Nova Scotia Labour Board Finds Original Plan Documents Created Implied Trust
October 08, 2026
The Nova Scotia Labour Board (the "Board") has upheld a decision of the Nova Scotia Superintendent of Pensions (the “Superintendent”) denying an employer access to approximately $1.3 million in pension surplus following the partial wind-up of a defined benefit pension plan.
Under the Nova Scotia Pension Benefits Act, the Roman Catholic Episcopal Corporation of Halifax (the “Corporation”) partially . Following the partial wind-up, the plan's actuary identified a surplus of approximately $1.3 million. The Corporation applied to the Superintendent for consent to withdraw the surplus,
The Superintendent denied the Corporation’s application for the surplus, concluding that entitlement to surplus had to be determined by considering both the documents that created the plan and subsequent plan amendments, and that the 1973 plan did not permit surplus to revert to the employer. Instead, the 1973 provided that contributions were to be used exclusively for the benefit of members and beneficiaries and that any assets remaining on plan termination were to be used to provide additional benefits to members. The Corporation appealed the decision to the Board.
A key issue before the Board was whether the 1973 plan established a trust. Although the 1973 did not expressly use the word "trust," the Board determined that its language was sufficient to create an implied trust. In reaching this conclusion, the Board relied on provisions stating that contributions were for the exclusive benefit of members, that funds could not revert to the Corporation, and that any remaining assets on termination were to be used to purchase additional benefits for members. The Board held that these provisions constituted “imperative” language sufficient to establish an implied trust notwithstanding the absence of any express trust language.
Having found that the plan was subject to a trust from its inception, the Board concluded that subsequent plan amendments allowing surplus to revert to the employer (i.e., the current language the Corporation relied upon in its application for the refund) could not override the original trust obligations. The Board determined that the 1973 plan did not reserve a sufficiently clear amendment power that would permit the Corporation to amend the plan such that surplus could revert to the Corporation.
The Board ultimately upheld the Superintendent's decision and expressly declared that the 1973 plan was subject to a trust. Later provisions purporting to permit surplus to revert to the employer were found to be invalid.
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