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Federal Court Of Appeal Decision In The Application For Judicial Review In The Buschau Matter.

Article Excerpt
Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Pension & Employee Benefits, September 2009

Background On September 9, 2009, the Federal Court of Appeal released its decision in the Buschau case siding with Rogers and reinstating the decision of the Acting Superintendent of Financial Institutions (the Superintendent) permitting the pension plan in issue to be reopened to new plan members rather than requiring a plan termination and surplus distribution.

The decision of the Federal Court of Appeal is the latest chapter in a protracted series of litigation at both the provincial and federal level stemming from the acquisition by Rogers Communications Inc. (Rogers) of Premier Communications Ltd. (Premier) in 1980. When Rogers acquired Premier it tried to appropriate the actuarial surplus in the pension plan of Premier by way of a merger of the Premier pension plan (the Premier Plan) with other Rogers' pension plans (RCI Plans). The legal representative of members and former members of the Pension Plan for Employees of Premier Cable Systems Limited (the Members) initiated an action to regain the surplus, alleging that the merger was invalid and seeking to terminate the trust based on the common law rule in Saunders v. Vautier permitting a trust to be brought to an end when all of the beneficiaries consent. Engaging key trust and pensions law issues, the Buschau case was heard by the Supreme Court of Canada in 2006.

Ruling in favour of Rogers, the Supreme Court of Canada rejected the...

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