Ontario Superior Court awards $210,000 in costs against pension regulator
August 04, 2022
In May 2022, the Ontario pension regulator, the Financial Services Regulatory Authority of Ontario (FSRA) was ordered to pay costs to opposing parties resulting from an unsuccessful challenge.
By way of background, in 2008, Brewers Retail made the decision to de-index its defined benefit pension plan for salaried employees. In 2013 an amendment to change indexation was opposed by a group of employees. Between 2013-2018 Brewers negotiated with Pension Stewardship Steering Committee, represented by counsel, to reach an agreement regarding indexation.
The negotiations ended with an agreement between the parties regarding the indexing issue — with the intention to use a class action to request court approval of the settlement agreement. In December 2018, the Financial Services Commission of Ontario (FSCO) confirmed that if the Court approved the settlement agreement FSCO would exercise its discretion to register the amendment.
That all changed when FSCO was replaced by FSRA in 2019. In 2020, FSRA rejected a plan amendment that reflected the agreement between Brewers and the Committee and issued a issued a Notice of Intended Decision (NOID) to that effect. Brewers challenged the NOID by requesting a hearing at the Financial Services Tribunal (FST) and filed an application with the Ontario Superior Court seeking certification of the class action. FSRA filed a motion seeking to intervene and sought to stay the class action proceedings, arguing that the FST should have jurisdiction over the dispute.
In February 2022, Justice Morgan certified the class action and dismissed FSRA’s motion. FSRA subsequently sought costs for their unsuccessful motion, which was rejected by Justice Morgan who stated:
“With respect, I see no justification for making the other parties pay costs for FSRA’s erstwhile successful motion to intervene in a case in which none of FSRA’s positions were accepted by the court,” he said. “FSRA’s intervention is precisely what caused the other parties to incur costs above and beyond the costs of a motion on consent.”
The judge awarded $159,000 to Brewers Retail, for costs claimed, as well as an additional $51,000 for the committee’s costs.
