario Act, 1997, S.O. 1997, c.28 (the“Act”); and


3. The Pension Plan was wound up effectiveMarch 1, 1996; and

4. The Superintendent of Pensions appointedCanada Life Assurance Company as theadministrator (the “Administrator”) of thePension Plan on June 10, 1996; and

5. On February 26, 2002, I issued a Notice ofProposal dated February 15, 2002, to Make aDeclaration that the Guarantee Fund appliesto the Pension Plan; and

6. No notice requiring a hearing by theFinancial Services Tribunal, pursuant to sub-section 89(6) of the Act, has been received.

NOW THEREFORE TAKE NOTICE I declare,pursuant to section 83 of the Act, that the PBGFapplies to the Pension Plan for the followingreasons:

1. The Supplement to the Actuarial Report filedby the Administrator indicates an estimatedclaim against the Guarantee Fund of$436,300 as at March 31, 2002.

2. PricewaterhouseCoopers Inc. was appointedTrustee in Bankruptcy of Brown & CollettLimited on March 1, 1996 and as Receiveron April 22, 1996.

Declaration that the Pension Benefits Guarantee Fund Applies to Pension Plans — Subsection 83(1) of the PBA

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3. The Trustee in Bankruptcy has advised the Administrator that there are no fundsavailable from the estate of Brown & CollettLimited to make payment to the PensionPlan.


K. David GordonDeputy Superintendent, Pensions

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28, respecting the Retirement Plan forSalaried Employees of Airvector Inc. (the “Pension Plan”), RegistrationNumber C-9339;

TO: Morneau Sobeco Deloitte & Touche Inc.1500 Don Mills RoadToronto ON M3B 3K4


Administrator of the Retirement Plan for Salaried Employees of Airvector Inc.

AND TO: Airvector Inc.201 Speers RoadP.O. Box 430Oakville ON L6J 5A8

Attention: Camile AdibPresident

Employer

DECLARATION

WHEREAS:

1. The retirement Plan for Salaried Employeesof Airvector Inc., Registration No. C-9339(the “Pension Plan”), is registered under thePension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commissionof Ontario Act, 1997, c.28, (the “Act”); and


3. The Pension Plan was wound up effectiveDecember 31, 1986; and

4. The Superintendent of Pensions appointedDeloitte & Touche Inc. as the administrator(the “Administrator”) of the Pension Planon March 20, 1997 and on August 11, 2002,appointed Morneau Sobeco as Administratorto replace Deloitte & Touche Inc.; and

5. On March 1, 2002, the DeputySuperintendent, Pension Division, issued aNotice of Proposal dated March 1, 2002, toMake a Declaration that the Guarantee Fundapplies to the Pension Plan; and

6. No notice requiring a hearing by theFinancial Services Tribunal, pursuant to sub-section 89 (6) of the Act, has been received.

NOW THEREFORE TAKE NOTICE I declare,pursuant to sections 83 and 89 of the Act, thatthe Guarantee Fund applies to the Pension Planfor the following reasons:

1. The Addendum to the Actuarial ValuationReport filed by the Administrator indicates anestimated claim against the Guarantee Fundof $258,900.00 as at December 31, 2001.

2. The place of business of the Employer is closed due to the bankruptcy of theEmployer.

3. The Administrator has advised since theEmployer is no longer in business, there are no further funds expected from theEmployer or from any other sources for the Pension Plan.

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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28,respecting the Staff Pension Plan for HourlyPaid Employees of Vulcan Packaging Inc.(the “Pension Plan”), RegistrationNumber 0379214;

TO: Morneau SobecoDeloitte & Touche Inc.1500 Don Mills RoadToronto ON M3B 3K4


Administrator of the Staff Pension Plan for Hourly Paid Employees of Vulcan Packaging Inc.

AND TO: Vulcan Packaging Inc.15 Bethridge Road Rexdale ON M9W 1M6

Attention: Mr. Alex TelferPresident

Employer

AND TO: Ernst & Young Inc.175 Commerce Valley Drive WestSuite 600Thornhill ON L3T 7P6

Attention: Mr. Harold Reiter

Trustee in Bankruptcy, Vulcan Packaging Inc.

AND TO: CAW Local 1008467 St. Clair StreetChatham ON N7L 3K6

Attention: Mr. Joe McCabe

Union

DECLARATION

WHEREAS:

1. The Staff Pension Plan for Hourly PaidEmployees of Vulcan Packaging Inc.,Registration No. 0379214 (the “PensionPlan”), is registered under the PensionBenefits Act, R.S.O. 1990, c. P.8, as amendedby the Financial Services Commission ofOntario Act, 1997, c. 28 (the “Act”); and

2. The Pension Plan provides defined benefitsthat are not exempt from the application ofthe Pension Benefits Guarantee Fund (the“PBGF”), by the Act or the regulations madethereunder; and

3. The Pension Plan was wound up effectiveMay 15, 1997; and

4. The Superintendent of Pensions appointedDeloitte & Touche Inc. as the administrator(the “Administrator”) of the Pension Planon August 1, 1997; and

5. On February 15, 2002, I issued a Notice ofProposal dated February 12, 2002, to Make aDeclaration that the PBGF applies to thePension Plan; and


NOW THEREFORE TAKE NOTICE I declare,pursuant to sections 83 and 89 of the Act, thatthe PBGF applies to the Pension Plan for the fol-lowing reasons:

1. The Supplement to the Actuarial ValuationReport filed by the Administrator indicatesan estimated funding deficiency of $861,100as at August, 1, 2001 and an estimated claimagainst the Guarantee Fund as at August 1,2001 of $768,500.

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2. Ernst & Young Inc. was appointed Trustee inBankruptcy of Vulcan Packaging Inc. onMay 15, 1997.

3. The Administrator has advised that theyfiled a proof of claim for the asset shortfallbut is of the opinion that no recovery willbe realized of the proof of claim.

DATED at North York, Ontario, this 2nd day ofAugust, 2002.


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AND IN THE MATTER OF a Proposal of theSuperintendent of Financial Services to Make aDeclaration under section 83 of the Act, relatingto the Retirement Plan for Employees of Pigott Construction Limited andParticipating Companies, RegistrationNumber C-4989;

TO: Buck Consultants LimitedSuite 150095 Wellington Street WestToronto ON M5J 2N7


Administrator

Pigott Construction Ltd.P.O. Box 2309Hamilton ON L8N 3G7

Attention: W. Grant Dickinson Vice-President, Finance

Employer

DECLARATION

WHEREAS:

1. The Retirement Plan for Employees of PigottConstruction Limited and ParticipatingCompanies (the “Plan”), is registered underthe Act as Registration Number C-4989; and

2. The Plan provides defined benefits that are not exempt from the application of the Pension Benefits Guarantee Fund (the“Guarantee Fund”) by the Act or the regu-lations made thereunder; and

3. The Plan was wound up by the Employereffective December 31, 1991; and

4. A wind up report was filed by the Employer;and the Superintendent of Pensions approvedthe wind up report on September 17, 1992;and

5. All benefits and surplus assets were paid outof the plan in 1992 with no assets remainingin the Plan; and

6. In the year 2000, a deferred vested memberof the Plan, Colin Holland, claimed he wasomitted in error from the disbursement ofbenefits on wind up, and provided evidencethat he was entitled to a benefit upon windup; and

7. Buck Consultants was appointed administra-tor of the Plan by the Superintendent ofFinancial Services on July 6, 2000; and.

8. On July 15, 2002, the Deputy Superintendent,Pensions, issued a Notice of Proposal, datedJuly 12, 2002, to Make a Declaration that theGuarantee Fund applies to the Plan; and


NOW THEREFORE TAKE NOTICE THAT IDECLARE, pursuant to sections 83 and 89 ofthe Act, that the Guarantee Fund applies to thePlan for the following reasons:

REASONS FOR THE PROPOSED DECLARATION:

1. Colin Holland was entitled to a benefit fromthe Plan upon wind up but never received it;and

2. A supplementary wind up report for thePlan as at April 30, 2002, reveals that to pro-vide the benefit for Colin Holland and tomeet the expenses and other allowancesincurred in determining and distributing hisentitlement, would require an amount of$18,040 as at April 30, 2002; and

3. There are currently no assets in the Plan toprovide the benefit entitlement of ColinHolland and other expenses; and

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4. There are reasonable and probable groundsfor concluding that the funding require-ments of the Act and regulation cannot besatisfied.

DATED at North York, Ontario, this 9th day ofSeptember, 2002.

Tom Golfetto, DirectorPension Plans BranchBy Delegated Authority from theSuperintendent of Financial Services

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AND IN THE MATTER OF a Declaration bythe Superintendent of Financial Services underSection 83 of the Pension Benefits Act, as amend-ed by the Financial Services Commission ofOntario Act, 1997, S. O. 1997, c.28, respectingthe Forest City International Trucks Ltd.Non-Contributory Retirement Plan (forSalaried Non-Managerial Non-UnionizedEmployees), Registration Number 597948;

TO: Ernst & Young Inc.222 Bay StreetP.O. Box 251Toronto-Dominion CentreToronto ON M5K 1J7

Attention: Philip Kan, Manager

Administrator of the Forest City International Trucks Ltd. Non-Contributory Retirement Plan (for Salaried Non-Managerial Non-Unionized Employees)

AND TO: Forest City International Trucks Ltd.3003 Page StreetLondon ON N5V 4J1

Attention: John Parliament, Controller

Employer

ALLOCATION

WHEREAS on the 23rd day of May, 2001, Ideclared, pursuant to sections 83 and 89 of the Pension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commission ofOntario Act, 1997, S. O. 1997, c.28 (the “Act”),that the Pension Benefits Guarantee Fund (the

“PBGF”) applies to the Retirement Benefit Planfor the Employees of Forest City InternationalTrucks Ltd. Non-Contributory Retirement Plan(for Salaried Non-Managerial Non-UnionizedEmployees), Registration Number 597948 (the “Plan”);

NOW THEREFORE I shall allocate from thePBGF and pay to the Plan, pursuant to subsec-tion 34(7) of R.R.O. 1990, Reg. 909, under theAct (the “Regulation”), an amount not to exceed$271,900 determined as of December 31, 2001,to provide, together with the Ontario assets forthe benefits determined in accordance with sec-tion 34 of the Regulation. Any money allocatedfrom the PBGF but not required to provide suchbenefits shall be returned to the PBGF.

DATED at North York, Ontario this 17th day ofJune, 2002.


Allocations of Money from the Pension Benefits Guarantee Fund

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AND IN THE MATTER OF a Declaration bythe Superintendent of Financial Services underSection 83 of the Pension Benefits Act, as amend-ed by the Financial Services Commission ofOntario Act, 1997, S. O. 1997, c.28, respectingthe Retirement Benefit Plan for theEmployees of Norman Wade CompanyLimited, Techniprint Services Limitedand Norman Wade Management Limited,Registration Number 315176;

TO: Arthur Andersen Inc.Suite 10504 King Street WestToronto ON M5H 1B6

Attention: Mr. Lawrence A. Contant

Administrator

United Steelworkers of America1291 Matheson Boulevard East Mississauga ON L4W 1R1

Attention: Ms. Peggy McComb

Union

ALLOCATION

WHEREAS on the 28th day of August, 2001, Ideclared, pursuant to sections 83 and 89 of thePension Benefits Act, R.S.O. 1990, c. P.8, as amend-ed by the Financial Services Commission of OntarioAct, 1997, S. O. 1997, c.28 (the “Act”), that thePension Benefits Guarantee Fund (the “PBGF”)applies to the Retirement Benefit Plan for theEmployees of Norman Wade Company Limited,Techniprint Services Limited and Norman WadeManagement Limited, Registration Number315176 (the “Plan”);

NOW THEREFORE I shall allocate from thePBGF and pay to the Plan, pursuant to subsec-tion 34(7) of R.R.O. 1990, Reg. 909, under theAct (the “Regulation”), an amount not toexceed $371,800 to provide, together with theOntario assets for the benefits determined inaccordance with section 34 of the Regulation.Any money allocated from the PBGF but notrequired to provide such benefits shall bereturned to the PBGF.

DATED at North York, Ontario this 17th day ofJune, 2002.


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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28,respecting the Retirement Plan for SalariedEmployees of Airvector Inc. (the “PensionPlan”), Registration Number C-9339;



Administrator of the Retirement Plan for Salaried Employees of Airvector Inc.

ALLOCATION

WHEREAS on July 2002, I declared, pursuantto sections 83 and 89 of the Pension Benefits Act,R.S.O. 1990, c. P.8, as amended by the FinancialServices Commission of Ontario Act, 1997, S.O.1997, c.28 (the “Act”), that the Pension BenefitsGuarantee Fund (the “Guarantee Fund”) appliesto the Retirement Plan for Salaried Employees ofAirvector Inc., Registration Number C-9339 (the“Pension Plan”);

NOW THEREFORE I shall allocate from theGuarantee Fund and pay to the Pension Plan,pursuant to subsection 34(7) of R.R.O. 1990,Reg. 909, under the Act (the “Regulation”), anamount not to exceed $258,900 which togetherwith the Ontario assets of the Pension Plan, forthe benefits determined in accordance with sec-tion 34 of the Regulation. Any money allocated

from the Guarantee Fund but not required toprovide such benefits shall be returned to theGuarantee Fund.



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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services to Make aDeclaration under Section 83 of the PensionBenefits Act, as amended by the Financial ServicesCommission of Ontario Act, 1997, S.O. 1997, c.28,respecting the Staff Pension Plan for HourlyPaid Employees of Vulcan Packaging Inc.(the “Pension Plan”), RegistrationNumber 0379214;



Administrator of the Staff Pension Plan for Hourly Paid Employees of Vulcan Packaging Inc.

ALLOCATION

WHEREAS on August 2nd, 2002, I declared,pursuant to sections 83 and 89 of the PensionBenefits Act, R.S.O. 1990, c. P.8, as amended bythe Financial Services Commission of Ontario Act,1997, S.O. 1997, c.28 (the “Act”), that thePension Benefits Guarantee Fund (the “PBGF”)applies to the Staff Pension Plan for Hourly PaidEmployees of Vulcan Packaging Inc., RegistrationNumber 0379214 (the “Pension Plan”);

NOW THEREFORE I shall allocate from thePBGF and pay to the Pension Plan, pursuant tosubsection 34(7) of R.R.O. 1990, Reg. 909, underthe Act (the “Regulation”), an amount not toexceed $768,500 which together with theOntario assets of the Pension Plan, for the bene-

fits determined in accordance with section 34 ofthe Regulation. Any money allocated from thePBGF but not required to provide such benefitsshall be returned to the PBGF.



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AND IN THE MATTER OF a Declaration by theSuperintendent of Financial Services under sec-tion 83 of the Act relating to the RetirementPlan for Employees of Pigott ConstructionLimited and Participating Companies,Registration Number C-4989;

TO: Buck Consultants LimitedSuite 150095 Wellington Street WestToronto ON M5J 2N7


Administrator

AND TO: Pigott Construction Ltd.P.O. Box 2309Hamilton ON L8N 3G7

Attention: W. Grant Dickinson, Vice-President, Finance

Employer

ALLOCATION

WHEREAS on the 12th day of July 2002, Ideclared, pursuant to sections 83 and 89 of thePension Benefits Act, R.S.O. 1990, c. P.8, asamended by the Financial Services Commission ofOntario Act, 1997, S. O. 1997, c.28 (the “Act”),that the Pension Benefits Guarantee Fund (the“Guarantee Fund”) applies to the RetirementPlan for Employees of Pigott ConstructionLimited and Participating Companies,Registration Number C-4989 (the “Plan”);

NOW THEREFORE I shall allocate from theGuarantee Fund and pay to the Plan, pursuantto subsection 34(7) of R.R.O. 1990, Reg. 909,under the Act (the “Regulation”), an amountnot to exceed $18,040 to provide, together withthe Ontario assets, if any, for the benefit entitle-ment of Colin Holland under the Plan, deter-mined under subsections 34(5) and 34(6) of theRegulation, and to pay the reasonable adminis-tration costs of settling his entitlement. Anymoney allocated from the Guarantee Fund butnot required to provide such benefit or costsshall be returned to the Guarantee Fund.

DATED at North York, Ontario, this 9th day ofSeptember, 2002.


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Appointments of Tribunal MembersName and O.C. Effective Expiry Date

Appointment Date

Milczynski, Martha (Chair)O.C. 1622/2001 June 20, 2001 June 19, 2004O.C. 1665/99 October 6, 1999 July 7, 2001O.C. 1808/98 July 8, 1998 October 6, 1999

McNairn, Colin (Vice-Chair)O.C. 1623/2001 June 20, 2001 June 19, 2004**O.C. 1809/98 July 8, 1998 July 7, 2001

Corbett, Anne (Vice-Chair Acting)O.C. 1438/2001 June 20, 2001 June 19, 2004**

Ashe, KevinO.C. 1510/2002 September 26, 2002 September 25, 2005

Bharmal, Shiraz Y.M.O.C. 1511/2002 September 9, 2002 September 8, 2005

Erlichman, LouisO.C. 439/2002 January 23, 2002 January 22, 2005**O.C. 2527/98 December 9, 1998 December 8, 2001O.C. 1592/98 June 17, 1998 December 16, 1998

Gavin, Heather O.C. 440/2002 January 23, 2002 January 22, 2005**O.C. 11/99 January 13, 1999 January 12, 2002

Litner, Paul W.O.C. 1512/2002 September 9, 2002 September 8, 2005

Martin, Joseph P.O.C. 1626/2001 June 20, 01 June 19, 2004**O.C. 1810/98 July 8, 1998 July 7, 2001

Moore, C.S. (Kit) O.C. 1625/2001 June 20, 2001 June 19, 2004**O.C. 1591/98 July 1, 1998 June 30, 2001

Short, David A.O.C. 2118/2001 October 24, 2001 October 23, 2004**

Vincent, J. DavidO.C. 2119/2001 October 24, 2001 October 23, 2004**

Wires, David E.O.C. 2166/99 February 26, 2000 February 25, 2003O.C. 257/97 February 27, 1997 February 26, 2000

**Or on the day FSCO/OSC merges, if earlier

TRIBUNAL ACTIVITIES

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Imperial Oil LimitedImperial Oil Limited Retirement Plan(1988), Registration Number 347054 and the Imperial Oil Limited Retirement Plan for Former Employees of McColl-Frontenac Inc. Registration Number344002, FST File Number P0130-2000;On October 31, 2000, Imperial Oil Limitedrequested a hearing with respect to theSuperintendent’s Notice of Proposal datedOctober 3, 2000, proposing to refuse to approvepartial wind up reports in respect of two Plansof which Imperial Oil is the Administrator.

The stated reasons for the proposed refusalinclude the failure of each wind up report to dothe following: (a) reflect the liabilities associatedwith all of the members of the Plan whoseemployment was terminated by Imperial Oilduring the wind up period; (b) apply the grow-in provisions of section 74 of the PensionBenefits Act in a proper manner; (c) provide ben-efits in accordance with elections made, asrequired under subsection 72(1) of the PensionBenefits Act, among various options includingthose available as a result of partial wind up;and (d) provide for the distribution of assetsrelated to the partial wind up group.

A pre-hearing conference was held on June 19,2001. At the pre-hearing conference, theSuperintendent agreed to amend the Notice of Proposal in this matter to delete reference to (d) above.

A hearing and preliminary motion with respectto answers to interrogatories was held on July 25,2001. The Tribunal ordered the Superintendentto respond to the first and second set of theApplicant’s interrogatories within six weeks ofthe date of the order subject to the qualificationthat the Superintendent need not produce any

documents or reveal any communications towhich the law of privilege applies. WrittenReasons for Order dated September 10, 2001,were published in Volume 11, Issue 1 of thePension Bulletin.

A continuation of the pre-hearing conferencewas held on December 20, 2001. The pre-hearingconference was adjourned to allow the parties tobring motions with respect to answers to inter-rogatories. On July 24, 2002, the Tribunal heardtwo motions. The Applicant’s notice of motiondated June 7, 2002, asked for an order of theTribunal directing the Superintendent to providefurther and better answers to some of its inter-rogatories. The Tribunal made an order directingthe Superintendent to respond to certain of theinterrogatories but with some modifications.Reasons for Order dated September 11, 2002, arepublished in this bulletin on page 102. The timefor the Superintendent’s response under thisOrder was extended by Consent Order datedOctober 22, 2002.

The Superintendent’s notice of motion datedJune 5, 2002, asked for an order of the Tribunaldirecting the Applicant to answer those inter-rogatories it had served on the Applicant onOctober 11, 2001, that remained outstanding.The Tribunal made an order directing theApplicant to respond to certain of the interroga-tories but with some modifications. TheReasons for Order dated September 20, 2002,are published in this bulletin on page 120.

The pre-hearing conference is scheduled toresume on December 18, 2002.

Marshall-Barwick (formerly MarshallSteel Limited), Registration Number0968081, FST File Number P150-2001;On January 16, 2001, Marshall-Barwick Inc. (for-merly Marshall Steel Limited) requested a hear-

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ing in respect of the Superintendent’s Notice ofProposal dated December 12, 2000. TheSuperintendent is proposing to refuse to approvea Partial Wind Up Report as at August 28, 1992,respecting the Retirement Plan for SalariedEmployees of Marshall Steel Limited andAssociated Companies in relation to employeeswho ceased to be employed by Marshall SteelLimited as a result of the closure of its plant inMilton, Ontario. The Superintendent’s basis forthe Notice of Proposal is that the Report doesnot protect the interests of all those affected bythe partial wind up, specifically Mr. Jeffrey G.Marshall, an employee who was terminated dur-ing the wind up period. On June 4, 2001, JeffreyG. Marshall applied for party status.

A pre-hearing conference was held on August13, 2001, at which time Mr. Marshall was grant-ed full party status. The hearing scheduled forNovember 29 and 30, 2001, was adjourned as aresult of a joint request made by the parties onNovember 6, 2001. The reason for the requestwas due to the applicant providing Mr. Marshallwith actuarial data in respect of Mr. Marshall’sbenefit entitlements. Mr. Marshall required addi-tional time to obtain expert advice in respect ofthe information. The hearing was held onSeptember 9, 2002. The decision is reserved.

Independent Order of ForestersFieldworkers, Registration Number0354399, FST File Number P155-2001;On August 12, 2001, The Independent Order ofForesters (“IOF”) requested a hearing withrespect to the Superintendent’s Notice ofProposal dated March 19, 2001, to refuse toconsent to an application for the payment ofthe surplus of the IOF Fieldworkers PensionPlan to the employer. The Superintendent pro-posed to refuse consent on the basis that she

was not satisfied that the Plan had a surplus andprovided for the payment of any surplus to theemployer on the wind up of the Plan.

A pre-hearing conference was held on July 4,2001, at which Mr. Irvin Grainger was joined asa party to the proceeding. The pre-hearing con-ference continued on July 27, 2001, at whichtime it was agreed that a settlement conferencewould be held on November 13, 2001. Amotion by IOF for a determination of theappropriate manner and form of giving noticeof the hearing in this matter was heard onDecember 7, 2001, by a panel of the Tribunaland was followed by a further continuation ofthe pre-hearing conference. At the motion hear-ing it was ordered that notice of hearing be byway of national newspaper publication, andthat the notice also be provided by ordinarymail to all members and former members affect-ed by the wind up. Written reasons for Ordersmade on December 7, 2001, were published inVolume 11, Issue 2 of the Pension Bulletin. OnJune 12, 2001, the Superintendent and IOFmade a joint request that the hearing in thismatter proceed in respect of the issue ofwhether the Plan provided for the payment ofsurplus to IOF, the employer, but that the hear-ing in respect of the issue of whether there wasany surplus in the Plan be deferred. The requestwas granted and the panel held a hearing onthe first of the two issues on June 18, 2002. TheTribunal concluded that the Plan did not pro-vide for the payment of surplus to IOF. As it wasunnecessary, therefore, to decide whether thePlan had a surplus, the Tribunal directed theSuperintendent to carry out the proposal in theNotice of Proposal to refuse to consent to thepayment of any surplus in the Plan to IOF. TheReasons for Decision dated September 16, 2002,are published in this bulletin on page 110.

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Camco Inc. Pension Plan Number 4,Registration Number 0583302 to CamcoInc. Pension Plan Number 7, RegistrationNumber 0583336, FST File Number P160-2001;On May 14, 2001, Camco Inc. requested a hear-ing with respect to the Superintendent’s Noticeof Proposal dated March 30, 2001, to refuse toconsent to a transfer of assets from the CamcoInc. Pension Plan 4, Registration Number0583302 to the Camco Inc. Pension Plan No. 7,Registration Number 0583336.

The basis for the Notice of Proposal was that theasset transfer does not protect the pension ben-efits and other benefits of the former membersof Plan 4 under subsection 81 (5) of the PensionBenefits Act.

A pre-hearing conference was held onSeptember 24, 2001. The settlement conferencescheduled for December 17, 2001, was resched-uled to February 7, 2002, after which settlementdiscussions continued. On September 10, 2002,the Tribunal was advised the parties havereached a settlement.

Consumers Packaging Inc., Pension PlanII, Registration Number 0998682, FST FileNumber P162-2001;On May 17, 2001, Consumers Packaging Inc.requested a hearing with respect to theSuperintendent’s Notice of Proposal dated April20, 2001, to refuse to approve a Partial Wind UpReport filed by Consumers Packaging Inc. onMay 19, 2000, with respect to a partial wind upof the Consumers Packaging Inc. Pension Plan II,Registration Number 0998682, as at May 7, 1997,and to refuse to register an amendment to suchPension Plan filed by Consumers Packaging Inc.on May 19, 2000, titled Amendment # 2.

The basis for the Notice of Proposal was thatConsumers Packaging Inc. filed a Partial Wind

Up Report in 1997. The Superintendent issuedtwo Notices of Proposal in 1999 orderingConsumers Packaging Inc. to accept as membersof the Plan certain replacement call-in employeesand refusing to approve the 1997 Partial WindUp Report on the grounds that the replacementcall-in employees were not included in theReport and that “grow-in” to plant closure benefits was not provided to unionized hourlyemployees affected by the partial wind up.Consumers Packaging Inc. requested a hearingbefore the Financial Services Tribunal withrespect to both Notices of Proposal. The hearingconcerning the call-in employees was settled by the parties and Consumers Packaging Inc.accepted as members of the Plan those replace-ment call-in employees who met certain condi-tions. The hearing request regarding the “grow-in” benefits was withdrawn. ConsumersPackaging Inc. was ordered to file an amendedPartial Wind Up Report. In addition, in 1997,Consumers Packaging filed an application to reg-ister Amendment # 2 to the Plan which providedenhanced bridge benefits to some members.

On May 19, 2000, Consumers Packaging filed arevised Partial Wind Up Report (the “revisedReport”) and a revised application to registerAmendment #2 (the “revised Amendment”).The Superintendent issued the April 20, 2001Notice of Proposal stating reasons that therevised Amendment is void pursuant to clause14(1)(c) of the Pension Benefits Act, and that therevised Report does not meet the requirementsof the Pension Benefits Act pursuant to subsec-tion 70(5), because the commuted value of the pension benefits and ancillary benefits forthe affected members is calculated based on the revised Amendment, which is void underthe Act. The revised Report does not protect theinterests of the members and former membersof the Plan for the same reason.

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The Superior Court of Justice, Commercial List,issued an Order, dated May 23, 2001, statingthat any suit, action, enforcement process,extra-judicial proceeding, regulatory, adminis-trative or other proceeding against or in respectof Consumers Packaging Inc. already com-menced be stayed and suspended until andincluding June 22, 2001. A further Order wasissued on June 18, 2001, extending the stayperiod until August 15, 2001 and again untilOctober 1, 2001. On October 1, 2001, a PensionAssumption Agreement was made. A pre-hear-ing conference was held on February 19, 2002.

A motion brought by Consumers Packaging foran order compelling the Superintendent toanswer certain interrogatories was heard onApril 18, 2002, at which time the motion wasdismissed. The hearing was held on July 29 and31, 2002. The decision is reserved.

CBS Canada Co., Westinghouse CanadaInc. Pension Plan, Registration Numbers348409 and 526632, FST File NumberP164-2001;On June 8, 2001, CBS Canada Co., the successorto Westinghouse Canada Inc., requested hear-ings in connection with the Superintendent’sNotices of Proposal dated May 9 and 15, 2001,to refuse to approve various Partial Wind UpReports in respect of the Salaried EmployeesPension Plan and the Hourly Paid EmployeesPension Plan of Westinghouse Canada Inc. Thepartial wind ups were triggered by the closureby ABB Canada Inc. of its plants in London,Ontario; St. Jean, Quebec; and Burlington,Ontario, at which it carried on businessesacquired from Westinghouse Canada Inc., andby the closure by Westinghouse Canada Inc. ofits Motors Division plant in Hamilton, Ontario.

The basis for each Notice of Proposal was thatthe relevant Partial Wind Up Report failed to

provide employer request early retirement bene-fits and related bridge benefits, contemplated byeach Plan, to all members of the partial wind upgroup whose age plus years of service equaled at least 55 and because the Report failed to pro-vide for the distribution of surplus relating tothe partial wind up group.

On June 19, 2001, CAW Canada, which repre-sented the employees who were members of theWestinghouse Hourly Paid Employees PensionPlan, filed an application for party status inthese proceedings. At a pre-hearing conferenceon November 5, 2001, CAW Canada was grant-ed party status in the proceedings concerningthe Notices of Proposal relating to the HourlyEmployees Pension Plan and was given limitedrights to participate in the proceedings concern-ing the Notices of Proposal relating to theSalaried Employees Pension Plan. The variousproceedings were directed to be heard together.

At a continuation of the pre-hearing conferenceheld on November 29, 2001, a hearing wasscheduled for February 4-5, 2002 to deal withseveral jurisdictional issues to be brought on bymotion of CBS Canada Co. Those issues includedthe following:

1. whether the Superintendent was entitled torescind the initial approvals that she hadgiven with respect to several of the PartialWind Up Reports, for failure to adhere tothe doctrine of fairness, and for which shesubsequently substituted Notices of Proposalto refuse approval;

2. whether the Tribunal could direct theSuperintendent to refuse approval of certainof the Wind Up Reports on the basis of aground that was not specifically recited inthe relevant Notices of Proposal;

3. whether the Tribunal could determine theresponsibility for any special benefits

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payable to the former Westinghouseemployees at the facilities that were closedby ABB Inc. as between CBS Canada Co. andABB Inc.; and

4. whether the Tribunal could order that ABBInc. be added as a party to the proceedingsagainst its will.

At the hearing on the jurisdictional motion, theTribunal refused to order that ABB Inc. be addedas a party, but otherwise reserved its determina-tion of the issues raised by the motion. Reasonsfor Decision on the jurisdictional motion datedMarch 4, 2002, were published in Volume 11,Issue 3 of the Pension Bulletin.

The Applicant filed a notice of appeal datedApril 3, 2002, with the Divisional Court of theTribunal’s Order dated March 4, 2002.

A settlement conference was held on August 7-8, 2002. On October 4, 2002, a motion hear-ing was held with respect to the Applicant’snotice of motion dated September 25, 2002,asking for an order that the CAW respond to theApplicant’s interrogatories dated September 25,2002. At the motion hearing the parties agreedthat the motion could be dealt with by way of a consent order and such an order was subse-quently issued.

The hearing is scheduled for December 2-5 and10-12, 2002.

Samsonite Canada Inc.Samsonite Canadian Service RelatedPension Plan, Registration Number398578, FST File Number P0166-2001 andFST File Number P175-2001;On July 3, 2001, Samsonite Canada Inc. request-ed a hearing with respect to theSuperintendent’s Notice of Proposal dated June1, 2001, to refuse to consent to the applicationof Samsonite Canada Inc., dated November 13,

2000, for the payment of surplus to theEmployer under subsection 78(1) of the PensionBenefits Act from the Samsonite CanadianService Related Pension Plan, Registration No. 398578.

On November 2, 2001, Samsonite Canada Inc.requested a hearing with respect to theSuperintendent’s Notice of Proposal datedOctober 11, 2001, to refuse to consent to theapplication of Samsonite Canada Inc. datedNovember 13, 2000, for the payment of surplusto the Employer under subsection 78(1) of thePension Benefits Act from the SamsoniteCanadian Retirement Income Plan, RegistrationNo. 373225.

At the pre-hearing conference held on November9, 2001, the parties requested that these two mat-ters be joined and heard together. The matterswere joined and the hearing was held on June 3,2002. At the hearing, the Tribunal gave the par-ties 30 days to file any additional written submis-sions. Final written submissions were filed June21 and July 2, 2002. In its decision, the Tribunalaffirmed each of the Superintendent’s Notice ofProposals and directed the Superintendent to dismiss the Company’s applications for surpluswithdrawal. The Reasons for Decision datedOctober 21, 2002, are published in this bulletinon page 126.

Imperial Oil Limited Retirement Plan,Registration Number 347054, FST FileNumber P0169-2001;In this matter, the Superintendent alleges that,effective April 28, 1995, Imperial Oil Limited(“IOL”) sold its credit card operations toGeneral Electric Capital Canada Inc. (“GECapital”), at which time 37 individuals, whohad been employed by IOL in that business andwere members of the IOL Retirement Plan,became employees of GE Capital and members

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of its Pension Plan, while maintaining theiraccrued benefits in the IOL Retirement Plan.

On August 3, 2001, the Superintendent issuedNotices of Proposal to make Orders requiring:

• that the IOL Retirement Plan be wound up inrelation to those members and former mem-bers of the Plan who ceased to be employedby GE Capital, between March 2000 and July2000, as a result of the closure of itsMarkham, Ontario credit card facility; and

• that such members and former members ofthe IOL Retirement Plan be given credit forboth age and service at the time they ceasedto be employed by GE Capital when deter-mining their benefits, in accordance with sec-tion 80(1)(c) of the Pension Benefits Act, underthe IOL Retirement Plan.

On August 24, 2001, IOL requested a hearing inrespect of these Notices of Proposal.

A pre-hearing conference was held on January 9,2002. The evidence phase of the hearing washeld on June 13, 2002 and the submission phasewas held on August 1, 2002. In its decision, theTribunal made orders:

• directing the Superintendent to carry out theproposal to order the wind up of the IOLRetirement Plan; and

• directing the Superintendent to refrain fromcarrying out the remaining proposal as itrelates to determining benefits under section4.3 of the IOL Retirement Plan.

The Reasons for Decision dated October 21, 2002,are published in this bulletin on page 131.

Stanley Canada Inc., Pension Plan forDesignated Employees of Stanley CanadaInc., Registration Number 456897, FSTFile Number P0170-2001;On August 27, 2001, Stanley Canada Inc.requested a hearing with respect to the

Superintendent’s Notice of Proposal dated July26, 2001, to refuse to consent to the applicationfor payment of surplus to the Employer datedApril 1999, pursuant to section 78(1) of thePension Benefits Act.

An Application for Party Status was filed onNovember 20, 2001, by Mr. Blaine Mitton, aMember of the Plan.

The pre-hearing conference scheduled forNovember 28, 2001, was rescheduled to January10, 2002, at which time Mr. Mitton was grantedparty status. On January 11, 2002, anApplication for Party Status was filed by Mr.Edward Holba, a Member of the Plan. The par-ties consented to Mr. Holba’s Application forParty Status and full party status was granted byOrder dated April 4, 2002. The May 2002 hear-ing dates were adjourned at the request of theparties for a motion to be brought by theSuperintendent concerning expert evidence.The motion was heard on May 22, 2002. Thehearing is scheduled for November 19, 2002.

Canadian Tack & Nail Ltd. Pension Planfor Salaried Employees, RegistrationNumber 0581306, FST File NumberP0171-2001;On September 14, 2001, Canadian Tack & Nail Ltd. requested a hearing regarding theSuperintendent’s Notice of Proposal datedAugust 14, 2001, to make an Order under sec-tion 87 of the Pension Benefits Act, requiring the Employer or Administrator of the Plan toremit within 30 days of receiving the Notice ofProposal, outstanding contributions in theamount of $67,933 as of December 31, 1999,owed to the Pension Fund, together with inter-est payable under section 24 of Regulation 909under the Act.

The basis for the Notice of Proposal is that subsec-tion 87(2) of the Act allows the Superintendent to

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make an order if the Superintendent is of theopinion, upon reasonable and probable grounds,that the pension plan or fund is not beingadministered in accordance with the Act, theRegulations or the pension plan or if the employ-er, administrator of a pension plan, or any otherperson is contravening a requirement of the Actor the Regulations.

At a pre-hearing conference on February 7,2002, the parties agreed to a settlement confer-ence. At a settlement conference on June 27,2002, the parties reached agreement and agreedto adjourn the hearing sine die. Any breach inthe terms of the settlement gives the parties theright to ask that the pre-hearing conference berescheduled.

The Corporation of the City of KitchenerPension Plan for Fire DepartmentEmployees, Registration Number 239475,FST File Number P0172-2001;On September 20, 2001, The Corporation of theCity of Kitchener requested a hearing regardingthe Superintendent’s Notice of Proposal datedAugust 23, 2001, to refuse to consent to theapplication for payment of surplus to theemployer, pursuant to section 78(1) of thePension Benefits Act, from The City of KitchenerPension Plan for Fire Department Employees,Registration No. 239475.

A pre-hearing conference was held on April 25,2002, at which time the parties agreed to a set-tlement conference. The settlement conferencedate of July 16, 2002 was rescheduled at the parties’ request and was held on September 4,2002. The matter is adjourned sine die.

Pension Plan for Employees of Proctor &Redfern Limited, Registration Number0289579, FST File Number P0173-2001; On November 5, 2001, certain former employ-ees of Proctor & Redfern Limited and members

of the Plan, requested a hearing regarding theSuperintendent’s Notice of Proposal datedOctober 3, 2001, to refuse to make an Orderunder sections 69 and 87 of the Pension BenefitsAct. The Superintendent proposed:

• to refuse to make an Order that the Plan bepartially wound up with respect to formeremployees of Proctor & Redfern Limitedwhose employment was terminated betweenand including 1994 and 1998;

• to refuse to make an Order that the formeremployees whose employment was terminat-ed between and including 1994 and 1998, aswell as former employees who had their pen-sion benefits annuitized in 1998 and 1999, beincluded in the surplus sharing group;

• to refuse to make an Order that those employ-ees are entitled to share in the surplus distrib-ution on an equitable basis, and;

• to refuse to make an Order that Earth Tech(Canada) Inc. refund to the Plan any fundsimproperly withdrawn from the Plan to fundits own legal and actuarial costs.

The principal grounds for the proposals in theNotice of Proposal were that the requestedOrders relating to the composition of the partialwind up group would expand that groupbeyond those who were properly entitled toparticipation in the group and that there wasno evidence that Earth Tech (Canada) Inc. hadimproperly withdrawn funds from the Plan.

On November 26, 2001, Earth Tech (Canada)Inc., the successor to Proctor & Redfern Limited,applied for party status on the basis that it is thecurrent administrator of the Plan and has a dutyto ensure that the Plan is properly wound-up.

On February 21, 2002, Mr. Guy Boudaudapplied for party status. Mr. Boudaud was anemployee of Proctor & Redfern Limited andcontributed to the Plan.

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The pre-hearing conference scheduled for May1, 2002, was rescheduled to August 26, 2002and was further adjourned on consent toOctober 17, 2002. On October 16, 2002, theapplicants withdrew the request for hearing.

Retirement Pension Plan for Employeesof Twin Oak Credit Union Ltd.,Registration Number 284257, FST FileNumber P0178-2002;On January 11, 2002, Twin Oak Credit UnionLtd. requested a hearing regarding the Super-intendent’s Notice of Proposal dated December13, 2001, proposing to make an Order under sec-tion 87 of the Pension Benefits Act, with respect toCarol Joseph and any other part-time employeeeligible for membership in the Plan. The Super-intendent has proposed that the administrator ofthe Plan pay to Ms. Joseph her pension benefitdetermined on the basis that Ms. Joseph was eligible for membership and should have beenenrolled in the Plan effective January 1, 1978.The Superintendent also proposed to order theadministrator to provide, to any other part-timeemployee who was eligible to participate in thePlan, the monthly pension benefit determinedon the basis that the part time employee was eligible for membership and should have beenenrolled in the Plan effective January 1, 1978 orlater if employed at a later date. The Superin-tendent also proposed that any lump sum owingto Ms. Joseph or any other eligible part-timeemployee representing retroactive paymentsshall also be credited with interest payable pur-suant to subsection 21(11) of Regulation 909made under the Act. Applications for Party Statuswere filed by Carol Lynne Joseph, Mary LynnFeenan, Sharon Wiese, Donna Fredricks andWendy Edmunds.

At the pre-hearing conference on April 24, 2002,full party status was granted to Ms. Joseph,

Ms. Feenan, Ms. Wiese and Ms. Fredricks. Partystatus was not granted to Ms. Edmunds.

The parties agreed to a settlement conferencewhich was held on June 4, 2002. The partiesalso agreed that a preliminary motion will bebrought to decide whether or not the Tribunalhas the jurisdiction to deal with the proposedissue of whether or not the employer is enti-tled to a credit for payments made in lieu ofbenefits to part-time employees under collec-tive agreements during the period January 1,1978 to January 1, 1988 and whether theLimitations Act bars this proceeding. TheMotion scheduled for November 6, 2002, didnot proceed at the request of the parties as set-tlement discussions are ongoing. The hearingis scheduled for February 24, 26-28, 2003 andMarch 26-28, 2003.

Marcel Brousseau, Electrical Industry of Ottawa Pension Plan, RegistrationNumber 0586396, FST File NumberP0183-2002;On February 20, 2002, Marcel Brousseau, amember of the Plan, requested a hearing regard-ing the Superintendent’s Notice of Proposaldated January 22, 2002, to refuse to make anOrder in respect of the Plan Administrator’sdetermination pursuant to section 87 of thePension Benefits Act, of Mr. Brousseau’s pension-able service under the terms of the Plan.

A pre-hearing conference was held on August27, 2002. At the pre-hearing conference, theSuperintendent raised a jurisdictional issue. Theparties agreed that the issue on the motion willbe, “Given the November 19, 2001 decision ofthe Superior Court of Justice in Court File No.01-CV-18268, does the Tribunal have jurisdic-tion to proceed in the circumstances of thiscase?”. The motion is scheduled to be heard onNovember 29, 2002.

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Molson Canada, Molson BreweriesPension Plan for Operating Engineers,Registration Number 0390666; MolsonCanada Pension Plan for HourlyEmployees in Ontario and AtlanticCanada, Registration Number 0334094;and Molson Canada Pension Plan forSalaried Employees, Registration Number0334086, FST File Number P0187-2002;On June 7, 2002, Molson Canada requested ahearing regarding the five Notices of Proposalissued by the Superintendent each dated May 5,2002, proposing to make Orders that the vari-ous Molson Canada Pension Plans be woundup in part.

The pre-hearing conference scheduled forOctober 28, 2002, was adjourned sine die onconsent of the parties.

Donna Marie Sloan, Ontario Teachers’Pension Plan, Registration Number0345785, FST File Number P0188-2002;A survivor pre-retirement death benefit that wasbeing paid to Donna Marie Sloan under the Planwas discontinued when the Ontario PensionPlan Board, the Administrator of the Plan, con-cluded that she was living separate and apartfrom her husband, the Plan member, at the timeof his death, thereby disqualifying her fromreceiving the benefit. On March 4, 2002, theSuperintendent issued a Notice of Proposalrefusing to make an order, pursuant to section87 of the Pension Benefits Act, requiring theAdministrator to take action in respect of thePlan by reinstating the death benefit. On April2, 2002, Donna Marie Sloan requested a hearing.On April 23, 2002, the Ontario Teachers’Pension Plan Board filed an Application forParty Status.

The pre-hearing conference scheduled forAugust 20, 2002 was adjourned sine die on con-

sent, pending settlement discussions betweenthe parties.

Bauer Nike Hockey Inc. Pension Plan forEmployees of Bauer Nike Hockey Inc.,Registration Number 257337, FST FileNumber P0189-2002;On April 3, 2002, Bauer Nike Hockey Inc.,requested a hearing regarding theSuperintendent’s Notice of Proposal datedMarch 8, 2002, to refuse to approve the actuari-al report prepared on December 23, 1998, inrespect of the partial wind up as at November 1,1998, submitted by Bauer Nike Hockey Inc., tothe Superintendent under sections 70(5) and89(4) of the Pension Benefits Act, relating to thePension Plan for Employees of Bauer NikeHockey Inc., Registration Number 257337.

At the pre-hearing conference on October 28,2002, the matter was adjourned sine die pendingthe outcome of the Monsanto case.

Kerry (Canada) Inc., Pension Plan for the Employees of Kerry (Canada) Inc.,Registration Number 238915, FST FileNumber P0191-2002;On May 22, 2002, Kerry (Canada) Inc., request-ed a hearing regarding the Superintendent’sNotice of Proposal dated April 22, 2002, propos-ing to make an order that Kerry (Canada) Inc.:

• reimburse the pension fund (the “Fund”) ofthe Plan for all amounts paid out of the Fundfrom January 1, 1985 for expenses that werenot incurred for the exclusive benefit of themembers and retired members of the Plan;

• reimburse the Fund for all income that wouldhave been earned by the Fund if thoseexpenses had not been paid from the Fund;and

• amend the Plan and the trust (the “Trust”) inrespect of the Fund so that the provisions of

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the Plan and the Trust relating to the deduc-tion of expenses from the Fund are consis-tent with the 1954 versions of the Plan andthe Trust.

On June 10, 2002, an application for party sta-tus was filed by William Fitz on behalf of theDCA Employees Pension Committee.

At the pre-hearing conference on October 15,2002, full party status was granted to the indi-viduals comprising the DCA Employees PensionCommittee, representing the members andretired members of the Plan. The pre-hearingconference was adjourned to allow the partiesto bring certain motions with respect to disclo-sure. The motion hearing is scheduled forDecember 6, 2002.

DCA Employees Pension Committee and William Fitz, Pension Plan for theEmployees of Kerry (Canada) Inc.,Registration Number 238915, FST FileNumber P0192-2002;On May 27, 2002, William Fitz on behalf of theDCA Employees Pension Committee, requesteda hearing regarding the Superintendent’s Noticeof Proposal, dated April 22, 2002, proposing torefuse to make an Order that:

• the Plan be wound up, effective December31, 1994;

• Kerry (Canada) Inc. pay to the pension fund(the “Fund”) of the Plan all employer con-tributions for which a contribution holidaywas taken since January 1, 1985, togetherwith income that would have been earnedby the Fund if those contributions had beenmade; and

• registration of the Revised and Restated PlanText dated January 1, 2000, and all amend-ments to the Plan included therein, be refused.

On June 5, 2002, an application for party statuswas filed by Kerry (Canada) Inc.

At the pre-hearing conference on October 15,2002, full party status was granted to Kerry(Canada) Inc. The pre-hearing conference wasadjourned to allow the parties to bring certainmotions with respect to disclosure. The motionhearing is scheduled for December 6, 2002.

Plumbers Local 463 Pension Plan,Registration Number 0598532, FST FileNumber P0190-2002;On May 16, 2002, the Board of Trustees of thePlumbers Local 463 Pension Plan Trust Fund(the “Board of Trustees”), requested a hearingregarding an Order, dated April 11, 2002, of theDeputy Superintendent, Pensions, made undersubsection 106(13) of the Pension Benefits Act.In his Order, the Deputy Superintendentordered that the Board of Trustees pay the costof an examination, investigation or inquiry inrespect of the Plan and pension fund for thePlan; and the cost of any opinion, report or pro-fessional attestation prepared following theexamination, investigation or inquiry.

At the pre-hearing conference on October 7,2002, the parties requested a settlement confer-ence. At the settlement conference on November14, 2002, the parties settled the matter.

Robert Kerschbaumer (AFG Industries Ltd. Salaried PensionPlan, Registration Number 1070853), FST File Number P0197-2002;On September 4, 2002, Robert Kerschbaumer,requested a hearing regarding the DeputySuperintendent, Pensions, Notice of Proposaldated August 2, 2002, to make an Order undersubsection 78(1) of the Pension Benefits Act, con-senting to a payment out of AFG Industries Ltd.,Salaried Pension Plan, Registration Number1070853.

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The pre-hearing conference date is scheduledfor February 10, 2003.

Alan Bishop(Contributory Pension Plan for SalariedEmployees of McMaster UniversityIncluding McMaster Divinity College2000, Registration Number 1079920), FST File Number P0198-2002;On October 23, 2002, Alan Bishop, requested ahearing regarding the Deputy Superintendent,Pensions, Amended Notice of Proposal datedSeptember 27, 2002, to make an Order undersubsection 78(1) of the Pension Benefits Act, con-senting to a payment out of the ContributoryPension Plan for Salaried Employees ofMcMaster University Including McMasterDivinity College 2000, Registration Number1079920.

The pre-hearing conference date is pending.

Slater Steel Inc. Pension Plan forCorporate Employees and SalariedEmployees of the Hamilton Specialty BarDivision, Registration Number 308338,FST File Number P0203-2002On October 31, 2002, Slater Steel Inc., requesteda hearing regarding the Deputy Superintendent,Pensions, Notice of Proposal dated September27, 2002, to make an Order under section69(1)(d) of the Pension Benefits Act, that the Planbe wound up in part in relation to those mem-bers and former members of the Plan whoceased to be employed by Slater Steel Inc. effec-tive from March 13, 1998 to January 26, 2000 asa result of the reorganization of the business ofSlater Steel.

The pre-hearing conference date is pending.

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• Revised Retirement Plan for Employeesof the Allen-Bradley Division ofRockwell International of Canada(now the Pension Plan for Employeesof Rockwell Automation Canada Inc.),Registration Number 321554 and the Pension Plan for Salaried andManagement Employees of RelianceElectric Limited, Registration Number292946, FST File Number P0051-1999; At a pre-hearing conference on July 6, 1999,the matter was adjourned sine die.

• The Retirement Plan for SalariedEmployees (Consumers Foods) ofGeneral Mills Canada, Inc., RegistrationNumber 342042, FST File NumberP0058-1999; Matter continues to beadjourned sine die pending the outcome of the Monsanto case.

• Gerald Menard (Public Service PensionPlan, Registration Number 208777 andthe Ontario Municipal Employees’Retirement System “OMERS”,Registration Number 345983), FST FileNumber P0071-1999; Matter adjournedsine die at a pre-hearing conference onFebruary 21, 2000.

• Consumers’ Gas Ltd., RegistrationNumber 242016, FST File Number P0076-1999; At the pre-hearing conference on June27, 2000, the matter was adjourned sine diepending the outcome of the Monsanto case.

• Schering-Plough Healthcare ProductsCanada Inc. Salaried Employees’Pension Plan, Registration Number297903, FST File Number P0085-1999;Matter was adjourned sine die pending theoutcome of the Monsanto case.

• Eaton Yale Limited Pension Plan forSalaried Employees of Cutler-HammerCanada Operations, RegistrationNumber 440396, FST File NumberP0117-2000; At the request of the parties,this matter was adjourned sine die pendingthe outcome of the Monsanto case.

• Cooper Industries (Canada) Inc.,Registration Number 0240622, FST FileNumber P156-2001; The pre-hearing con-ference for May 27, 2002 was adjourned to adate to be set at the request of the parties,pending the outcome of the Monsanto case.

• Pension Plan for the Employees ofDyment Limited, Registration Number0242735, FST File Number P0157-2001;The April 15 and 16, 2002 hearing dates wereadjourned at the parties’ request so that set-tlement discussions may continue.

• Crown Cork & Seal Canada Inc.Registration Numbers 474205, 595371& 338491, FST File Number P0165-2001;The parties agreed to adjourn this matter sinedie pending discussions between the parties.

• James MacKinnon (Labourers’ PensionFund of Central and Eastern Canada),Registration Number 573188, FST FileNumber P0167-2001; On July 10, 2002, thehearing dates were adjourned sine die on con-sent of the parties.

The following cases are Adjourned sine die

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Financial HardshipApplication to the Superintendent of Financial Services for Consent to Withdraw Money from aLocked-in Retirement Account, Life Income Fund or Locked-in Retirement Income Fund based onFinancial Hardship.

FST File Number Superintendent of Financial Services’ Notice of Proposal Comments

U0193-2002 To Refuse to Consent, Reasons for Decision, dated June 24, 2002 dated August 29, 2002

U0194-2002 To Refuse to Consent, Reasons for Decision, dated July 8, 2002 dated August 29, 2002

U0196-2002 To Refuse to Consent, Withdrawn, dated June 26, 2002 September 26, 2002

U0200-2002 To Refuse to Consent, Written Submissions dated September 23, 2002 Being Exchanged

U0202-2002 To Refuse to Consent Written Submissionsdated October 7, 2002 Being exchanged

Decisions to be Published

LECO

Imperial Oil (1)

Imperial Oil (2)

Independent Order of Foresters

Samsonite Canada Inc.

U0193-2002 Reasons

U0194-2002 Reasons

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INDEX NO.: FST File Number LECO

PLAN: Revised Pension Plan of Leco Inc., Registration Number 272849

DATE OF DECISION: June 17, 2002

PUBLISHED: Bulletin 12/1 and FSCO website

Financial Services Tribunal Decisions with Reasons

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(Note: Only FST decisions pertaining to pensions areincluded in this section.)

(Note: In this section, “Commission” refers to theFinancial Services Commission of Ontario.)

IN THE MATTER OF the Pension Benefits Act,R.S.O. 1990, c. P.8 and Regulation 909, R.R.O.1990;

AND IN THE MATTER OF an application byMcColl-Frontenac Petroleum Inc. for an amend-ed consent of the Pension Commission ofOntario to payment of an amended amount ofsurplus from the Revised Pension Plan of LecoInc., Registration Number 272849 (the “Plan”);

AND IN THE MATTER OF a Hearing held bythe Pension Commission of Ontario;

BEFORE:

C.S. (Kit) Moore Chair

Don Collins Member

Judith Robinson Member

Joyce Stephenson Member

David Wires Member

HEARING DATE:May 31, 2002

HELD AT:

Toronto, Ontario

THE DECISION, BACKGROUND AND REASONS

THE DECISION

At its meeting of May 31, 2002, the PensionCommission of Ontario (the “PCO”) consideredan application by McColl-Frontenac PetroleumInc. (the “Company”) for an amended consentpursuant to subsection 78(1) of the PensionBenefits Act, R.S.O. 1990 c.P.8 (the “Act”) andsection 8(2) of Regulation 909, R.R.O. 1990, asamended (the “Regulation”), to a payment ofsurplus to the Company. The payment request-ed represents the surplus assets attributable tothe Ontario portion of the Plan, based on astatement prepared by the Company’s actuary.

On May 31, 2002, the PCO consented, pursuant to subsection 78(1) of the Act and subsection 8(2) of the Regulation, to a payment of surplus to the Company, in the amended amount of$637,581.54 as at December 31, 2000, plus invest-ment earnings thereon to the date of payment.

The background and reasons for this decisionare set out below.

BACKGROUND

At an earlier meeting held June 26, 1997, thePCO had approved the Company’s originalapplication for payment of 100% of the Plan’ssurplus assets, in accordance with the procedur-al framework in the Ontario Act and pursuant toits powers as the “major authority” under theterms of the Memorandum of ReciprocalAgreement entered into in 1968 by the PCO,

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the Régie des rentes du Québec (the “Régie”)and other provincial pension authorities (the“Reciprocal Agreement”).

The Plan included members with employmentin Ontario and Québec, but the majority ofactive members reported to work in Ontario.Therefore, under the terms of the ReciprocalAgreement, the Plan was registered solely withthe PCO which, as the major authority underthe terms of the Reciprocal Agreement, hadauthority to make all decisions in relation tothe Plan.

The Régie brought an application in theSuperior Court of Justice Divisional Court (the“Court”) for judicial review of the PCO deci-sion. In August of 2000, the Court quashed thePCO’s decision insofar as it affected Québecmembers, remitted the matter to the PCO forreconsideration, and directed the PCO to pro-vide written reasons for any further decision.

On or about November 26, 1997, the Régieexempted itself from the operation of theReciprocal Agreement in relation to the Plan. Asa result, the PCO no longer has authority tomake decisions about the Plan’s surplus relatingto Québec members, as the source of thatauthority was the Reciprocal Agreement.

In December of 2000, the PCO directed theCompany to prepare a new report and amendedapplication to the PCO. The Company’s actuaryprepared and submitted an actuarial statementidentifying the liabilities and surplus assetsrelating to the Québec members, for use in thePCO’s reconsideration of this matter.

REASONS

The Court’s quashing of the PCO’s decision ofJune 26, 1997, and the Court’s direction to thePCO, was only insofar as the decision affectedQuébec Plan members. We have not revisitedthat decision as it related to Ontario Plan mem-bers, nor did we require further notice to beserved on those members, as they had beengiven notice of the Company’s original applica-tion for refund of surplus assets. Also, as theRégie has exempted itself from the operation ofthe Reciprocal Agreement with respect to thePlan, we no longer have authority to make deci-sions regarding the Québec portion of the Plan.As a result, in reconsidering this matter, wedirected our attention to the split of surplusassets between the Québec and Ontario portionsof the Plan.

The Company’s actuary provided a letter datedMarch 16, 2001, which included the followingstatement:

Proportionately 64.74% of the value of thebenefit entitlements are attributable toQuebec members or beneficiaries. This lettercan be used as the basis for

apportioning the final Plan surplus to the Planliabilities of Quebec members and beneficiaries.

The Régie subsequently notified the Company,in a letter dated August 3, 2001, that the Régiewould agree to supervise the windup process forQuébec members in accordance with the con-tents of that letter. In a letter dated September5, 2001, to the PCO, the Régie indicated theywere satisfied with the proposed attribution, asset out in the actuary’s March 16th letter. We aresatisfied with this proposal for apportioning thePlan surplus, which will result in an attributionof 35.26% of Plan surplus, or $637,581.54 as atDecember 31, 2000, to the Ontario portion ofthe Plan.

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In making our decision, we noted that the inter-ested parties or their representatives have beeninformed that this hearing would be held, andhave been sent a copy of the PCO staff reportdated April 8, 2002, prepared by Ms. Lynda Ellis.We are not aware of any objections raised to theCompany’s application for our amended consent.

In addition, all pension benefits for Ontariomembers, former members and other beneficia-ries of the Plan have been paid. The applicationsatisfies all other appropriate requirements ofthe Act and Regulation and the PCO’s publishedpolicies in respect of such applications.

For these reasons, we give our amended consentto a payment of surplus to McColl-FrontenacPetroleum Inc., in the amended amount of$637,581.54 as at December 31, 2000, plus invest-ment earnings thereon to the date of payment.

DATED at Toronto this 17th day of June, 2002.

C.S. (Kit) MooreChair

Judith RobinsonMember

Don CollinsMember

David WiresMember

Joyce StephensonMember

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INDEX NO.: FST File Number U0193-2002

DATE OF DECISION: August 29, 2002


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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated June 24, 2002, withrespect to an application for withdrawal ofmoney from a life income fund, locked-inretirement account, or a locked-in retirementincome fund (a “locked-in account”) based onfinancial hardship;

AND IN THE MATTER OF a Hearing undersubsection 89(8) of the Act;

REASONS

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consentdated June 24, 2002, that denied theApplicant access to funds associated withhis Life Income Fund (the “locked-inaccount”). The Applicant had applied towithdraw these funds, pursuant to subsec-tion 67(5) of the Act, which reads as follows:

67.-(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirementsavings arrangement of a type that is pre-scribed for the purposes of this subsection if

the Superintendent is satisfied as to the exis-tence of such circumstances of financialhardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat the low income circumstance of finan-cial hardship prescribed by s. 87(1)7 ofRegulation 909, R.R.O. 1990, as amended(the “Regulation”) is not satisfied. The issueto be determined by the Tribunal is whetheror not the Superintendent should have con-sented to the application.

3. This application included information pro-vided by the Applicant in Part 2A —Withdrawal Based on Low Income. Anapplication submitted on this basis is sub-ject to the circumstances of financial hard-ship set out in paragraph 7 of subsection87(1) of the Regulation as follows:

87.-(1) The following circumstances offinancial hardship are prescribed for thepurposes of subsection 67(5) of the Act:

7. The owner’s expected total income fromall sources before taxes for the 12-monthperiod following the date of signing theapplication is 66 2⁄3 per cent or less of theYear’s Maximum Pensionable Earnings[“YMPE”] for the year in which the applica-tion is signed.

4. This application was signed in the year2002, for which the Canada Pension Plan’sYMPE was $39,100, in which case 66 2⁄3 percent of the YMPE would be $26,066.67. TheApplicant has stated that his expected totalincome from all sources before taxes for the

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12-month period following the date of sign-ing the application is $30,365.00, whichexceeds $26,066.67. In this case, the lowincome circumstances of paragraph 87(1)7of the Regulation are not satisfied, with theresult that the application does not meet therequirements of subsection 67(5) of the Act.

5. The Applicant has requested that an excep-tion be made in this case, given the circum-stances of his indebtedness and the amountof funds in his locked-in account. As notedin the Superintendent’s submission, thisTribunal does not have authority to directthe Superintendent to allow an applicationfor withdrawal from a locked-in accountthat does not meet the requirements of theRegulation. In the circumstances, theTribunal must affirm the Superintendent’sNotice dated June 24, 2002, in respect ofthis application.

ORDER

The Superintendent’s Notice of Proposalto Refuse to Consent, dated June 24,2002, is affirmed and this application isdismissed.

DATED at Toronto, this 29th day of August,2002.

Mr. C.S. MooreMember, Financial Services Tribunal

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INDEX NO.: FST File Number U0194-2002

DATE OF DECISION: August 29, 2002


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AND IN THE MATTER OF a Notice ofProposal to Refuse to Consent by theSuperintendent of Financial Services (the“Superintendent”), dated July 8, 2002, withrespect to an application for withdrawal ofmoney from a life income fund, locked-inretirement account, or a locked-in retirementincome fund (a “locked-in account”) based onfinancial hardship;

AND IN THE MATTER OF a Hearing undersubsection 89(8) of the Act;

REASONS

1. The Applicant in this matter requested ahearing in respect of the Superintendent’sNotice of Proposal to Refuse to Consent,dated July 8, 2002, that denied theApplicant access to funds associated with alocked-in account. The Applicant hadapplied to withdraw these funds, pursuantto subsection 67(5) of the Act, which readsas follows:

67.–(5) Despite subsections 1 and 2, uponapplication, the Superintendent may con-sent to the commutation or surrender, inwhole or in part, of a prescribed retirementsavings arrangement of a type that is pre-scribed for the purposes of this subsection if

the Superintendent is satisfied as to the exis-tence of such circumstances of financialhardship as may be prescribed.

2. The Superintendent’s ground for denial wasthat this application (the “CurrentApplication”), which was made on the basisof low income, was made within 12 monthsafter the date of another successful applica-tion (the “Previous Application”) made onthe basis of low income, contrary to theconditions imposed by subsections 89(4)and 89(5) of Ontario Regulation 909 asamended (the “Regulation”), as follows:

89.–(4) Only one application may be madeduring each 12-month period.

(5) An unsuccessful application is notcounted for the purposes of subsection (4).

3. The issue to be determined by the Tribunalis whether or not the Superintendent shouldhave consented to the Current Application.

4. The Previous Application was signed by theApplicant on December 18, 2001. OnJanuary 2, 2002, the Superintendent con-sented to withdrawal of funds from theApplicant’s locked-in account, on the basisof the Applicant’s low income. Therefore,the Previous Application was a successfulapplication.

5. On June 12, 2002, the Applicant signed theCurrent Application, in which she appliedto withdraw additional funds from herlocked-in account on the basis of lowincome. As this application was made with-in 12 months after the successful Previous

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Application, which was made on the basis oflow income, the Current Application doesnot meet the conditions set out in subsec-tions 89(4) and 89(5) of the Regulation.

6. Although the Applicant’s written submis-sion provides compelling evidence of herfinancial hardship, this Tribunal does nothave the authority to direct the Superin-tendent to allow an application that does not meet the requirements of theRegulation. Once 12 months have passedsince the date of the successful PreviousApplication, a further application for with-drawal of locked-in funds may be submittedfor consideration by the Superintendent, ifthe circumstances of the Applicant are suchthat she wishes to do so.

7. In the circumstances, the Tribunal mustaffirm the Superintendent’s Notice datedJuly 8, 2002, in respect of the CurrentApplication.

ORDER

The Superintendent is hereby directedto carry out the proposal contained inthe Notice of Proposal to Refuse toConsent, dated July 8, 2002, directed tothe Applicant.

DATED at Toronto, this 29th day of August, 2002.

Mr. C. S. MooreMember, Financial Services Tribunal

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INDEX NO.: FST File Number P0130-2000

PLAN: Imperial Oil Limited Retirement Plan (1988), Registration Number 347054 (the “IOL Plan”) and the Imperial Oil Limited Retirement Plan for Former Employees of McColl-Frontenac, Registration Number 344002 (the “MFI Plan”)

DATE OF DECISION: September 11, 2002


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AND IN THE MATTER OF partial wind upreports submitted by Imperial Oil Limited tothe Superintendent of Financial Servicesrespecting the Imperial Oil Limited RetirementPlan (1988), Registration Number 347054 (the“IOL Plan”) and the Imperial Oil LimitedRetirement Plan for Former Employees ofMcColl-Frontenac, Registration Number 344002(the “MFI Plan”);

AND IN THE MATTER OF a Hearing in accor-dance with subsection 89(8) of the Act;

BETWEEN:

IMPERIAL OIL LIMITEDApplicant-and-SUPERINTENDENT OF FINANCIAL SERVICESRespondent

BEFORE:

Mr. Colin H.H. McNairnVice Chair of the Tribunal and Chair of the Panel

Mr. Louis ErlichmanMember of the Tribunal and of the Panel

Mr. William M. Forbes Member of the Tribunal and of the Panel

APPEARANCES:

For Imperial Oil Limited:Ms. Lindsay P. Hill

For the Superintendent of Financial Services:Ms. Deborah McPhail

HEARING DATE:July 24, 2002

REASONS FOR ORDER

The BackgroundThis proceeding was initiated by the Applicant,Imperial Oil Limited, by filing a Notice ofRequest for Hearing with the Tribunal. TheRequest calls into question a Notice ofProposal by the Superintendent of FinancialServices (the “Superintendent”), dated October3, 2000, to refuse to approve partial wind upreports filed by the Applicant in connectionwith the partial wind up of two of its pensionplans, namely its IOL Plan and its MFI Plan(the “Plans”). Those wind ups had beenordered by the Superintendent because of the reorganization of the Applicant and the

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closure of one its refineries. The Plans were tobe wound up in relation to those members andformer members of the Plans who ceased to beemployed by the Applicant, as a result of theseactions, during the period beginning February4, 1992 and ending on the later of June 30,1995 and the date the last member employedat the refinery ceased employment (the “PartialWind Up Period”). We refer to this group ofmembers and former members as the “PartialWind Up Group”.

The stated grounds for the Notice of Proposalinclude the following;

• the reports do not reflect the liabilities associ-ated with all of the members of the Planswhose employment with the Applicant wasterminated during the Partial Wind UpPeriod; and

• the reports fail to provide “grow-in benefits,”pursuant to section 74 of the Act, in respectof all members of the Plans affected by thepartial wind ups who earned benefits whileworking in Ontario and whose combinationof age and years of service with the Applicantis at least 55.

By a notice of motion dated June 29, 2001, theApplicant moved for an order of the Tribunaldirecting the Superintendent to answer certaininterrogatories that it had posed and to producethe documents requested with those interroga-tories (the “Initial Motion”). That motion washeard on July 25, 2001. The Tribunal disposedof the Initial Motion by order, dated September10, 2001, directing the Superintendent torespond to the interrogatories and requests for production within six weeks of the order,subject only to the qualification that theSuperintendent need not produce any docu-ments or reveal any communications to whichthe law of privilege applies. That order was sup-

ported by written reasons of the Tribunal (seethe Pension Bulletin, vol. 11, issue 1 (Jan., 2002),at pp. 155-160).

Following the order, the Superintendent provid-ed responses to the interrogatories and requestsfor production by letters to counsel for theApplicant dated October 23, 2001 andNovember 15, 2001, but the Applicant hastaken the position that the responses are defi-cient. Accordingly, by further notice of motion,dated June 7, 2002, the Applicant moved for anorder of the Tribunal directing theSuperintendent to provide further and betteranswers to certain of its interrogatories and toproduce the documents referred to therein (the“Current Motion”).

The Issues in the ProceedingFor the purposes of both the Initial Motion andthe Current Motion, the parties agreed that the issues in this proceeding that are relevant to the motions should be framed and groupedas follows:

Issue 1(a) Did any members or former members of the

Plans who ceased to be employed by theApplicant during the Partial Wind Up Periodas set out in the Notice of Proposal cease tobe employed as a result of the reorganiza-tion or discontinuance of all or part of theApplicant’s business, if their circumstancesfell within one of the following:

(i.) employees whose fixed term contractof employment was complete by itsterms (e.g. summer students, co-opstudents, and employees hired on acontract basis for a specified period of time);

(ii.) employees who became disabled andreceived disability benefits;

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(iii.) employees who allegedly voluntarilyresigned;

(iv.) employees who were transferred to anaffiliated company that did not partic-ipate in the Plans;

(v.) employees who retired under theterms of the Plans at normal retire-ment age;

(vi.) employees who retired under the dis-ability retirement provisions of thePlans;

(vii.) employees whose employment wasterminated as a result of death; and

(viii.) employees whose employment wasallegedly terminated for cause.

(b) Do the doctrines of legitimate expectation,abuse or improper exercise of discretion orestoppel apply in the circumstances of thiscase with respect to the issue of which mem-bers or former members must be included inthe Partial Wind Up Group?

Issue 2(a) Does the Act require the “grow-in benefits”

under section 74 be granted to members and former members of the Partial Wind UpGroup who were employed in a provinceother than Ontario or Nova Scotia on thedate that their employment ceased, in rela-tion to any prior periods of employmentwith the Applicant in Ontario or NovaScotia? If so, on what basis should such ben-efits be calculated?

(b) If the answer to issue (a.) is “yes”, can peri-ods of employment in provinces otherthan Ontario or Nova Scotia be excludedwhen calculating the “grow-in benefits”under section 74 of the Act and section 79of the Pension Benefits Act (Nova Scotia)payable to all members and former mem-

bers whose employment ceased in Ontarioor Nova Scotia?

(c) If the answer to issue (a.) is “yes”, do thedoctrines of legitimate expectation, abuse or improper use of discretion or estoppelapply in the circumstances of this case withrespect to the calculation of “grow-in bene-fits” under section 74 of the Act and section79 of the Pension Benefits Act (Nova Scotia)for members who ceased to be employees inthe circumstances set out in issue (a.)?

There is a third issue that will have to beaddressed at the main hearing in this proceed-ing, but none of the interrogatories or requestsfor production relate to that issue.

The Interrogatories and Requests for Production

Re: Issue 1The first set of interrogatories and requests forproduction to which the Applicant continues toinsist on responses or more complete responsescan be summarized as follows:

• how many partial plan wind ups wereordered by the Superintendent during theperiod January, 1988 to October, 2000 (the“sample period”) pursuant to,

• paragraph 69(1)(d) of the Act (significantnumber of members of a plan ceasing to beemployed as a result of discontinuance orreorganization of business),

• paragraph 69(1)(e) of the Act (discontinu-ance of a significant portion of the busi-ness at a specific location)?

• how many situations were there in respect ofsuch wind ups (ordered under each of thenoted paragraphs of the Act) where employ-ees were terminated during the Partial WindUp Period for the following reasons:

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• the expiry of a fixed term contract ofemployment;

• disability;

• voluntary resignation;

• transfer to an affiliated company that didnot participate in the Plans;

• retirement at normal retirement age underthe terms of the Plans;

• death; and

• cause for dismissal?

• how many wind up reports (in respect ofwind ups ordered under each of the notedparagraphs of the Act) included employeesin any such category in the partial wind up group?

• did the Superintendent refuse to approve anypartial wind up reports (in respect of windups ordered under each of the noted para-graphs of the Act) because the employees inany such category were not included in therelevant partial wind up group?

Re: Issue 2The second set of interrogatories and requestsfor production to which the Applicant contin-ues to insist on responses or more completeresponses can be summarized as follows;

• how many of the partial wind up reports filedwith the Superintendent during the sampleperiod provided, and how many did not pro-vide, for “grow-in benefits” for employeeswho were employed in Ontario or NovaScotia at some time but were employed else-where at the time their employment ceasedand how many of the reports providing, andof the reports failing to provide, such benefitswere approved and how many refusedapproval (giving the name and date of theplans in respect of which there was a refusal)and how many eliminated non-Ontario and

non-Nova Scotia service from their calcula-tion of “grow-in benefits”?

• how many of the partial wind up reports,filed with the Superintendent during thesample period, included in the partial windup group employees who were employed inOntario or Nova Scotia when their employ-ment ceased but were employed elsewhereduring some period of their employment,how many of these reports did not providefor “grow-in benefits” to such employees inrespect of their non-Ontario and non-NovaScotia service, and how many of these reportswere approved and how many refusedapproval (giving the name and date of theplans in respect of which there was a refusal)?

• provide copies of all memoranda, meetingnotes and other documents prepared by theSuperintendent and her staff and any priorpractices regarding the provision of “grow-inbenefits” to employees in the circumstancesdescribed in the first paragraph, including thereduction of benefits for non-Ontario andnon-Nova Scotia service, and with respect to the reduction of “grow-in benefits” toemployees in the circumstances described inthe second paragraph.

The PurposeOn the Initial Motion, the Applicant main-tained that the responses to the interrogatoriesand the requests for production were relevant tothe present case in the determination, particu-larly, of issues 1(b) and 2(c) referred to above.Among other things, they might reveal whetherthere was a practice on the part of theSuperintendent,

• to permit the exclusion of any of the cate-gories of plan members described in issue 1(a)from partial wind up groups,

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• to treat final employment by a plan sponsorin Ontario or Nova Scotia, rather thanemployment by that plan sponsor at sometime in Ontario or Nova Scotia, as the criteri-on for inclusion in partial wind up groups, or

• to reduce “grow-in benefits” on account ofservice outside Ontario or Nova Scotia.

The sample period of January, 1988 to October,2000, to which a number of the interrogatoriesrelate, was apparently chosen by the Applicanton the basis that “grow-in benefits” on a windup were first added to the Act at the beginningof the period and the Notice of Proposal in thismatter was issued at the end of the period.

AnalysisThe Superintendent filed an affidavit of Ms.Lynda Ellis, Manager, Technical Consulting ofthe Pension Plans Branch of the FinancialServices Commission of Ontario, in response tothe Current Motion, on which she was subjectto cross-examination by the Applicant. In heraffidavit, Ms. Ellis attests to the fact that, fol-lowing the Tribunal’s decision on the InitialMotion, she went through the records of thePension Plans Branch to determine how manypartial wind ups were processed during the sam-ple period and the state of the records withrespect to those partial wind ups. As a result ofthat exercise, she determined that the records(which are partly paper and partly electronic)do not differentiate between partial wind upsthat were ordered by the Superintendent andthose that were not and do not disclose theparagraph of the Act that may have providedthe basis for wind ups ordered by theSuperintendent. She estimated that there were1047 partial wind up cases, including both vol-untary and directed wind ups, that wereprocessed during the sample period. On cross-examination, Ms. Ellis said that the electronic

database of the Pension Plans Branch onlyreached back to the end of 1992 so that the fig-ure of 1047 partial wind up cases included a“best guess” for that part of the sample periodthat preceded the electronic database.

To break down the partial wind up cases inorder to determine those that are relevant to theinterrogatories and to uncover any evidence ofthe Superintendent’s practices that theApplicant was after, it appears that all of theestimated 1047 files would have to be exam-ined. Given the size of the files, rangingbetween a minimum of 75 pages and a maxi-mum of several bankers’ boxes, Ms. Ellis esti-mated that it would take an experienced andtrained employee of the Pension Plans Branchapproximately 13 weeks (523 hours) to 26weeks (1047 hours) of work to go through thefiles. She also noted that approximately 40% ofthe files were stored offsite in various locationsand that, for this and other reasons, it wouldtake about three weeks to assemble the files for review.

Of course, the Superintendent should haveobtained all of the information that is now dis-closed by Ms. Ellis’ affidavit before the hearingon the Initial Motion and put it into evidenceon that occasion. That was not done and theonly excuse that was offered at the hearing onthe Current Motion was that theSuperintendent was confident that the InitialMotion would not be successful. Had the infor-mation in the affidavit been available on thehearing of the Initial Motion, we might havebeen persuaded to limit the number of files tobe reviewed for the purpose of answering theinterrogatories and even if we had not imposedsuch a limit, the interrogatories could havebeen answered by now on the basis of a fullreview of the files on Ms. Ellis’ estimate of thetime that would be involved in that review.

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As we indicated in our reasons for decision onthe Initial Motion, a threefold test is to beapplied in determining whether answers tointerrogatories and the disclosure of documentsshould be ordered, in particular:

• is the information sought arguably relevantto an issue in the proceeding that is not afrivolous issue,

• is the information sufficiently particularizedto facilitate a response, and

• is the information of a kind that does notenjoy the benefit of privilege?

As this Tribunal said in its reasons for ordersmade in response to a motion to require the disclosure of documents and responses to interrogatories in Monsanto Canada Inc, v.Superintendent of Financial Services (see PensionBulletin, vol. 8, issue 2 (Sept. 1999), at p. 79),the Tribunal “should, generally, be prepared tomake a disclosure order against a party to a pro-ceeding before it, requiring the production ofdocuments or answers to interrogatories” if theabove noted test is satisfied (emphasis added).

On the Current Motion, the Superintendentmaintained that there had been substantial dis-closure, particularly in response to theApplicant’s second set of interrogatories (relat-ing to issue 2), and that further disclosure wasunnecessary to assist the Applicant in itsexpected arguments at the main hearing inthis proceeding, that the information stillbeing sought was irrelevant, and that any lim-ited value of such information was outweighedby the onerous nature of the requests. TheApplicant maintained that the Superintendentwas, in effect, attempting to re-argue the InitialMotion which, it said, should not be permittedat this stage.

We do not think that substantial compliancewith an order to respond to interrogatories or to

produce documents is sufficient and we are notprepared to re-open the question of the rele-vance of the information that is being soughtby the Applicant. In our reasons on the InitialMotion, we concluded that the informationsought by the Applicant, through the interroga-tories and requests for production, was arguablyrelevant. However, we are prepared to consider,albeit it at this late stage of the process, thehardship involved in obtaining the informationsought by the Applicant when set against thepotential value of the information to theApplicant for the purpose for which it may beused in this proceeding. While that hardshipwas considered on the Initial Motion, it was onthe basis of a general allegation of hardship,without the benefit of any precise evidence ofthat hardship, which has now been brought for-ward through Ms. Ellis’ affidavit.

We note that disclosure need not be “all or noth-ing” and should there be particular hardship inproducing all the information that is arguablyrelevant, a practical solution may be to narrowthe scope of the disclosure order (as in FirstChoice Capital Fund Ltd. v. First Canadian CapitalCorp., [2000] S.J. No. 574, at p. 5 (Sask. Q.B.)).

Having regard to the detailed evidence that wehave now received, through Ms. Ellis’ affidavit,as to what would likely be involved in respond-ing to the interrogatories about partial wind upsduring the sample period, we think that theSuperintendent should be entitled to respondon the basis of a review of one-half of the fileson partial wind up cases that were processedduring the period from January 1, 1993, theapproximate date from which the electronicdatabase was implemented, to October, 2000.The files to be reviewed should be selected onan arbitrary basis — in essence, every secondfile in the chronological, alphabetical or otherneutral order in which the files are recorded on

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the database so that the files reviewed will be arepresentative sample. If there is any disputebetween the parties as to the appropriatemethod of selecting the files for review, thematter may be spoken to before the chair of thepanel that has heard the Current Motion. Webelieve that this modified direction will provideinformation about the practices of theSuperintendent with a sufficient degree of preci-sion to enable the Applicant to use the informa-tion, depending on what it reveals, for theintended purpose.

Given the delays in this proceeding that havealready occurred as a result of disputes by theSuperintendent over the interrogatories andproductions that are the subject of the CurrentMotion, we believe that the time for response toany new order that we make on this Motionshould not extend beyond six weeks, which wasthe time for response to our order on the InitialMotion, even though this may impose somehardship on the Superintendent by requiringthe diversion of considerable resources to pro-viding a response in a timely manner.

We have yet to consider the third outstandinginterrogatory with respect to Issue 2 — moreaccurately a request for production of docu-ments, specifically memoranda, meeting notesand other documents relating to theSuperintendent’s position on the provision of“grow-in benefits” to employees who worked inOntario or Nova Scotia at some time and out-side those provinces at another time. TheSuperintendent has provided some material tothe Applicant in response to this request, asenclosures with letters to counsel for theApplicant dated April 18, 2001 and October 23,2001. In the second of these letters, theSuperintendent’s counsel has expressed a will-ingness to provide additional material inresponse to this request that consists of docu-

mentation indicating the approach taken by theSuperintendent on two particular partial windup cases, provided that the confidentiality ofthis material is maintained. We think that a reasonable assurance of confidentiality can besecured through an undertaking of confidential-ity by the Applicant. Failing agreement on theterms of such an undertaking, the chair of thispanel is prepared to entertain a motion for anorder of confidentiality that is brought forwardby either of the parties. Subject to the disclosureof this additional material, the Superintendentappears to have responded to our order on theInitial Motion as it relates to the disclosure ofmemoranda, meeting notes and other docu-ments. However, the Applicant is entitled topersist in its request for the disclosure of thismaterial so that the Superintendent continuesthe search for any additional material of thisnature with a view to its disclosure before thedeadline for responding to interrogatories andmaking productions that we impose in ourorder on the Current Motion.

Finally, the Applicant requested an order for therecovery of its costs on the Current Motion. Wewill deal with that request at the conclusion ofthe main hearing in this proceeding.

DispositionWe order the Superintendent to respond to theinterrogatories and requests for production towhich the Applicant continues to insist onresponses, as more particularly set out inAppendix “A” to the Applicant’s notice ofmotion, within six weeks of the date of thisorder, subject only to the qualifications that theSuperintendent need not produce any docu-ments or reveal any communications to whichthe law of privilege applies and that theresponses to the interrogatories may be basedon a review of one half of the files on partial

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wind ups that were processed during the periodJanuary 1993 to October 2000.


Colin H.H. McNairn, Vice Chair of the Tribunal and Chair of the Panel

Louis Erlichman, Member of the Tribunal and of the Panel

William M. Forbes, Member of the Tribunal and of the Panel

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PLAN: The Independent Order of Foresters Fieldworkers’ Pension Plan,Registration No. 0354399 (the “Plan”)



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AND IN THE MATTER OF a proposal by theSuperintendent of Financial Services (the“Superintendent”), pursuant to the Act, torefuse to consent to the payment of surplus outof The Independent Order of ForestersFieldworkers’ Pension Plan, Registration No.0354399 (the “Plan”);

AND IN THE MATTER OF a proposal by theSuperintendent, pursuant to the Act, to refuseto approve a wind up report in respect of thePension Plan;

AND IN THE MATTER OF a hearing in accor-dance with subsection 89(8) of the Act;

BETWEEN:

THE INDEPENDENT ORDER OFFORESTERSApplicant-and-SUPERINTENDENT OF FINANCIAL SERVICES and IRVIN GRAINGERRespondents

BEFORE:


Mr. Louis Erlichman Member of the Tribunal and of the Panel

Ms. Heather GavinMember of the Tribunal and of the Panel

APPEARANCES:

For The Independent Order of Foresters:Ms. Lisa J. MillsMs. Elizabeth Brown

For the Superintendent of Financial Services:Mr. Mark BaileyMs. Deborah McPhail

HEARING DATE:June 18, 2002

REASONS FOR DECISION OF MR. MCNAIRN

BackgroundThis proceeding was commenced as a result of a request for hearing filed on April 12, 2001by The Independent Order of Foresters (the“IOF”) challenging a notice of proposal of the Superintendent of Financial Services (the“Superintendent “) dated March 19, 2001 (the “Notice of Proposal”). In that Notice, theSuperintendent proposes to refuse consent to anapplication by the IOF for the payment of sur-plus from the Independent Order of ForestersFieldworkers’ Pension Plan (the “Plan”), on itswind up effective December 31, 1997, and torefuse approval of the wind up report in respect

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of the Plan filed by the IOF. The stated basis forthe proposed refusals is two-fold;

• the IOF had not demonstrated that the assetsin the pension fund, representing the excessover and above the basic benefit entitlementsof members and former members of the Planand the anticipated expenses of wind up, con-stituted surplus for the purposes of the PensionBenefits Act, as amended (the “Act”), and

• the assets held in the pension fund, includingthose excess assets, were subject to a trust forthe benefit of the members, in which case thePlan could not be said to provide for the pay-ment of surplus to the IOF.

The excess assets were estimated to have a valueof $1,433,760 as at December 31, 1999.

The IOF’s application for the payment of sur-plus was made to the Superintendent on thebasis that at least two-thirds of the Plan mem-bers had consented to a surplus distributionproposal under which the IOF would share inthe surplus on a 50-50 basis with the membersand former members of the Plan. Subsection79(3) of the Act requires, among other things,that before an application for the payment ofsurplus on the wind up of a pension plan can beapproved, the Superintendent must be satisfiedthat the pension plan has a surplus and thepension plan must provide for the payment ofsurplus to the employer on wind up.

The issue that was the subject of the hearingbefore the Tribunal is whether the Plan providesfor the payment of surplus to the IOF. TheTribunal was invited by the parties to determinethis issue on the assumption that the excessassets in the pension fund for the Plan representsurplus. The determination of whether the latterassumption is correct was left for a subsequenthearing as necessary.

Analysis1. The Nature of the Pension Fund at the

Inception of the Plan in 1953

In his written representations, Mr. Grainger, aformer member of the Plan who was grantedparty status in this proceeding, submitted thatthe amounts contributed by the IOF and thePlan members from time to time, pursuant tothe Plan, and the income generated from thosecontributions (together comprising the“Pension Fund”) constituted trust funds for thebenefit of the members, who were, therefore,entitled to any surplus. This submission wasbased on a provision of the Plan to the effectthat the Pension Fund was to be used only forthe purpose of the payment of the benefits pro-vided under the Plan. This exclusive benefitprovision is found in subsection 7(2) of theoriginal Plan and was carried forward in subse-quent versions of the Plan. However, the Plandoes not say specifically that the Pension Fundis to be held in trust nor does it make referenceto a trustee in respect of that Fund. Indeed, theevidence in this case was that until 1995 theassets comprising the Pension Fund, althoughaccounted for separately, were held as part ofthe assets of the IOF, in accordance with theConstitution and Laws of the IOF. One of theelements essential to the creation of a validtrust is an intention to create a trust. There wasno evident intention, on the part of the IOF, tocreate a trust in respect of the Pension Fundupon the establishment of the Plan. An exclu-sive benefit provision similar to that containedin the Plan has been held to be insufficient, ofitself, to establish such an intention; see Schmidtv. Air Products Canada Ltd., [1994] 2 S.C.R. 611,at p. 666, and Howitt v. Howden Group CanadaLtd. (1999), 179 D.L.R. (4th) 423, at pp. 429-430(Ont. C.A.).

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I have concluded, therefore, that the PensionFund was not subject to a trust at the inceptionof the Plan. Moreover, there were no changes tothe Plan or to the funding of the Plan before1995 that were alleged, by any of the parties, tohave the effect of imposing a trust on thePension Fund.

2. Entitlement to Surplus under the OriginalPlan

Section 9 of the original Plan provided as follows:

In the event of the discontinuance of the[P]lan, the [Pension] Fund shall immediatelyvest in the members and shall be distributedor otherwise dealt with for their benefit insuch equitable manner as the SupremeCourt [of the IOF] may with the advice ofthe actuary by resolution decide.

This provision remained in place withoutchange until 1990, when the Plan was amendedwith effect from January 1, 1988. The validity ofthat amendment, as it purports to affect theabove noted provision, is considered below (seesection 3).

The authority of the Supreme Court of the IOFto decide, on the advice of the actuary, upon anequitable manner by which the distribution orother disposition of the Pension Fund shouldoccur cannot reasonably be construed as givingthe Supreme Court the power to direct any sur-plus in the Pension Fund to be applied for thebenefit of the IOF. Rather, the Supreme Court’sauthority should logically be interpreted as sim-ply allowing it to adopt a plan for the distribu-tion or other disposition of the Pension Fundthat provides in an equitable way for the deter-mination of the extent of participation of thevarious members.

I have concluded that the Plan did not providefor the payment of surplus to the IOF and thatthis remained the position at the time of the

amendment to the Plan that was adopted in1990.

3. The Validity of the Plan Amendment Pro-viding for the Payment of Surplus to the IOF

The Plan was amended in 1990 with effect fromJanuary 1, 1988 (the “1988 Plan Amendment”)to provide, among other things, for the pay-ment of any surplus in the Pension Fund to theIOF. I refer to this particular provision of the1988 Plan Amendment as the “1988 SurplusAmendment”. The Superintendent challengedthe 1988 Surplus Amendment as unauthorized,and therefore without effect, on two grounds.

First, the Superintendent maintained that thePlan was part of the Constitution and Laws of the IOF and, as such, could only be amended bythe Supreme Court (now called the InternationalAssembly) of the IOF. The 1988 Plan Amendmentwas apparently adopted by the Executive Council(now called the Board of Directors) of the IOFpursuant to a general delegation of authority bythe Supreme Court to the Executive Council.Although there was some confusion in the evi-dence on this point, I have concluded that thePlan was not part of the Constitution and Laws ofthe IOF, although the Pension Fund was referredto therein as one of the IOF’s funds. Accordingly,the Executive Council had the authority toamend the Plan under the general delegation ofauthority from the Supreme Court.

Second, the Superintendent maintained thatthere was no authority under the terms of thePlan to make amendments and the IOF couldnot, therefore, effect the 1988 SurplusAmendment unilaterally given that the Planconstituted a contract between IOF, as anemployer, and its employees. In Crownx Inc. v.Edwards (1994), 120 D.L.R. (4th) 270, theOntario Court of Appeal described the right toamend a pension plan as follows:

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Whether one applies the law of trusts or thelaw of contract to pension plans, the rightto later unilaterally amend the pension planto provide for payment of surplus monieson termination must be found in the provi-sions of the original plan. It is trite to saythat if the plan constitutes a contractbetween the employer and employees, theright of one party to make significantamendments to the contract at a later stagemust be found expressly or by implicationin the original contract. (At pp 280-281.)

In the present case, it is appropriate to applycontract principles in determining the authorityof the IOF to make the 1988 SurplusAmendment since, as the Supreme Court ofCanada stated in the Schmidt decision;

[I]f the pension fund, or any part of it is notsubject to a trust, then any issues relating tooutstanding pension benefits or to surplusentitlement must be resolved by applying theprinciples which pertain to the interpretationof contracts to the pension plan. (At p. 655.)

In Schmidt, the Supreme Court examined theamending power in a pension plan the fund ofwhich was not subject to a trust (the Stearnsplan) to determine whether an amendment tothe plan providing for a reversion of surplus tothe employer was valid (see [1994] 2 S.C.R. 611,at pp. 671-674). In that case, the amendmentwas found to fit within the express amendingpower and, therefore, to be effective.

In the present case, there was no amendingpower set out expressly in the Plan prior to 1990,when the 1988 Plan Amendment was adopted,nor can I find any basis for implying any suchpower that would be broad enough to authorizean amendment in the terms of the 1988 SurplusAmendment. This is not to say that the power tomake some other kinds of amendments to the

Plan — say, to comply with income tax or pen-sion legislation, to enhance benefits or to imple-ment a collective agreement with a labour union— could not be implied or that the consent ofthe employees to some or all of those kinds ofamendment could not be inferred. Given theeffect on their entitlement to surplus on termina-tion, the employees who were members of thePlan cannot, in my view, be presumed to haveconsented to the 1988 Surplus Amendment.

While the original Plan contemplates the dis-continuance of the Plan (subsection 10(5)), thatdoes not carry an implication that the IOF mayalso amend the Plan so as to reserve any surplusto itself. Indeed, as noted above, any discontin-uance of the Plan was to be on the basis thatthe Pension Fund should immediately vest inthe members and be distributed or otherwisedealt with for their benefit. If, as I have con-cluded, the 1988 Surplus Amendment was notwithin the scope of an amending power implicitin the Plan, that amendment is without effectand the treatment of surplus on the discontinu-ance of the Plan must be in accordance with thepre-Amendment provisions of the Plan. In par-ticular, the surplus must be distributed or other-wise dealt with, as part of the Pension Fund, forthe benefit of the members upon the wind upof the Plan that has now occurred.

I assume that the 1988 Plan Amendment wasaccepted for registration by the Superintendent,pursuant to the terms of the Act, although therewas no evidence before us on this point. Suchregistration does not mean that theAmendment must, therefore, be treated as validin its entirety. There is nothing in the Act, orthe regulations under the Act to the effect thatregistration of an amendment cures any invalid-ity (see sections 12-17 of the Act and section 3of Regulation 909, R.R.0. 1990, as to the regis-tration of plan amendments).

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My conclusion that the original provision of thePlan dealing with the treatment of the PensionFund on discontinuance remained in effect atthe wind up of the Plan disposes of the IOF’schallenge to the Superintendent’s Notice ofProposal. That provision requires that thePension Fund, including any surplus, is to beapplied for the benefit of the members of thePlan, with the result that the Plan cannot besaid to provide for the payment of surplus tothe employer, the IOF, on the wind up of thePlan. Therefore, the Superintendent is obliged,under subsection 79(3) of the Act, to refuseIOF’s application for consent to the payment ofsurplus from the Plan. It follows, as well, thatthe Superintendent is entitled, under subsection70(5) of the Act, to refuse to approve the reportfiled by the IOF in respect of the wind up of thePlan, for failure to protect the interests of themembers of the Plan, in particular their inter-ests in the surplus on wind up. Such refusalsare, therefore, properly proposed by theSuperintendent in the Notice of Proposal.

The other members of the Panel who heard thiscase would support the proposed refusals of theSuperintendent on a different basis, as their sep-arate reasons indicate, namely what they see asthe overriding effect, upon the terms of thePlan, of the two successive trust agreements thatthe IOF entered into with respect to the PensionFund. As I disagree with their reasons in thatrespect, I will go on to set out my views as tothe impact of those agreements.

4. The Effect of the Trust Agreements Enteredinto by the IOF as of 1995 and 1999

The IOF entered into a Trust and MasterCustodial Services Agreement with the TrustCompany of Bank of Montreal effective as ofJune 21, 1995 (the “1995 Trust Agreement”)engaging the trust company to serve as trusteeand to provide certain custodial services, all in

respect of the Pension Fund. Upon the resigna-tion of the original trust company as trustee,the IOF entered into a similar agreement withCIBC Mellon Trust Company made as ofOctober 1, 1999 (the “1999 Trust Agreement”).

The Superintendent argued that, even if the1988 Surplus Amendment was valid, its provi-sion for the payment of surplus to the IOF wassubservient to the trust in respect of thePension Fund established, successively, by the1995 and 1999 Trust Agreements. Since thoseAgreements did not expressly designate the IOFas a beneficiary of the trust, the IOF was nolonger entitled, in the Superintendent’s view, tothe payment of surplus under the Plan. The IOFresponded by saying that each of the TrustAgreements must be read in conjunction withthe terms of the Plan, in which case it is clearthat the IOF is identified as a person to whichpayments from the Pension Fund may be madeand is, consequently, a beneficiary of the trustin respect of that Fund. The IOF argued, in thealternative, that each of the Trust Agreementsexpressly reserved to the IOF the power torevoke the trust, in which case it was within itspower to bring the trust to an end, therebyeffectively restoring the provision for the pay-ment of surplus to the IOF under the 1988Surplus Amendment.

The other members of the Panel, in their separatereasons rely on a passage from the majority deci-sion of Mr. Justice Cory in Schmidt to the effectthat the transfer of property by the settlor of atrust to the trustee is generally absolute and thatany control of that property will be lost unlessthe transfer is expressly subject to it. However,the issue in the present case is not whether theIOF effectively reserved the power, under theterms of the Trust Agreements, to designate itselfas a beneficiary of the trust when it transferredthe Pension Fund to the trustee but whether

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those terms indicate that the IOF was a beneficia-ry of the trust from the time of its creation.

The Superintendent was unable to provide uswith any authority for the proposition that thesettlor of a trust may not be a beneficiary of thetrust unless expressly named as such or that aplan sponsor may not be a beneficiary of a trustin respect of a pension plan unless expresslynamed as such. I believe that the proper inquiryin the present case should be whether the IOFcan be taken to be a beneficiary of the trust cre-ated by the Trust Agreements having regard tothe express terms of those Agreements and anyimplications that can be reasonably drawn fromthose terms. Certainly, the absence of the word“beneficiary” in the Trust Agreements, todescribe any interest the IOF may have in thePension Fund, should not be determinative.

The Trust Agreements leave it to the IOF to pro-vide instructions to the trust company as to thepayments that are to be made from the PensionFund. Any such instructions are deemed to con-stitute a “certification … that such paymentsare in accordance with the … Plan” (section4(h) of the 1995 Trust Agreement and section5.1 of the 1999 Trust Agreement). The TrustAgreements also provide that upon terminationof the trust fund that comprises the PensionFund, payments shall be made therefrom inaccordance with the directions of the IOF (sec-tion 8 of the 1955 Trust Agreement and section16.3 of the 1999 Trust Agreement), although inthe case of the 1999 Trust Agreement thosedirections are to be in accordance with theterms of the Plan. To me, all of this means quitesimply that the IOF is a beneficiary of the trustto the extent that the Plan provides for the pay-ment of some part of the Pension Fund to theIOF. The 1988 Plan Amendment, which if validis part of the Plan, makes such provision inrespect of any surplus in that Fund.

The Trust Agreements make it clear that the roleof the trust company as trustee does not extendto determining entitlements under the Plan.When it comes to the payment of amountsfrom the Pension Fund, the role of the trustcompany may be characterized as that of a“bare trustee” who must simply respond to thedirections of the IOF. Therefore, with respect todistributions from the Pension Fund, the trusteeacts, essentially, as an agent for the IOF, the sett-lor of the trust. In that kind of situation, theagency relationship with the settlor predomi-nates over the trust aspect of the arrangement(see Trident Holdings Ltd. v. Danand InvestmentsLtd. (1988), 64 O.R. (2d) 65, at pp. 73-79 (Ont.C.A.)). Therefore, in the present case, the trustshould not be taken to inhibit the right of theIOF to call for the payment to it of any surplus,in accordance with the Plan and, in particular,the 1988 Surplus Amendment, if valid.

The Superintendent relied on a statement of Mr. Justice Cory, giving the majority judgmentof the Supreme Court in Schmidt, to the follow-ing effect;

…when a trust is created [in respect of apension fund], the funds which form thecorpus are subjected to the requirements oftrust law. The terms of the pension plan arerelevant to distribution issues only to theextent that those terms are incorporated byreference in the instrument which createsthe trust. The contract or pension plan mayinfluence the payment of trust funds but its terms cannot compel a result which is atodds with the existence of the trust. (At pp. 639-640.)

For the reasons set out above, I do not regardthe Plan as compelling a result that is at oddswith the trust established by the 1995 or 1999Trust Agreement, but rather as having thecapacity to influence payments from the

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Pension Fund in a way that is not inconsistentwith the trust. While neither Agreement may,technically, incorporate the terms of the Plan, I do not believe that this should preclude theoperation of those terms in the circumstances ofthe present case, given the limited scope of thetrust. Each of the Agreements certainly refer-ences the terms of the Plan, leaving them togovern the ultimate disposition of the assets inthe Pension Fund. It seems to me that thiscomes to the same thing as incorporating theterms of the Plan by reference into the trustinstrument.

Finally, I am of the opinion that each of theTrust Agreements provides expressly for therevocation of the trust that it creates and, there-fore, that the IOF could exercise the power ofrevocation so as to leave the provisions of thePlan to operate unaffected by the existence of atrust in respect of the Pension Fund. Each of theAgreements provides specifically for the termi-nation by the IOF of the trust fund comprisingthe assets of the Pension Fund (section 8 of the1995 Trust Agreement and section 16.3 of the1999 Trust Agreement). In either case, the rele-vant provision has a broad scope and is not lim-ited to situations where the trust company hasresigned or been removed and is to be replacedby a new trustee. It seems to me that a termina-tion of a trust fund by the settlor amounts tothe revocation of the trust and that there is noparticular magic in the use of language of revo-cation as opposed to termination or cancella-tion. Indeed. The Supreme Court in Schmidtsaid that the word “revocation” connotes can-cellation (at p. 646) and “termination” is cer-tainly very close, in its ordinary meaning, to“cancellation”. The revocation of something issimply the termination or cancellation of thatthing where it was originally created by the per-son exercising a power of revocation. Unlike my

fellow Panel members, I can find nothing inSchmidt that suggests that an express power onthe part of the settlor of a trust to terminate thetrust fund does not amount to an express powerto revoke the trust.

5. The Remaining Significance of the Issue ofWhether the Excess Assets in the PensionFund Constitute Surplus

I agree with the other members of the Panelthat it is not necessary for the Tribunal to hearargument on the issue of whether the excessassets in the Pension Fund represent surplus. Ifthey do not, the Superintendent would havetwo proper grounds for refusing approval of the application for the payment of surplus andof the wind up report in respect of the Plan. If the excess assets do constitute surplus, theSuperintendent’s proposals to refuse thoseapprovals are, nonetheless, supportable on thebasis that the Plan does not provide for the pay-ment of such surplus to the IOF. We are, there-fore, in a position to dispose of the matter thatis before us without the need for a further hear-ing on the issue of whether there is any surplusin the Pension Fund.

DispositionAlthough I disagree with the other Panel mem-bers in their conclusion as to the effect of theTrust Agreements, I concur in their ultimate dis-position of this case. I reach that commonresult because of my conclusion that the 1988Plan Amendment is invalid.



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REASONS FOR DECISION OF MR. ERLICHMAN AND MS. GAVIN

BackgroundWe adopt the Background as set out in the sepa-rate Reasons of Mr. McNairn.

AnalysisThe Superintendent and IOF asked the Tribunalto rule on the issue of whether the Plan providesfor the payment of surplus to IOF. Since this is anecessary, though not sufficient, condition undersubsection 79(3) of the Act, for any payment ofsurplus to the employer, a negative ruling on thisissue would be determinative with respect to theSuperintendent’s Notice of Proposal, and no further hearing on the other issues would berequired. In effect, if the Plan did not provide forthe payment of surplus to IOF, the existence of asurplus and other possible issues arising in thiscase would be moot. A positive ruling couldrequire a hearing of other issues.

Accordingly, the representations at this hearingfocused quite narrowly on the language of thePlan text, trust agreements and other documentsrelated to the pension plan. Counsel for bothIOF and the Superintendent relied heavily on the leading Supreme Court of Canada case onpension plan surpluses, Schmidt v. Air ProductsCanada Ltd. [1994] 2 S.C.R. 611(Schmidt).

In Schmidt, the Supreme Court said: “the firstquestion to be decided in a pension surplus caseis whether or not a trust exists”(p. 639).

In 1995, the IOF entered into a Trust and MasterCustodial Services Agreement with the TrustCompany of the Bank of Montreal, effective asof June 21, 1995 (the “1995 Trust Agreement”)engaging the trust company to serve as trusteeand to provide certain custodial services withrespect to the Pension Fund. Upon the resigna-tion of the original trust company as trustee,

the IOF entered into a similar agreement withCIBC Mellon Trust Company as of October 1,1999 (the “1999 Trust Agreement”).

It was not disputed by the parties that the pen-sion plan was a pension trust from the time of1995 Trust Agreement. In Schmidt, the SupremeCourt said (at p. 643):

When a pension fund is impressed with atrust, that trust is subject to all applicabletrust law principles. The significance of thisfor the present appeals is twofold. Firstly,the employer will not be able to claim enti-tlement to funds subject to a trust unless theterms of the trust make the employer a ben-eficiary, or unless the employer reserved apower of revocation of the trust at the timethe trust was originally created. Secondly, ifthe objects of the trust have been satisfiedbut assets remain in the trust, those fundsmay be subject to a resulting trust.

The settlor of a trust can reserve any powerto itself that it wishes provided the reserva-tion is made at the time the trust is created.A settlor may choose to maintain the rightto appoint trustees, to change the beneficia-ries of the trust, or to withdraw the trustproperty. Generally, however, the transfer ofthe trust property to the trustee is absolute.Any power of control of that property willbe lost unless transfer is expressly made sub-ject to it.

IOF argued that, as the 1995 Trust Agreementnames no specific beneficiaries and does notexplicitly prohibit IOF from being a beneficiary,IOF was not precluded from being a beneficiaryof the fund. Further, IOF cited the language of the trust agreement, which allowed it toinstruct the trust company with respect to pay-ments from the trust in accordance with theprovisions of the pension plan, and to designate

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the direction of trust property if the trust agree-ment were terminated, to argue that 1995 TrustAgreement gave IOF the power to designateitself a beneficiary of the trust.

The 1995 Trust Agreement defines the “TrustFund” as “the securities or other properties deliv-ered to or held by Trustco [Trust Company of theBank of Montreal] from time to time and consti-tuting the pension fund of the Pension Plan tobe held as trust properties pursuant to the termsof this Agreement including the proceeds andincome therefrom” (Paragraph 1(m)). The 1995Trust Agreement also authorizes the TrustCompany “to make payments … in accordancewith the provisions of the Pension Plan”(Paragraph 4(h)). Members of the pension planare obviously beneficiaries of a pension trust setup to provide pension benefits to plan members.

On the other hand, it cannot be assumed thatthe employer, IOF, is a beneficiary of the trust.This would require a clear statement in the1995 Trust Agreement, and not the generalpowers given to IOF as plan administrator. Asthere was no such clear statement, IOF is not abeneficiary of the trust.

IOF argued that Section 22 of the 1995 TrustAgreement, which allowed IOF to direct the dis-tribution of trust property on the termination ofthe trust agreement, had the effect of reservingfor IOF the power to revoke the trust. This propo-sition does not accord with the Schmidt decision,in which the Supreme Court said (at p. 646) thatthe power to revoke cannot be read into a trustagreement without “extremely clear and explicitlanguage.” The Supreme Court continued:

A general amending power should notendow a settlor with the ability to revokethe trust. This is especially so when it isremembered that consideration was givenby the employee beneficiaries in exchange

for the creation of the trust. In the case ofpension plans, employees not only con-tribute to the fund, in addition they almostinvariably agree to accept lower wages andfewer employment benefits in exchange forthe employer’s agreeing to set up the pen-sion trust in their favour. The wording ofthe pension plan and trust instrument areusually drawn up by the employer. Theemployees as a rule must rely upon the goodfaith of the employer to ensure that theterms of the specific trust arrangement willbe fair. It would, I think, be inequitable toaccept the proposition that a broad amend-ing power inserted unilaterally by theemployer carries with it the right to revokethe trust. The employer who wishes toundertake a restricted transfer of assets mustmake those restrictions explicit. Moreover,amendment means change not cancellationwhich the word revocation connotes.

In fact, the Supreme Court specifically ruled, inSchmidt, that the power in the original trust doc-ument of the Catalytic pension plan to directthe distribution of trust funds on plan termina-tion did not constitute a right of revocation.

IOF also argued that the pension plan text,which was amended in 1990 to provide for sur-plus to revert to IOF on plan wind-up, wasimplicitly incorporated into the 1995 TrustAgreement. As a result, it was argued, IOF was abeneficiary of the Plan, particularly with respectto surplus on wind up, at the time of the firsttrust agreement.

Here again, the Supreme Court set a high stan-dard for the incorporation of pension plan lan-guage into the terms of a trust. To quote theSchmidt decision once more (at pp. 639-640):

The terms of a pension plan are relevant todistribution issues only to the extent that

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those terms are incorporated by reference inthe instrument which creates the trust. Thecontract or pension plan may influence thepayment of trust funds but its terms cannotcompel a result which is at odds with theexistence of the trust.

In this case, the references within the 1995Trust Agreement to the provisions of thePension Plan can influence payments from thePension Fund, but, in the absence of an explicitincorporation by reference, the terms of thePlan Text cannot be used to read either IOF’srights as a beneficiary or the right of revocationinto the 1995 Trust Agreement.

The one other avenue by which IOF mightclaim entitlement to pension plan surplus isthrough the creation of a resulting trust, if theobjects of the trust have been fully satisfied andmoney still remains in the trust fund. The clearobject of this trust was to provide pension bene-fits to plan members. In a defined contributionplan, such as the IOF Plan, the object is to pro-vide whatever benefits can be generated fromcontributions and investment earnings, andthere is no reasonable basis for arguing that theobject of the trust has been met, while assetsremain in the trust. There is therefore no result-ing trust created in this case.

We therefore conclude that, as IOF is not a ben-eficiary of the trust, nor does it have the powerto revoke the trust, nor has a resulting trustbeen created, consequently the Plan does notprovide for the payment of surplus to IOF.

In light of these conclusions, we see no need todeal with the other arguments raised by the par-ties concerning IOF’s entitlement to surplus.

DispositionWe direct the Superintendent to carry out theNotice of Proposal dated March 19, 2001, refus-ing to consent to an application by the IOF for

the payment of surplus from the Plan on itswindup and to approve the wind up report inrespect of the Plan.


Louis ErlichmanMember of the Tribunal and the Panel

Heather GavinMember of the Tribunal and the Panel

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PLAN: Imperial Oil Limited Retirement Plan (1988), Registration Number 347054 (the “IOL Plan”) and the Imperial Oil Limited Retirement Plan for Former Employees of McColl-Frontenac, Registration Number 344002 (the “MFI Plan”)



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AND IN THE MATTER OF partial wind upreports submitted by Imperial Oil Limited tothe Superintendent of Financial Servicesrespecting the Imperial Oil Limited RetirementPlan (1988), Registration Number 347054 (the“IOL Plan”) and the Imperial Oil LimitedRetirement Plan for Former Employees ofMcColl-Frontenac, Registration Number 344002(the “MFI Plan”);


BETWEEN:


BEFORE:


Mr. Louis ErlichmanMember of the Tribunal and of the Panel

Mr. William M. Forbes Member of the Tribunal and of the Panel

APPEARANCES:

For Imperial Oil Limited:Ms. Lindsay P. Hill


HEARING DATE:July 24, 2002

REASONS FOR ORDER

The BackgroundThis proceeding was initiated by the Applicant,Imperial Oil Limited, by filing a Notice ofRequest for Hearing with the Tribunal. TheRequest calls into question a Notice of Proposalby the Superintendent of Financial Services (the“Superintendent”), dated October 3, 2000, torefuse to approve partial wind up reports (the“Partial Wind Up Reports” or the “Reports”)filed by the Applicant in connection with thepartial wind up of two of its pension plans,namely its IOL Plan and its MFI Plan (the“Plans”). The partial wind ups had been orderedby the Superintendent because of a reorganiza-

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tion of the Applicant and the discontinuance ofone of its businesses brought about by the clo-sure of a refinery. The Plans were to be woundup in relation to those members and formermembers who ceased to be employed by theApplicant, as a result of the reorganization ordiscontinuance, during the period beginningFebruary 4, 1992 and ending on the later ofJune 30, 1995 and the date the last memberemployed at the refinery ceased employment(the “Partial Wind Up Period”). We refer to thisgroup of members and former members as the“Partial Wind Up Group”.

The stated grounds for the Superintendent’sproposal in the Notice of Proposal include thefailure of the Reports to reflect the liabilitiesassociated with all those who were part of thePartial Wind Up Group. Specifically, the Noticeof Proposal states that the Reports do not reflectthe liabilities associated with 2311 members ofthe Plans (2213 members of the IOL Plan and98 members of the MFI Plan).

By a notice of motion dated June 5, 2002, theSuperintendent moved for an order of theTribunal directing the Applicant to answer cer-tain of the interrogatories that it had served on the Applicant on October 11, 2001. TheApplicant has responded to some but not all ofthe original interrogatories.

The Issues in the ProceedingFor the purposes of this motion, the partiesagreed that the issues in this proceeding that arerelevant to the motion should be framed as fol-lows (the “statement of issues”):

Did any members or former members of thePlans who ceased to be employed by theApplicant during the Partial Wind Up Periodas set out in the Notice of Proposal cease tobe employed as a result of the reorganiza-tion or discontinuance of all or part of the

Applicant’s business, if their circumstancesfell within one of the following:

(i.) employees whose fixed term contractof employment was complete by itsterms (e.g. summer students, co-opstudents, and employees hired on acontract basis for a specified period of time);

(ii.) employees who became disabled andreceived disability benefits;

(iii.) employees who allegedly voluntarilyresigned;

(iv.) employees who were transferred to anaffiliated company that did not partic-ipate in the Plans;

(v.) employees who retired under theterms of the Plans at normal retire-ment age;

(vi.) employees who retired under the dis-ability retirement provisions of thePlans;

(vii.) employees whose employment wasterminated as a result of death; and

(viii.) employees whose employment wasallegedly terminated for cause.

There are other issues that will have to beaddressed at the main hearing in this proceed-ing, but none of the interrogatories to whichthis motion relates concern those other issues.

The InterrogatoriesThe interrogatories to which theSuperintendent insists on responses can be sum-marized as follows:

(a) did the positions filled by any members ofthe either of the Plans whose contracts of employment expired during the PartialWind Up Period cease to exist as a result ofthe reorganization or discontinuance of theApplicant’s business?

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(b) was any member of either of the Plans ter-minated for cause during the Partial WindUp Period (if so, provide the name and last-known address of the member, the date andreason for termination and any supportingdocumentation)?

(c) in the case of any member of either of thePlans who, during the Partial Wind UpPeriod,

(i.) was on leave or other interruption ofemployment due to disability,

(ii.) retired under a disability retirementunder the terms of either of the Plans,

(iii.) voluntarily terminated his or heremployment,

(iv.) retired at early retirement under theterms of either of the Plans, or termi-nated for cause, was that member’sjob function or title eliminated duringthe reorganization or discontinuanceof the Applicant’s business?

(d) did the Applicant ever re-hire, to permanentor contract positions, students who hadworked with the Applicant on a co-op orsummer placement; if so, how many werehired in the five year period prior to thewind up and how many of these assumednewly-created or entry-level positions; wereany of the latter positions eliminated as aresult of the reorganization or discontinu-ance of the Applicant’s business; and in allof these situations what were the details?

The PurposeThe Superintendent maintained that the pur-pose of the outstanding interrogatories was toelicit information that would be responsive toany argument of the Applicant that specificmembers or generic groups of members shouldbe excluded from the Partial Wind Up Group,

for the purposes of calculating the liabilities tomembers in the Partial Wind Up Reports, and tosimplify and narrow the issues in this proceed-ing. The Superintendent indicated that his posi-tion at the main hearing in this proceedingwould be that all those members of the Planswho ceased to be employed by the Applicantduring the Partial Wind Up Period should beincluded in the Partial Wind Up Group unlessthe Applicant can show cogent reasons whythey should not be included.

AnalysisThe test that this Tribunal has consistentlyapplied for deciding whether pre-hearing disclo-sure should be ordered is set out in MonsantoCanada Inc, v, Superintendent of Financial Services(see the Pension Bulletin, vol. 8, issue 2 (Sept.,1999), at pp. 77-82). In that case, the Tribunalsaid (at p. 79):

We believe that the Tribunal should, general-ly, be prepared to make a disclosure orderagainst a party to a proceeding before it,requiring the production of documents oranswers to interrogatories, in the followingcircumstances (if not in other circumstances):

• the information sought is arguably rele-vant to an issue in the proceeding andthat issue is not a frivolous one;

• the information sought is sufficiently par-ticularized that the party from whom theinformation is requested should be able torespond efficiently and with a reasonabledegree of precision; and

• the information is not privileged.

For the purpose of applying the first limb of thistest, relevance to an issue in the proceedingmeans relevance to an issue in the proceedingbefore the Tribunal, not the larger proceedingthat includes the process that takes place before

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the Superintendent, acting through one orother of the branches of the Financial ServicesCommission of Ontario.

Rule 19.01 of the Interim Rules of Practice andProcedure for Proceedings before the FinancialServices Tribunal describes the purpose of inter-rogatories as follows;

19.01 The Tribunal may issue proceduraldirections providing for interrogatories thatare necessary to:

(a) clarify evidence filed by a party;

(b) simplify the issues;

(c) permit a full and satisfactory under-standing of the matters to be considered;or

(d) expedite the proceeding.

Once again, the proceeding means the proceed-ing before the Tribunal.

The statement of issues that the parties haveagreed to for the purposes of this motion pre-supposes that categorical answers can be provid-ed as to whether all employees whose circum-stances fall within any of categories (i.) to (viii.)can be said to have ceased to be employed as aresult of the reorganization or discontinuanceof all or part of the Applicant’s business. Butthat may not be the case. For instance, thisTribunal might be inclined to the view thatwhile the employees whose circumstances fallwithin a particular category should be excludedfrom the Partial Wind Up Group, there is a sub-category or sub-categories of those employeesthat should be included. One such sub-categorymight be employees whose positions, job titlesor functions were eliminated during the reorga-nization or discontinuance of the Applicant’sbusiness. The answers to many of the Superin-tendent’s interrogatories might inform the casefor recognizing such a sub-category, or the casefor not recognizing such a sub-category, as they

would reveal the dimensions of the potentialsub-category.

All of this is not to suggest that the Superin-tendent has conceded that those employeeswhose circumstances fall within any of cate-gories (i.) to (viii.) should, generally, be exclud-ed from the Partial Wind Up Group, subjectonly to inclusion if their positions, job titles orfunctions were eliminated during the reorgani-zation or discontinuance of the Applicant’sbusiness. In fact, there has been no such conces-sion. Nonetheless, we think that the answers tothe interrogatories are arguably relevant to theissues in this proceeding, although we thinkthat it is sufficient if the Applicant were torespond by providing general or statistical,rather than employee-specific, informationabout the positions, job titles or functions ofemployees whose circumstances fall within eachof categories (i.) to (viii.). That informationwould contribute to permitting a full and satis-factory understanding of the matters that maybe considered in this proceeding and it couldexpedite the proceeding by avoiding the needfor obtaining supplementary information at alater stage in the proceeding. The promotion ofthat understanding and the expedition of theproceeding are among the purposes of inter-rogatories set out in Rule 19.01 of the InterimRules of Practice and Procedure for Proceedingsbefore the Financial Services Tribunal.

We now address the particular interrogatoriesposed by the Superintendent in light of theapproach set out above. We deal with interroga-tory (a.) in our discussion of interrogatory (c.)below. Interrogatory (b.) asks, among otherthings, whether any member of either of thePlans was terminated for cause during thePartial Wind Up Period. The Applicant hasalready answered “yes” to this question, in a let-ter dated February 28, 2002 to counsel for the

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Superintendent, and has provided some particu-lars about the situations where members of thePlans were terminated for cause during thePartial Wind Up Period. We decline to order theApplicant to provide any further particulars ofthis kind as that information is member-specificand is not, in our view, arguably relevant to theissues in this proceeding.

Interrogatory (c.) would seem to call for infor-mation relating to each and every memberfalling within any of categories (i.) to (v.) whosejob function or title was eliminated during the reorganization or discontinuance of theApplicant’s business. The disclosure of suchmember-specific information is not, in ourview, relevant to the issues in this proceeding.However, we would order the Applicant torespond to more general questions, by way of arevised interrogatory in place of interrogatories(a.) and (c.), as follows:

• how many of the 2311 members of thePlans who ceased to be employed by IOLduring the Partial Wind Up Period but wereexcluded from the Partial Wind Up Groupwere in the circumstances described ineach of the following categories:

(i.) on fixed term contracts of employmentthat were complete by their terms (e.g.summer students, co-op students, andemployees hired on a contract basis fora specified period of time);

(ii.) on leave or other interruption ofemployment due to disability;

(iii.) retired under a disability retirementunder the terms of either of the Plans;

(iv.) voluntarily terminated employment;

(v.) retired at early retirement under theterms of either of the Plans; or

(vi.) terminated for cause?

• what proportion of the members in catego-ry (i.) had their positions eliminated at orfollowing the cessation of their employ-ment with the Applicant but during thereorganization or discontinuance of theApplicant’s business and what proportionof the members in each of categories (ii.) to(vi.) had their job titles or functions elimi-nated at or following the cessation of theiremployment with the Applicant but duringthe reorganization or discontinuance ofthe Applicant’s business?

We recognize that the Superintendent mayalready have been advised, in respect of some orall of categories (i.) to (vi.), of the number ofmembers whose circumstances fall within a par-ticular category.

Interrogatory (d.) asks, among other things,whether the Applicant ever re-hired, to perma-nent or contract positions, students who hadworked with the Applicant on a co-op or summerplacement. The Applicant has already answered“yes” to this question, in a letter dated February28, 2002 to counsel for the Superintendent. Wedecline to order the Applicant to provide aresponse to the balance of interrogatory (d.) as itdoes not seem to us to be arguably relevant to theissues in this proceeding.

DispositionTherefore, we make the order against theApplicant set out in Appendix A, directing it torespond to the Superintendent in respect of theinterrogatories posed in that Appendix. TheSuperintendent requested that the time for theApplicant’s response to the interrogatories bethirty days from the date of our order. However,we have set a time limit of six weeks from thatdate for response. This coincides with the timelimit that we have imposed on the Superin-tendent, by order dated September 11, 2002, for

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responses to outstanding interrogatories of theApplicant in this same proceeding.



Louis Erlichman, Member of the Tribunal and of the Panel

William M. Forbes, Member of the Tribunal and of the Panel

Appendix AImperial Oil Limited (the “Applicant”) is herebyordered to provide answers to the Superin-tendent of Financial Services in respect of theinterrogatories set out below within six weeks ofthe date of this order:

• how many of the 2311 members of thePlans who ceased to be employed by IOLduring the Partial Wind Up Period but wereexcluded from the Partial Wind Up Groupwere in the circumstances described ineach of the following categories:

(i.) on fixed term contracts of employ-ment that were complete by theirterms (e.g. summer students, co-opstudents, and employees hired on acontract basis for a specified period of time);

(ii.) on leave or other interruption ofemployment due to disability;

(iii.) retired under a disability retirementunder the terms of either of the Plans;

(iv.) voluntarily terminated employment;

(v.) retired at early retirement under theterms of either of the Plans; or

(vi.) terminated for cause?

• what proportion of the members in category(i) had their positions eliminated at or fol-lowing the cessation of their employmentwith the Applicant but during the reorgani-zation or discontinuance of the Applicant’sbusiness and what proportion of the mem-bers in each of categories (ii) to (vi) had theirjob titles or functions eliminated at or fol-lowing the cessation of their employmentwith the Applicant but during the reorgani-zation or discontinuance of the Applicant’sbusiness?

The capitalized terms in this order have the samemeaning as those terms as used in the Reasonsfor Order of the Financial Services Tribunal thataccompany, and provide the basis for, this order.

DATED this 20th day of September, 2002.

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INDEX NO.: FST File Numbers P0166-2001& P0175-2001

PLAN: Samsonite Canadian Service Related Plan, Registration No. 398578 andSamsonite Canadian Retirement Income Plan, Registration No. 373225

DATE OF DECISION: October 21, 2002


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AND IN THE MATTER OF a Proposal by the Superintendent of Financial Services (the‘Superintendent”) to Refuse to Consent to anapplication by Samsonite Canada Inc. for thepayment of surplus to the employer from the Samsonite Canadian Service Related Plan,Registration No. 398578 and a proposal by the Superintendent to Refuse to Consent to an application by Samsonite Canada Inc. for the payment of surplus to the employer fromthe Samsonite Canadian Retirement IncomePlan, Registration No. 373225;


BETWEEN:SAMSONITE CANADA INC.Applicant-and-SUPERINTENDENT OF FINANCIAL SERVICESRespondent

BEFORE:

Ms. Martha MilczynskiChair of the Tribunal and of the Panel

Mr. David ShortMember of the Tribunal and of the Panel

Mr. William ForbesMember of the Tribunal and of the Panel

APPEARANCES:

For Samsonite Canada Inc.:Mr. Greg Winfield

For the Superintendent of Financial Services:Mr. Mark Bailey

HEARING DATES:June 3, 2002

REASONS

INTRODUCTION

Samsonite Canada Inc. (the “Company”) hasrequested a hearing before the Financial ServicesTribunal (the “Tribunal”) with respect to twoNotices of Proposal (together the “NOPs” andeach the “NOP”) issued by the Superintendentof Financial Services (the “Superintendent”).

The NOP dated June 1, 2001 relates to theCompany’s application to the Superintendentto withdraw surplus from the SamsoniteCanadian Service Related Plan, registration

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No. 398578 (the “Hourly Plan”). As at the wind-up date, the Hourly Plan had surplus assets ofapproximately $727,200. The Company pro-posed to distribute $360,800 to Hourly Planmembers and former members as benefitimprovements, and $366,400 was to be paid tothe Company. The Company’s proposalreceived consent from 88% of active membersand 72% of inactive members.

The NOP dated October 11, 2001 relates to theCompany’s application to the Superintendentto withdraw surplus from the SamsoniteCanadian Retirement Income Plan, registrationNo. 373225 (the “Salaried Plan”). As at the windup date, the Salaried Plan had surplus assets ofapproximately $747,400. The Company pro-posed to distribute $396,900 to Salaried Planmembers and former members as benefitimprovements, and $350,500 was to be paid tothe Company. The Company’s proposalreceived consent from 93% of the active mem-bers and 79% of inactive members.

The Hourly and Salaried Plans were terminatedby the Company effective January 31, 1998.

Each of the Superintendent’s NOPs proposed todismiss the Company’s application to withdrawsurplus on the grounds that the terms of theHourly Plan and Salaried Plan do not providefor “payment of surplus to the employer on thewind-up of the pension plan”, and that conse-quently, the applications’ compliance with subsection 79(3)(b) of the Pensions Benefits Act(the “PBA”) was not established.

For the reasons set out below, the Tribunalaffirms the Superintendent’s NOPs. Althougheach of the current versions of the Hourly andSalaried Plans contain provisions that provide forthe Company’s entitlement to surplus on plantermination, such provisions are the product ofamendments made to the Plans in 1980 that are

contrary to the terms of the original (1969)Hourly and Salaried Plans and Trust documents.

The original Plan documents expressly andirrevocably restricted the scope of theCompany’s authority or ability to amend theterms of the Hourly and Salaried Plans and/orto receive payment of surplus upon the Plans’termination.

PBA REQUIREMENTS FOR SURPLUSWITHDRAWALS

The PBA and regulations establish a comprehen-sive regulatory regime for the withdrawal of sur-plus monies by employers from ongoing pen-sion plans and from terminated pension plans.The regulatory requirements include provisionsaddressing notice to plan members and formermembers, the preparation and filing of valua-tion reports, and obtaining the requisite level ofmember/former member consent and, whereapplicable, the consent of any bargaining agent.

The only issue concerning the Company’s appli-cations for surplus withdrawal from each of theHourly and Salaried Plans, however, is whether ornot the following PBA requirement was satisfied:

ss. 79(3) Subject to subsection 89 (hearingand appeal), the Superintendent shall notconsent to an application by an employer inrespect of surplus in a pension plan that isbeing wound up in whole or in part unless, …

(b) the pension plan provides for paymentof surplus to the employer on the wind upof the pension plan, …

HOURLY AND SALARIED PLAN ANDTRUST PROVISIONSThe Hourly and Salaried Plans were originallyestablished in 1969 and in addition to pensionplan documentation, included a trust agree-ment for each of the plans with The CanadaTrust Company.

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The relevant provisions of the text of the origi-nal plan documents for the Hourly Plan and forthe Salaried Plan are, in all material respects,identical. Subsections 5.1, 7.1 and 7.2 of theoriginal Hourly and Salaried Plans provide asfollows:

ARTICLE V: CONTRIBUTIONS AND FINANCING5.1 The Company shall make annual contribu-tions to the Trustee, on the basis of qualifiedactuarial advice, in the amount necessary toprovide benefits earned under the Plan duringthe year, and shall pay administrative expensesincident to the operation and management ofthe Plan. Any unfunded liability, or experiencedeficiency arising from the funding of benefitsherein provided shall be liquidated in the man-ner prescribed by the Ontario Pension Benefits Actof 1965 (including any amendments thereto)and related regulations, or other provisions oflaw applicable to the Plan.

The Company shall have no right, title, or inter-est in the contributions made by it to theTrustee, and no part of Plan assets shall revert tothe Company except that any excess contribu-tions as may have been made by the Companyas a result of errors may revert to the Company.

The benefits of the Plan shall be only such ben-efits as can be provided by Plan assets, and thereshall be no liability or obligation on the part ofthe Company to make any further contribu-tions to the Trustee in the event of terminationof the Plan except as otherwise provided underthe Ontario Pension Benefits Act of 1965 (includ-ing any amendments thereto) and related regu-lations or other provisions of law applicable tothe Plan. No liability for the payment of bene-fits under the Plan shall be imposed upon theCompany or any officer, director, or stock-holderof the Company.

ARTICLE VII: AMENDMENT — TERMINATION — LIMITATION7.1 The Company hopes and expects to con-tinue the Plan indefinitely but necessarilyreserves the right to amend or terminate thePlan at any time or from time to time for anyreason.

No such action by the Company shall operateto recapture for the Company any contributionspreviously made under the Plan by theCompany prior to the satisfaction of all liabili-ties for Plan benefits.

Except to the extent required to permit the Planto meet the requirements of the Ontario PensionBenefits Act of 1965, as amended, the CanadianIncome Tax Act, or the requirements of any gov-ernmental authority, no such action by theCompany shall affect adversely in any way anyrights previously acquired under the Plan byretired Participants.

7.2 In the event of the termination of this Plan,the assets then in the possession of the Trusteeshall be allocated, subject to provision for expens-es incident to said termination, to the extent thatthey shall be sufficient, for the exclusive benefitof the then retired Participants and all otherParticipants or former Participants and their ben-eficiaries having an interest in this Plan. Suchassets shall, subject to approval of the OntarioPension Commission, be allocated to such per-sons in the following order of precedence:

(a) To provide for the continuance of Pensionsto retired Participants and their beneficia-ries, if any;

(b) If any assets remain after complete alloca-tions for the purposes of (a) above, theyshall be allocated toward the potential rightsof non-retired Participants or formerParticipants eligible for a normal, deferred,early, or disability pension on an equitable

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and nondiscriminatory basis according toaccepted actuarial principles;

(c) If any assets remain after complete alloca-tions for the purposes of (a), and (b) above,they shall be allocated toward the potentialrights of non-retired Participants not includ-ed in the allocations under (a), and (b) above,on an equitable and nondiscriminatory basisaccording to accepted actuarial principles;

(d) If any assets remain after complete alloca-tions for the purposes of (a), (b), and (c)above, they shall be used to increase thebenefits provided pursuant to the alloca-tions made under (a), (b) and (c) above, onan equitable and nondiscriminatory basisaccording to accepted actuarial principles.

If the Ontario Pension Commission does notapprove the foregoing method of allocationthen the method shall be modified, where nec-essary, so that such approval can be received.

The above allocations shall be distributed by theTrustee in annuities or in such other manner asmay be agreed upon by the Company and theTrustee. No Participant or other Employee orperson shall have any rights or claims under thePlan beyond the capacity of the assets held bythe Trustee to provide benefits in accordancewith the above provisions.

The Hourly and Salaried Plans’ TrustAgreements were made as at April 1, 1969. Eachagreement provided that assets in the trust fundwere to be used for “the exclusive benefit ofsuch persons or their estates as may from timeto time be designated in or pursuant to thePlan”. Each agreement also contained a provi-sion that their terms could not be amended soas to “authorize or permit any part of the Fundto be used for or diverted to purposes otherthan for the exclusive benefit of such personsand their estates as from time to time may bedesignated in or pursuant to the Plan”.

ANALYSISThe Company made submissions to theTribunal that since inception and consistentwith the original Hourly and Salaried Plan doc-umentation, the Company was a “beneficiary”or “contingent beneficiary” under the terms ofthe Plans and Trust Funds and that therefore,the amendments made subsequently in 1980 toexpressly provide for payment of surplus to theemployer on plan termination were valid. TheCompany also made submissions that the 1980amendments were consistent with the amend-ing authority the Company reserved to itself inthe original Plan and trust documentation. Suchpension plan and trust provisions must, howev-er, be express, unambiguous and clear to satisfythe “high bar” enunciated in Schmidt v AirProducts Canada Limited [1994] 2SCR611. As theexcerpts from Schmidt that are set out in Kent vTecsysn International Inc.(2000), 133 O.A.C. 312(Ont. Div. Ct.) indicate:

Cory J. (for the majority) said:

Page 643: The Settlor of a trust can reserveany power to itself that it wishes providedthat the reservation is made at the time thetrust is created. The Settlor may choose tomaintain the right to appoint trustees, tochange the beneficiaries of the trust, or towithdraw the trust property. Generally, how-ever, the transfer of the trust property to thetrustee is absolute. Any power of control ofthat property will be lost unless the transferis expressly made subject to it.

Page 647: As a result I find that, at least inthe context of pension trusts, the reserva-tion by the Settlor of an unlimited power ofamendment does not include a power torevoke the trust. A revocation power mustbe explicitly reserved in order to be valid.

Page 656: The employer, as a Settlor of thetrust, may reserve the power to revoke the

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trust. In order to be effective, that powermust be clearly reserved at the time the trustis created. The power to revoke the trust orany part of it cannot be implied from thegeneral unlimited power of amendment.

Page 659: In my opinion, the purposes ofthe trust were not fully satisfied by the pay-ment of all defined benefits. One of theobjects of the trust was to use any moneycontained in the fund for the benefit of theemployees.

In the case at hand, the Company did not satis-fy the Tribunal that there was the clear andunambiguous language in either the Hourly orthe Salaried Plan documentation that wouldpermit the Company to participate in any dis-tribution of surplus assets on Plan terminationor that would permit an amendment to thePlans to be made subsequently, to give effect tosuch distribution. The requirements ofSubsection 79(3)(b) of the PBA have not beenmet to the high standard required to establishemployer entitlement to surplus.

ORDERAccordingly, the Tribunal affirms each of theSuperintendent’s NOPs and directs theSuperintendent to dismiss the Company’s appli-cations for surplus withdrawal.

The Tribunal will remain seized for the purposesof considering either party’s request for costs,such request and submissions to be made inwriting within 30 days of this order.

DATED at Toronto, Ontario, this 21st day ofOctober, 2002.

Martha Milczynski, Chair of the Tribunal and of the Panel

William Forbes, Member of the Tribunal and of the Panel

David Short,

Member of the Tribunal and of the Panel

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PLAN: Imperial Oil Limited Retirement Plan,

Registration Number 347054

DATE OF DECISION: October 21, 2002


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AND IN THE MATTER OF a Proposal by theSuperintendent of Financial Services (the‘Superintendent”) to Make an Order Requiringthe Wind Up in Part of the Imperial Oil LimitedRetirement Plan, Registration Number 347054(the “IOL Plan”);

AND IN THE MATTER OF a Proposal by theSuperintendent to Make an Order with respectto the Calculation of Pension Benefits pursuantto section 87 of the Act, relating to the IOLPlan;


BETWEEN:


BEFORE:

Mr. Colin H.H. McNairn

Vice Chair of the Tribunal and Chair of the Panel

Mr. William Forbes Member of the Tribunal and of the Panel

Ms. Heather GavinMember of the Tribunal and of the Panel

APPEARANCES:

For Imperial Oil Limited:Mr. J. Brett LedgerMr. Evan S. Howard


HEARING DATES:June 13 and August 1, 2002

REASONS FOR DECISION OF MR. MCNAIRN AND MR. FORBES

Statement of FactsImperial Oil Limited (“IOL”) sold its “Esso”branded consumer and small commercial creditcard receivables to General Electric CapitalCanada Inc. (“GE Capital”) effective April 28,1995. The purchase and sale agreement provid-ed that GE Capital would establish a credit cardprogram pursuant to which it would issue cred-it cards bearing the service mark “Esso”. InNovember of 1995, in connection with thesale, 37 employees of IOL (the “TransferredEmployees”) became employees of GE Capital.The Transferred Employees were members ofthe Imperial Oil Limited Retirement Plan,

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Registration Number 347054 (the “IOL Plan”)and, upon their transfer, became members of a pension plan sponsored by GE Capital (the“GE Capital Plan”). The pension benefitsaccrued by the Transferred Employees prior totheir transfer to GE Capital remained payablefrom the IOL Plan.

Upon assuming their new employment, theTransferred Employees changed their place ofwork from IOL’s office building at 90 WynfordDrive in Don Mills, Ontario (the “WynfordFacility”) to GE Capital’s building at 600 AldenRoad in Markham, Ontario, known as the“Toronto Business Centre”. The WynfordFacility also housed other business operations ofIOL and continued to do so following the saleof the credit card business to GE Capital.

Some of the employees of IOL who worked inthe credit card business at the Wynford Facilityand were members of the IOL Plan did notbecome Transferred Employees but lost theirjobs as a result of the sale of the business. Theywere given severance packages by IOL, but therewas no partial wind up of the IOL Plan inrespect of those employees.

Around the end of 1997, the credit card busi-ness of GE Capital that was carried on at theToronto Business Centre was transferred to GECapital Canada Retailer Financial ServicesCompany, an affiliate of GE Capital, and theemployees engaged in the business, includingthe Transferred Employees who continued inthe service of GE Capital, became employees ofthat affiliate.

The business carried on at the Toronto BusinessCentre related to both Esso and Petro-Canadacredit cards. Commencing about the end of1998, there was some integration of the businessactivities relating to the two credit card lines,which involved some of the Transferred

Employees doing work in relation to the Petro-Canada card, as well as the Esso card, and someof the other employees doing work in relation tothe Esso card, as well as the Petro-Canada card.

At the same time as it operated its TorontoBusiness Centre, GE Capital maintained abilling and embossing unit for its credit cardoperations on Alden Road in Markham at a dif-ferent municipal address from the TorontoBusiness Centre but in a building that, accord-ing to the evidence, “may have been across theparking lot” from that Centre. This facility pro-vided services for the credit card business at theToronto Business Centre, as well as for othercredit card businesses of GE Capital.

Upon the conclusion of its credit card contractswith IOL and Petro-Canada, GE Capital discon-tinued the credit card business that it carried onat the Toronto Business Centre in July of 2000,resulting in the termination of the employeeswho worked at that location. The terminatedemployees included 32 remaining TransferredEmployees from IOL. Of these, three employeeswere re-hired by IOL and their service with GECapital was recognized for eligibility purposesunder the IOL Plan. GE Capital then wound upthe GE Capital Plan effective September 7, 2000.

On August 3, 2001, the Superintendent ofFinancial Services (the “Superintendent”) issueda notice of proposal to make an order to windup the IOL Plan in part — in relation to thosemembers and former members who wereemployed by GE Capital at the Toronto BusinessCentre and who ceased employment with GECapital between March 2000 and July 2000 as aresult of the closure of that Centre (the “FirstNotice of Proposal”). The Superintendent issueda further notice of proposal, on the same date,proposing to make an order that the administra-tor of the IOL Plan give credit for both age and

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years of service, as at the time of the closure ofthe Toronto Business Centre, to those membersand former members of the IOL Plan whoceased employment with GE Capital betweenMarch 2000 and July 2000 as a result of the closure of the Toronto Business Centre, whendetermining entitlement to benefits under theIOL Plan (the “Second Notice of Proposal”).

IOL filed Requests for Hearing by the Tribunalin respect of both Notices of Proposal on August24, 2001. The hearings before the Tribunal relating to the two Notices of Proposal wereheard together.

Consideration of the IssuesThere are two principal issues that the Tribunalmust address in this case, the first relating tothe First Notice of Proposal and the secondrelating to the Second Notice of Proposal.

1. Whether the Superintendent isentitled in the circumstances ofthis case to make an order, underclause (e) of subsection 69(1) of thePension Benefits Act, as amended(the “Act”), requiring the partialwind up of the IOL Plan.

Subsection 69(1) of the Act describes thevarious situations in which theSuperintendent may order a wind up, inwhole or in part, of a pension plan. Theyinclude the following;

(d) a significant number of members of thepension plan cease to be employed by theemployer as a result of the discontinuanceof all or part of the business of the employeror as a result of the reorganization of thebusiness of the employer;

(e) all or a significant portion of the busi-ness carried on by the employer at a specificlocation is discontinued;

While the Superintendent relied initially onboth of these clauses, as indicated in the FirstNotice of Proposal, reliance was limited to clause(e) at the hearing before this Tribunal. TheSuperintendent maintained that in this case thediscontinuance of the credit card business at GECapital’s Toronto Business Centre could beattributed to IOL, as well as to GE Capital, withthe result that the Superintendent was entitledto order the partial wind up of the IOL Plan in relation to those members who lost theiremployment due to that discontinuance of busi-ness and who were not re-employed by IOL.

The stated basis for the Superintendent’s posi-tion in this case is the decision of the PensionCommission of Ontario (the “PCO”) in GenCorpCanada Inc. v. Ontario (Superintendent of Pensions)(1994), PCO Bulletin 5/3 (Fall 1994) (Index No.XDEC-25), a case involving the application ofclause (d) of subsection 69(1) of the Act. InGenCorp, a company was ordered to wind up itspension plan in part — in relation to those ofits former employees whose employment wastransferred in connection with the sale of thebusiness in which they were engaged — whenthe successor company discontinued the busi-ness by closing the plant it had acquired on thesale, thus terminating the employment of thetransferred employees. In that case, as in thepresent case, the transferred employees ceasedto accrue benefits under the plan in questionupon the sale but remained entitled to pensionbenefits under it that had accrued to the date ofsale. The PCO concluded that the company thatsold the business was deemed to continue as the employer of the transferred employees afterthe sale by virtue of what was then section 29 of the Act, a conclusion that was consistentwith the broad definition of “employer” in sec-tion 1 of the Act. Therefore, the discontinuanceof the business by the successor company, on

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the closure of the plant, resulted in the termina-tion of their deemed employment with the predecessor company (as well as their actualemployment with the successor company),enabling the Superintendent to order the windup of the predecessor company’s pension plan,in relation to the transferred employees, underclause (d) of subsection 69(1) of the Act.

Appeals from the decision of the PCO were dis-missed by the Divisional Court and the Court ofAppeal, both of which found that the PCO’sinterpretation of the relevant provisions of theAct was reasonable and, therefore, should notbe disturbed on review (see (1995), 26 O.R. (3d)696 (Div. Ct.), and (1998), 39 O.R. (3d) 38(C.A.)). The Court of Appeal also concluded thatif the standard of review were correctness,rather than reasonableness, the PCO’s interpre-tation was indeed correct.

Section 29 of the Act provided, among otherthings, that an employee is deemed not to havebeen terminated by reason of a sale of a busi-ness by the employer that is accompanied by atransfer of the employee to the acquiror of thebusiness, who then becomes a successoremployer (the “deemed continuation-of-employment provision”). This provision hasbeen carried forward (with some modificationsthat are not material for present purposes) insection 80 of the Act. The latter section current-ly provides, in subsection (3), as follows;

(3) Where a transaction described in subsec-tion (1) takes place, the employment of theemployee shall be deemed, for the purposesof this Act, not to be terminated by reasonof the transaction.

Subsections (1) and (2) of section 80 are to thefollowing effect;

(1) Where an employer who contributes to apension plan sells, assigns or otherwise dis-

poses of all or part of the employer’s busi-ness or all or part of the assets of theemployer’s business, a member of the pen-sion plan who, in conjunction with the sale,assignment or disposition becomes anemployee of the successor employer andbecomes a member of the pension plan pro-vided by the successor employer,

(a) continues to be entitled to the benefitsprovided under the employer’s pensionplan in respect of employment inOntario or a designated province to theeffective date of the sale, assignment ordisposition without further accrual;

(b) is entitled to credit in the pension planof the successor employer for the periodof membership in the employer’s pen-sion plan, for the purpose of determin-ing eligibility for membership in or enti-tlement to benefits under the pensionplan of the successor employer; and

(c) is entitled to credit in the employer’s pen-sion plan for the period of employmentwith the successor employer for the pur-pose of determining entitlement to bene-fits under the employer’s pension plan.

(2) Clause (1) (a) does not apply if the succes-sor employer assumes responsibility for theaccrued pension benefits of the employer’spension plan and the pension plan of thesuccessor employer shall be deemed to be acontinuation of the employer’s plan withrespect to any benefits or assets transferred.

The term “employer”, which is used in bothclause (d) and (e) of subsection 69(1) of the Act,is defined in section 1 of the Act as follows;

“employer”, in relation to a member or formermember of a pension plan, means the person orpersons from whom or the organization fromwhich the member or former member receives

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or received remuneration to which the pensionplan is related, and “employed” and “employ-ment” have a corresponding meaning;

The term is, thus, capable of covering a formeremployer of an individual as well as the currentemployer of the individual where that individ-ual was and is a member of a pension plan inconnection with his or her employment.

All but one of the arguments on the first issuein the present case related, essentially, towhether GenCorp should be taken to govern theoutcome of this case or whether there are dis-tinguishing features in this case that justify adifferent conclusion.

IOL maintained that the GenCorp decisionshould not dictate the result of the present casefor a number of reasons, the first being a policyreason. IOL portrayed the policy objectiveunderlying the decision in GenCorp — to order apartial wind up — as being the preservation ofbenefits (such as the “grow in benefits” mandat-ed on a wind up) that the employees at theplant would have received had the plant simplybeen closed and not been transferred as a goingconcern along with those employees (indeed,the PCO placed some emphasis on this elementof the case, see (1994), PCO Bulletin 5/3 (Fall1994), at pp. 60 and 62). In that event, theemployer could have been ordered to wind upthe plan in relation to those employees, pur-suant to clause (e) of subsection 69(1) of theAct, since it would have discontinued the busi-ness carried on by it at a particular location,namely the plant site. The partial wind up thatwas in fact ordered in GenCorp could, therefore,be said to be a “deferred wind up” that com-mended itself because it afforded an equitableresult for the transferred employees. The samething could not be said about any partial windup that might be ordered in the present case

since there would have been no basis for a par-tial wind up had IOL simply discontinued thecredit card business carried on at its WynfordFacility. Thus, any partial wind up of the IOLPlan upon GE Capital’s discontinuance of thebusiness was not, in any sense, a “deferred windup” of the IOL Plan that simply preserved theopportunity for the Transferred Employees toparticipate in the benefits of a partial wind up(such as “grow in benefits”) that they wouldhave had if the business had been discontinuedby IOL.

IOL also argued that the Superintendent’s pro-posed partial wind up order in the present casewas not only unnecessary to achieve an equi-table result, but would create an inequity — asbetween those employees who lost their jobs onthe sale of the business and their fellow employ-ees who were transferred with the business. Theformer were never entitled to participate in apartial wind up of the IOL Plan while the latterwould be so entitled under the Superintendent’sorder. But the same inequity may well havearisen in GenCorp for the statement of facts inthe PCO decision in that case suggests that, as inthis case, something short of all the employeeswere transferred with the business (see (1994),PCO Bulletin 5/3 (Fall 1994), p. 58), although itdoes not say whether any non-transferredemployees simply lost their jobs or were offeredalternative employment at another location.

We do not believe that clause (d) or (e) of sub-section 69(1) of the Act, as read with subsection80(3), can be taken to have the effect of autho-rizing a wind up of a pension plan that amountsto a “deferred wind up,” as in GenCorp, but asfailing to authorize a wind up that could not becharacterized as such, as in the present case.There is nothing in the language of those statu-tory provisions that suggests such a distinction.The determining circumstances that justify the

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wind up of a pension plan in relation to formeremployees are essentially post-sale-of-businesscircumstances; they have nothing to do with thehypothetical benefits that a terminated employ-ee might have had in the absence of continuingemployment with a successor employer. More-over, any inequity that might result from a windup order — as between those employees whowere out of work on the sale of a business andthose employees who had the opportunity forcontinuing employment with a successor —does not have any bearing, under the relevantstatutory provisions, on the question of whetherthe Superintendent is authorized to make suchan order. Of course, the Superintendent does not have to make a wind up order whenever thecircumstances set out in clause (d), (e), or anyother clause of subsection 69(1) are present since the authority in that subsection is discre-tionary. The Superintendent can properly weighthe equities in the balance in the exercise of that discretion.

Second, IOL argued that the present case is dis-tinguishable from GenCorp because the entitythat was the immediate successor employer,namely GE Capital, did not cause theTransferred Employees to lose their jobs. Ratherthat was the result of the action of another enti-ty, GE Capital Canada Retailer Financial ServicesCompany (“GE Retailer”), an affiliate of GECapital that acquired the business carried on byGE Capital at the Toronto Business Centrearound the end of 1997 and assumed the posi-tion of employer of the Transferred Employees,and of the other employees at the Centre, atthat time.

After taking on the Transferred Employees, GERetailer became their “employer” (along withIOL and GE Capital) in the sense of the Act and,therefore, for the purposes of clause (e) of sub-section 69(1). It seems clear to us that the

deemed continuation-of-employment provisionin subsection 80(3) of the Act is capable ofapplying more than once to a transferredemployee so that his or her employment is con-tinued through sequential sales of the businessin which the employee is engaged. In anyevent, we think that clause (e) of subsection69(1), as read with subsection 80(3), should betaken to trigger the right of the Superintendentto order the wind up, in whole or in part, of anemployer’s pension plan when a successor cor-porate organization or group, to which employ-ees are transferred, terminates those employeesby discontinuing the acquired business as it iscarried on at a particular location. We do notthink that it should make any difference if acorporate reorganization happens to haveoccurred, before the business is discontinued,with a resulting change in the entity within theorganization or group that is the actual employ-er of the transferred employee. Such an eventought not to affect the potential statutory bene-fits that the transferred employees might haveas a result of their membership in the pensionplan of the predecessor employer.

IOL’s third argument for distinguishing the pre-sent case from GenCorp is that the business thatwas sold in GenCorp was carried on at the samelocation both before and after the sale whereasthe location of the business changed with thesale in the present case. However, the locationof the business did not assume any particularimportance in GenCorp. That is not surprising asbusiness location is not a factor in the deemedcontinuation-of-employment provision of theAct (now in subsection 80(3)) and discontinu-ance of business at a specific location was notthe trigger for the wind up in that case since thePCO ordered it to proceed on the basis of clause(d), rather than clause (e), of subsection 69(1) ofthe Act. Nonetheless, the approach in GenCorp

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lends itself to application in the present case. Ifa successor employer’s termination of trans-ferred employees as a result of a discontinuanceof an acquired business constitutes deemed ter-mination by the predecessor employer, as inGenCorp, so too should a successor employer’sdiscontinuance of an acquired business, as car-ried at a particular location, constitute adeemed discontinuance by the predecessoremployer if it results in loss of employment bythe transferred employees, as in the present case(the PCO said as much in obiter comments inGenCorp, (1994), PCO Bulletin 5/3 (Fall 1994), atp. 62). It should make no difference that thepredecessor employer never carried on businessat that location just as it made no difference inGenCorp that the predecessor employer had nohand in the discontinuance of business. There is a similar relationship between the action ofthe successor employer and the predecessoremployer in the two situations — that is theemployees originally employed by the predeces-sor employer lost their jobs as a result of theaction of the successor employer. While clause(e) of subsection 69(1) of the Act does not referexplicitly to cessation of employment (althoughclause (d) does), this must be the necessaryresult of the discontinuance of business at a spe-cific location before the Superintendent canorder a wind up under clause (e). If there is adiscontinuance of business without any loss ofemployment, say where all the employees aretransferred to a new location, it seems self-evident that the Superintendent would not beauthorized to order a wind up of the pensionplan in relation to those employees.

The fourth argument that IOL made for distin-guishing the present case from GenCorp is thatthe roles of the Transferred Employees changedin the present case upon the sale of the busi-ness. In particular, some of them performed

functions thereafter in relation to the Petro-Canada, as well as the IOL, credit card programand other employees were integrated into thecredit card operations with the TransferredEmployees. But we do not know whether therewere comparable changes in the roles of thetransferred employees in GenCorp following thesale of the business as the reasons for decision,at the various levels in that case, are silent onthis point. In fact, the only important business-related consideration under clause (d) or (e) of subsection 69(1) of the Act, as read with sub-section 80(3), would seem to be whether thebusiness that was discontinued, or closed at aspecific location, by a successor employer was a business in which the transferred employeeswere working.

Finally, IOL submitted that all or a significantportion of the business carried on by GECapital (or GE Retailer) at a specific locationwas not discontinued with the closure of theToronto Business Centre because GE Capitalhad another Alden Road facility across theparking lot that provided card embossing andbilling services for the credit card business car-ried on at the Toronto Business Centre as wellas for other credit card businesses of GECapital. We are not persuaded, on the basis ofthe evidence we have heard, that there was suf-ficient physical and operational integration ofthe two Alden Road facilities that they shouldbe treated as part of a single specific businesslocation for the purposes of clause (e) of subsec-tion 69(1) of the Act nor was there any clearevidence that the credit card embossing facilitycontinued in operation after the closure of the Toronto Business Centre. Therefore, we arenot persuaded that the closure of that Centreinvolved something short of the discontinu-ance of business at a specific location.

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ConclusionWe conclude, therefore, that the Superinten-dent is authorized to order the partial wind upof the IOL Plan as proposed in the First Noticeof Proposal. The Superintendent’s exercise, inthe circumstances of the present case, of the dis-cretion involved in carrying out that authoritywas not challenged before us. IOL simply tookthe position that the Superintendent did nothave the authority to make the proposed order,a position that we have rejected for the reasonsset out above. Therefore, we order the Supe-rintendent to carry out the proposal containedin the First Notice of Proposal, subject to thequalification that the order of the Superin-tendent requiring the partial wind up of the IOL Plan should exclude from the partial windup group the three Transferred Employees who were re-employed by IOL upon the cessa-tion of their employment with GE Capital (orGE Retailer).

2. Are the former members of theIOL Plan who ceased employmentwith GE Capital between March,2000 and July, 2000 entitled tocredit in that Plan for any increase in age during their period ofemployment with GE Capital forthe purpose of determining enti-tlement to benefits under the IOLPlan pursuant to clause (c) of sub-section 80(1) of the Act?

In the Second Notice of Proposal, the Superin-tendent proposes to make an order that theadministrator of the IOL Plan give credit forboth age and years of service, as at the closureof GE Capital’s Toronto Business Centre, tothose members who ceased employment withGE Capital between March, 2000 and July,2000, as a result of that closure, when determin-

ing entitlement to benefits under the IOL Plan.IOL concedes that where clause (c) of subsection80(1) of the Act applies, it generally requires apension plan to take account of a member’s ser-vice with a successor employer and, conse-quently, any increase in age during that service.However, IOL disputes that this or any otherprovision of the Act would enable a member ofthe IOL Plan to “grow into” the particular agerequirements under section 4.3 of that Plan orotherwise satisfy the conditions for the opera-tion of that section.

Section 4.3 of the IOL Plan provides for anenhanced early retirement pension in the cir-cumstances that it prescribes, as follows:

4.3 Pension in Lieu of Termination Annuity

A Member with 10 years or more of Servicewhose employment is terminated by theCompany and who is eligible for a termina-tion annuity … and who will be eligible toretire … within five years of terminatingemployment [i.e. who is terminated whenbetween the ages of 50 and 55] may retire …and receive a pension … in lieu of a termi-nation annuity … if the Member’s employ-ment is terminated for reasons deemed bythe Company to be for maintaining orimproving the efficiency of its operations;provided, however, that the date of retire-ment for the purpose of receiving paymentof such pension shall not be effective untilthe last day of the month in which theMember attains age 55 …

For ease of reference, we set out, once again,some of the provisions of section 80 of the Act,a section which also figured into the determina-tion of the first issue in this case:

80. (1) Where an employer who contributesto a pension plan sells, assigns or otherwisedisposes of all or part of the employer’s busi-

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ness or all or part of the assets of theemployer’s business, a member of the pen-sion plan who, in conjunction with the sale,assignment or disposition becomes anemployee of the successor employer andbecomes a member of the pension plan ofthe successor employer,

…

(c) is entitled to credit in the employer’spension plan for the period of employmentwith the successor employer for the purposeof determining entitlement to benefitsunder the employer’s pension plan.

…

(3) Where a transaction described in subsec-tion (1) takes place, the employment of theemployee shall be deemed, for the purposesof this Act, not to be terminated by reasonof the transaction.

The Superintendent relied on clause (c) of sub-section 80(1) as requiring, for the purposes ofsection 4.3 of the IOL Plan, that IOL give creditfor any age progression of the TransferredEmployees while they were employed by GECapital (or GE Retailer), and subsection 80(3) asdeeming the circumstances of the terminationof those Employees to be circumstances of theirtermination, at the same time, by IOL, theiroriginal employer.

However, the deemed continuation-of-employ-ment provision of subsection 80(3) operates“for the purposes of [the] Act” and not for thepurposes of a pension plan subject to the Act.By contrast, the predecessor provision, in whatwas then subsection 29(2) of the Act, deemedemployment to continue “for the purposes ofthe employer’s plan”. The change in wordingshould be taken to be purposeful and to havesome practical effect. The Superintendentargued that the change in wording can be

explained by the fact that it coincided with the introduction into the Act of a requirementthat the administrator of a pension plan mustensure, under subsection 19(1), that a pensionplan is administered in accordance with the Act and of authority on the part of theSuperintendent, under subsection 87(2), tomake an order against the administrator requir-ing it to take action or refrain from takingaction in respect of a pension plan if of theopinion that the plan is not being administered“in accordance with [the] Act, the regulations or the plan” (emphasis added). The Superin-tendent suggested that “for the purposes of theAct”, therefore, now embraces “for the purposesof the pension plan” since the Act requires, ineffect, that every plan be administered in accor-dance with the plan. Consequently, it was possi-ble, in the Superintendent’s view, to move tothe new statement of purposes in subsection80(3) without losing the effect of the originalstatement of purposes in the predecessor subsec-tion 29(2).

We do not think that the use of a particularprinciple set out in the Act (as in subsection80(3)), in order to interpret a provision of apension plan (such as section 4.3 of the IOLPlan), can be said to be “for the purposes of theAct”. It might be so if the Act stated expresslythat the principle applied for the purposes ofany pension plan, so that use of the principle tointerpret the plan was, arguably, a purpose ofthe Act. But that is not the situation in the pre-sent case. We do not think that subsection 87(2)of the Act provides such an express statementfor all it says is that the Superintendent has theauthority to take enforcement action if there isa breach by the plan administrator of a provi-sion of a pension plan. That does not make theinterpretation of any such provision a purposeof the Act. What the Superintendent can

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enforce is the plan, properly interpreted.Subsection 87(2) does not purport to dictatehow the plan should be interpreted by superim-posing principles of the Act that do not apply,of their own force, to the plan.

The interpretation of section 4.3 of the IOLPlan, as it applies in the circumstances of thiscase, is not governed by the GenCorp decisionnor by the same principles that led us to applyGenCorp in resolving the first issue in the pre-sent case. GenCorp and its application in thiscase concern the effect of subsection 80(3) ofthe Act upon the operation of subsection 69(1)of the Act. The latter subsection refers, in claus-es (d) and (e), to the action of an “employer”, in the form of a business discontinuance orreorganization, as triggering the right of theSuperintendent to order the wind up of a pen-sion plan. The term “employer” is defined inthe Act, as noted in GenCorp, to include boththe original employer and a successor employer,so that it would cover IOL and GE Capital (orGE Retailer) in the present case. By comparison,section 4.3 of the IOL Plan refers to the actionof the “Company” and the rationale of the“Company” for that action. In particular, thesection takes effect where there is a terminationof employment by the Company and such termination is for reasons deemed by theCompany to be for maintaining or improvingthe efficiency of its operations. The term“Company” is defined, for the purposes of theIOL Plan, as meaning IOL and any affiliate designated by IOL for participation in the IOL Plan; the definition does not include a suc-cessor employer. Therefore, the termination ofemployment that is addressed by section 4.3 of the IOL Plan must mean, in the case of theTransferred Employees, their termination byIOL upon the sale of IOL’s credit card businessto GE Capital, not their subsequent termination

by GE Capital (or GE Retailer). Consequently,their entitlement to receive the benefit providedby section 4.3 must depend on their age at thetime of that termination, assuming it to havebeen “for efficiency reasons”. If they were age50 to 55 at that time, they would qualify for the benefit.

We are then left with the question of whetherthe latter conclusion is altered by clause (c) ofsubsection 80(1) of the Act, which says thatemployees in the position of the TransferredEmployees are entitled to credit in their employ-er’s pension plan for the period of their employ-ment with the successor employer for the pur-pose of determining entitlement to benefitsunder the employer’s plan. Clearly, this provi-sion does not attribute the actions of a successoremployer, in relation to any transferred employ-ees, to the original employer. It cannot, there-fore, overcome the requirement of section 4.3 ofthe IOL Plan that there must have been a termi-nation “by the Company” [i.e. IOL] for efficien-cy purposes before one gets to the question ofwhether an employee falls within the qualifyingage range for a section 4.3 benefit. The onlysuch termination that may have occurred, onthe facts we have before us, was in 1995 whenthe Transferred Employees moved to GE Capital.

ConclusionWe conclude, therefore, that none of theTransferred Employees could become entitled tothe benefit under section 4.3 of the IOL Plan byvirtue of the achievement of the age qualifica-tion for that benefit while in the employmentof GE Capital (or GE Retailer). Accordingly, weorder the Superintendent to refrain from carry-ing out the proposal contained in the SecondNotice of Proposal as it relates to determiningentitlement to the benefit under section 4.3 ofthe IOL Plan.

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William Forbes, Member of the Tribunal and of the Panel

REASONS FOR DECISION OF MS. GAVINFor the purposes of these Reasons, I adopt theStatement of Facts set out in the separateReasons for Decision of the other members ofthe panel that heard this case. The definedterms in those Reasons for Decision are used inthe same sense in these Reasons.

The panel was asked to consider two principalissues. The first issue is whether the Superin-tendent was entitled in the circumstances of thiscase to make an order, under clause (e) of sub-section 69(1) of the Act, requiring a partial windup of the IOL Plan. On this issue, I agree withmy colleagues that a partial plan wind up wasappropriate in the circumstances and I concur inthe order that they make as a result of their con-clusion on this issue.

The second issue is whether the former mem-bers of the IOL Plan who ceased employmentwith GE Capital between March 2, 2000 andJuly, 2000 are entitled to credit in that Plan for any increase in age during their period ofemployment with GE Capital for the purpose of determining entitlement to benefits underthe IOL Plan pursuant to clause (c) of subsec-tion 80(1) of the Act. On this issue, I disagreewith the reasoning of my colleagues.

IOL and the Superintendent agree that inNovember of 1995, as a result of IOL selling its“Esso” branded consumer and small commercialcredit card receivables to GE Capital, theTransferred Employees became entitled to the

benefit of section 80 of the Act. They became,in effect, a distinct group within the IOL Plan.They continued their membership in that Planand their subsequent service with GE Capital(and GE Retailer) would be used to determineentitlement to benefits under the Plan, in accor-dance with subsection 80(1) of the Act, andtheir subsequent termination by GE Retailerwould be deemed to be termination by IOL,principally as a result of the operation of sub-section 80(3) of the Act.

My colleagues conclude that subsection 80(3)cannot influence the resolution of the secondissue because it operates “for the purposes of[the] Act” and not for the purposes of a pensionplan subject to the Act. They rely on the factthat the Act was amended to substitute the for-mer phrase for the phrase “for the purposes ofthe employer’s plan”, which appeared in a pre-decessor provision to subsection 80(3) of theAct. As a result, they believe that the TransferredEmployees have not had their employment con-tinued for the purposes of determining entitle-ment to the benefit of any of the provisions ofthe IOL Plan. I disagree.

The Superintendent’s position is that the Actmust be read in its entirety, in which case thisamendment does not represent a significantchange since it was accompanied by furtheramendments requiring, in subsection 19(1), thata pension plan be administered in accordancewith the Act and conferring authority on theSuperintendent, under subsection 87(2), to orderthe administrator of a plan to take or refrainfrom taking any action when he or she believesthat the plan is not being administered in accor-dance with the Act, the regulations or the pensionplan. I believe this to be the correct approach.

However, in order to determine if an employeeor former employee is entitled to the benefit of

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a particular section of a pension plan, one mustlook at the plan for the determination of eligi-bility. Under section 4.3 of the IOL Plan, amember must have 10 or more years of service,have their employment terminated by theCompany for reasons deemed by the Companyto be for maintaining or improving the efficien-cy of its operations, be eligible for a terminationannuity, and be eligible to retire within fiveyears of terminating employment.

For the purposes of the IOL Plan, the term“Company” is defined as being IOL. Therefore, amember of the Plan must have their employmentterminated by IOL to be eligible for a benefitunder section 4.3 of the Plan since that provisionrelates to situations where there is a terminationby the “Company”. Therefore, I agree with mycolleagues that section 4.3 of the IOL Plan doesnot entitle the Transferred Employees to its bene-fit upon their termination by GE Retailer.

Since the order that my colleagues make inrespect of the second issue is limited to entitle-ment to the benefit under section 4.3 of the IOLPlan, I agree with that order even though I donot agree with all of the reasoning that led to it.


Heather Gavin, Member of the Tribunal and of the Panel

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Pension Bulletin

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The Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28 as amended, the PensionBenefits Act, R.S.O. 1990, c. P.8 as amended, R.R.O. 1990, Reg. 909 as amended, the terms of the pensionplan and trust, if any, and the policies, procedures and practices of FSCO should be considered in determining specific legal requirements, and professional advice should be sought.

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PLACESTAMPHERE

TABLE OF CONTENTS

THE FINANCIAL SERVICES COMMISSION OF ONTARIO

JANUARY 2003 • VOLUME 12, ISSUE 1

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General AnnouncementsImportant Notice to Administrators .................1

Introduction of Bill 198 ....................................2

Pension Division Staff Changes ........................3

Contacts for Plan Specific Enquiries .................3

Pension Advisory Committees — Membershipas at November 2002...................................4

Hearings/Court MattersEnforcement Matters .........................................5

Court Matters ....................................................6

Superintendent of Financial ServicesAppointment of Administrators —

Section 71 of the PBA..................................7

Notices of Proposal to Make an Order..............9

Notices of Proposal to Make a Declaration....................................37

Notices of Proposal to Refuse to Make an Order...........................................47

Orders that Pension Plans be Wound Up .................................................50

Consents to Payments of Surplus out of Wound Up Pension Plans..........................60

Declaration that the Pension Benefits Guarantee Fund Applies to Pension Plans — Subsection 83(1) of the PBA..................................................67

Allocations of Money from the Pension Benefits Guarantee Fund .............75

Tribunal ActivitiesAppointments of Tribunal Members...............81

Pension Hearings Before the Financial Services Tribunal........................................82

Financial Services Tribunal Decisions with Reasons..............................................95

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