COURT OF APPEAL FOR ONTARIO

CITATION: Vladescu v. CTVglobemedia Inc., 2013
    ONCA 448

DATE: 20130627

DOCKET: C55955

Doherty, MacPherson and Gillese JJ.A.

BETWEEN

Florina Vladescu

Plaintiff (Appellant)

and

CTVglobemedia Inc. and
    CTV Inc.

Defendants (Respondents)

Richard Greene and Michael Zalev, for the appellant

Frank Cesario and Stephanie Kalinowski, for the
    respondents

Heard: March 12, 2013

On appeal from the judgment of Justice J. Stephen ONeill
    of the Superior Court of Justice, dated July 20, 2012, with reasons reported at
    2012 ONSC 4233.

Gillese
    J.A.:

[1]

In 2002, could a member of a federally regulated pension
    plan assign his pre-retirement death benefit to his spouse?  If so, did certain
    provisions in a separation agreement amount to an assignment?  This appeal raises
    both questions.

OVERVIEW

[2]

Gabriel Filotti was a member of a federally regulated pension plan from
    1983 until he died in 2009.  The pension plan is governed by the
Pension Benefits Standards Act, 1985
, R.S.C. 1985, c.
    32 (2nd Supp.)
(the
PBSA
).

[3]

Mr. Filotti married Florina Vladescu in 1998.  On August 27, 2002, after
    the demise of their relationship, he and Ms. Vladescu entered into a separation
    agreement (the Separation Agreement) in which he represented that she was,
    and would continue to be, solely entitled to survivor benefits under his
    pension plan.  However, in another provision shortly thereafter in the Separation
    Agreement, Mr. Filotti agreed that if he were to later cohabit with another
    person or remarry, he would make all possible efforts to enter into an
    agreement with his future partner in which she would release all claims she had
    to his pension.

[4]

Mr. Filotti and Ms. Vladescu were divorced on March 20, 2003.

[5]

Mr. Filotti married Natalia Garanovscaia on April 18, 2004.

[6]

Mr. Filotti died on February 10, 2009.  At that time, he remained a
    member of the pension plan but was not entitled to an immediate pension.

[7]

Ms. Vladescu brought an action in which she claimed entitlement to all survivor
    benefits under the pension plan.  She then brought a summary judgment motion for
    an order requiring the plan administrator to pay to her Mr. Filottis
    pre-retirement death benefit.

[8]

The motion judge determined that:

1.  section 25(4)
    of the
PBSA
permitted Mr. Filotti to assign his pre-retirement death benefit
    to Ms. Vladescu,  but

2.  the relevant
    provisions of the Separation Agreement did not amount to an assignment of those
    benefits to her.

[9]

He dismissed Ms. Vladescus summary judgment motion and action, and ordered
    the plan administrator to pay the full amount of the pre-retirement death benefit
    to Ms. Garanovscaia.

[10]

Ms.
    Vladescu appeals.

[11]

For
    the reasons that follow, I would dismiss the appeal.  Those wishing to read the
    full text of the various statutory provisions referred to throughout are
    directed to Schedule A, located at the end of these reasons.  Those
    provisions were in force at the time Mr. Filotti died.

BACKGROUND

The Pension Plan

[12]

Mr.
    Filotti was a cameraman for CTV Inc.
[1]
(CTV).  He became a member of the Defined Benefit Retirement Plan for
    Employees of CTV Inc. (the Plan) in 1983.  He remained a member of the Plan until
    his death on February 10, 2009.

[13]

CTV
    is the administrator of the Plan and the respondent in this appeal.  The Plan
    is registered under the
PBSA
and the
Income Tax Act
,
    R.S.C. 1985,    c. 1 (5th Supp.).

The Meaning of Survivor
    Benefits

[14]

In
    that part of the Separation Agreement dealing with Mr. Filottis pension, the
    term survivor benefits is used.  Because survivor benefits is not a defined
    term in the
PBSA
, the Plan, or the Separation Agreement, its meaning is
    unclear.  Robin Borisko, Manager of Pensions at Bell Media Inc. (a successor
    corporation to CTV), deposed that survivor benefits is a generic term which can
    refer to two different types of benefits under the Plan.

[15]

First,
    survivor benefits can refer to a monthly survivor pension that is payable
    when a retired member dies. I offer a simple example of this type of survivor
    benefit.  A Plan member marries only once, stays in the Plan until retirement,
    and is married when (s)he retires.  On retirement, the Plan member would
    receive a monthly pension and, when the member dies, his or her spouse will receive
    a survivor pension.
[2]
This type of survivor benefit is also referred to as a survivor pension or a
    joint and survivor pension.

[16]

Second,
    survivor benefits can refer to a pre-retirement death benefit under s. 23 of
    the
PBSA
.  A pre-retirement death benefit arises when a Plan member dies
    before becoming eligible to receive an immediate pension.  The person who
    qualifies as the Plan members survivor is entitled to that portion of the
    pension benefit credit to which the member would have been entitled on the day
    of his or her death.  This type of survivor benefit is also referred to as a
    death benefit or the pre-retirement death benefit.

The Separation Agreement and
    Direction

[17]

Mr.
    Filotti and Ms. Vladescu were married on June 26, 1998.  When their marriage
    failed, they entered into the Separation Agreement.  Both had separate,
    independent legal advice throughout the negotiations that led up to the
    Separation Agreement and at the time it was executed.

[18]

Paragraph
    13 of the Separation Agreement deals with Mr. Filottis pension.  In it, the
    parties purport to deal with survivor benefits under the Plan.  Because of
    para. 13s critical role in this appeal, I set it out in full, below.  Mr.
    Filotti is referred to as the husband and Ms. Vladescu as the wife.

13.     HUSBANDS PENSION

13.1   The husband is entitled to a pension pursuant to the
    Defined Benefit Pension Plan for Employees of CTV Inc., Plan Registration
    Number PBSA55189.

13.2   The husband warrants and represents that the wife is
    solely entitled to full survivor benefits of his pension plan.

13.3   The wife shall continue to be the sole and exclusive
    person entitled to survivor benefits until the husbands death.

13.4   The husband agrees that he will not at any time do or
    refrain from doing any act or thing that would disentitle the wife to full
    survivor benefits of the said pension.  The husband will sign any
    documents that may be required by the Pension Administrator to give effect to
    this paragraph including but not limited to Schedule C annexed hereto.

13.5   The husband further agrees that should he cohabit with
    another person or remarry, he will make all possible efforts to enter into a
    Cohabitation Agreement or Marriage Contract wherein the wifes rights under
    this paragraph are recognized and his future wife or common-law wife releases
    all rights or claims of any kind or nature whatsoever to his pension.

13.6   Provided that the husband has complied with all of his
    obligations pursuant to this paragraph, the wife hereby releases all of her
    rights to the husbands pension except her rights pursuant to this paragraph.

[19]

Schedule
    C to the Separation Agreement, referred to in paragraph 13.4, reads as
    follows:

IRREVOCABLE DIRECTION

TO:    The Administration of the Defined Benefit Retirement Plan for
    Employees of CTV Inc.

AND TO WHOM IT MAY CONCERN:

RE:    Pension Plan Registration No. PBSA 55189

Gabriel Filotti Pension Holder No. 474 333 614

I, Gabriel Filotti, irrevocably authorize and direct you to pay
    all survivor benefits pursuant to the above pension to Florina Vladescu in the
    event of my death and this shall be your good and sufficient authority for so
    doing.

[20]

Schedule
    C was signed by Mr. Filotti and dated August 27, 2002 (the Direction).

[21]

Mr.
    Filotti and Ms. Vladescu were divorced by judgment dated March 20, 2003 (the
    Divorce Judgment).  The Divorce Judgment incorporates, by reference, para. 13
    of the Separation Agreement.

CTV Receives the Direction

[22]

In
    early July 2002  not long before the Separation Agreement was executed  CTV received
    a document from Mr. Filotti.  The document was entitled Group Registered
    Pension Plan Personal Information Change Form, dated July 2, 2002 and signed
    by Mr. Filotti (the First Change Form).

[23]

In
    the First Change Form, Mr. Filotti changed his beneficiary designation, and appointed
    Ms. Vladescu as his beneficiary, indicating that she was his wife and entitled
    to 100% of his pension benefits.

[24]

On
    November 5, 2002, CTV received a letter from Ms. Vladescus lawyer (the first
    November 5 letter).  Two documents were enclosed with the first November 5 letter:
    the Direction and Schedule B to the Separation Agreement.  Schedule B was a
    payroll deduction direction in relation to Mr. Filottis life insurance policy
    premiums.

[25]

The
    opening words in the first November 5 letter are:  Enclosed please find two
    (2) Irrevocable Directions executed by Mr. Gabriel Filotti .  Apart from these
    words, there is no mention of the Direction or Mr. Filottis pension in the
    first November 5 letter.

[26]

CTV
    gave a copy of the Direction to Cowan Wright Beauchamp (CWB),
[3]
the Plans recordkeeper.

[27]

After
    discussions with CWB about the nature of the Direction, CTV telephoned Ms.
    Vladescus lawyer to say that without a divorce decree or court order, CTV
    could not make changes to Mr. Filottis pension provisions.  A few days later, Ms.
    Vladescus lawyer told CTV to disregard the first November 5 letter because it
    had been sent in error.

[28]

Sometime
    in the two months that followed, Ms. Vladescus lawyer sent CTV another letter,
    also dated November 5, 2002 (the second November 5 letter).  Only the
    Direction was attached to the second November 5 letter.  The first paragraph of
    the second November 5 letter reads as follows:

Enclosed please find an Irrevocable Direction executed by Mr.
    Gabriel Filotti, an employee of your company, directing you to pay all survivor
    benefits, pursuant to the above pension to Florina Vladescu in the event of his
    death.

[29]

The
    second November 5 letter asked CTV to confirm that it had received the letter
    and Direction, and that the recipient employee of CTV was the person to whom
    the information should be sent.

[30]

CTV
    confirmed to Ms. Vladescus lawyer that it had received the second November 5 letter.
    It also advised that it had faxed a copy to CWB, and that it had placed the
    documents on its own file as well.

Mr. Filotti Marries for the
    Second Time

[31]

Mr.
    Filotti married Ms. Garanovscaia on April 18, 2004.

[32]

Mr.
    Filotti sent CTV a Plan Personal Information Change Form dated May 7, 2004 (the
    Second Change Form).  In it, he declared that Ms. Garanovscaia was his spouse
    for the purposes of the Plan and designated her as his primary beneficiary.

[33]

CTV
    forwarded the Second Change Form to CWB.  When CWB received it, they noticed
    that it was not consistent with the First Change Form or the Direction.  It
    asked CTV for instructions on how to deal with the Second Change Form.

[34]

CTV
    contacted Mr. Filotti and asked for clarification.  When it received no
    clarification from him, CTV maintained Ms. Vladescu as Mr. Filottis designated
    beneficiary.

[35]

However,
    in February of 2006, just before Mr. Filotti left on a work assignment in
    Kandahar, he completed a Declaration of Spousal Status in which he stated that
    he and Ms. Garanovscaia had been married on April 18, 2004.
[4]
In the declaration, Mr. Filotti also declared that no interest in my pension
    entitlement...has been assigned or granted by an agreement or court
    order.

[36]

Since
    CTV knew that Mr. Filotti had remarried, when he returned from Kandahar, it
    asked him for a copy of the Divorce Judgment.  During that conversation, Mr.
    Filotti told CTV: that he knew his current spouse, Ms. Garanovscaia, was
    entitled to his pension; that the Divorce Judgment only obligated him to use
    his best efforts to have Ms. Garanovscaia waive her rights to his pension; and,
    that Ms. Vladescu would not receive anything.

[37]

In
    early July 2006, Mr. Filotti gave CTV a copy of the Divorce Judgment.

[38]

CTV
    prepared a letter dated July 27, 2006.  It was addressed to Mr. Filotti and
    shows that a copy was to be sent to Ms. Vladescu.  In the July 27 letter, CTV set
    out its understanding of para. 13 of the Separation Agreement.  The relevant
    part of the July 27 letter reads as follows:

We cannot administer sections 13.2 and 13.3 [of the Separation
    Agreement].  It is not possible under the
Pension Benefits Standards
    Act
(PBSA) to maintain Ms. Vladescu as your spouse under the Plan, since,
    once you divorced, Ms. Vladescu ceased to qualify as your spouse.  Also,
    the [separation] agreement does not in our view constitute an assignment of any
    portion of your pension benefits credits to Ms. Vladescu.  While
section 13.5
requires you to make all possible
    efforts to have your new spouse waive her rights to survivor benefits, we
    understand that your current spouse has not done so.  Therefore, the Plan
    is not able to recognize Ms. Vladescu as your spouse under the Plan and she
    would not be entitled to any survivor benefits or to a portion of your pension.

...

If our interpretation does not reflect what you and Ms.
    Vladescu intended, please provide us with a certified copy of a revised court
    order as soon as possible.

[39]

On
    July 28, 2006, CTV met with Mr. Filotti and gave him a copy of the July 27 letter.
    CTV explained its view that there had been no assignment of his pension entitlement
    to Ms. Vladescu and that if Mr. Filotti had a qualifying spouse when he died,
    that person would receive his pension benefits, not Ms. Vladescu.  Mr. Filotti
    said that was what he had intended and expected.

[40]

CTV
    provided evidence to show that it sent Ms. Vladescu a copy of the July 27
    letter.  Ms. Vladescu says that she never received it.

[41]

At
    the time Mr. Filotti died, he and Ms. Garanovscaia were separated, but not
    divorced.

The Pre-retirement Death Benefit

[42]

Mr.
    Filloti died on February 10, 2009.  Because he died before he was eligible to
    receive an immediate pension benefit, a pre-retirement death benefit became
    payable from the Plan.  The commuted value of this benefit, as of February
    20, 2009, was calculated by the Plans actuaries to be $445,285.47.

THE DECISION UNDER APPEAL

[43]

Ms.
    Vladescu started an action in which she claimed entitlement to all survivor benefits
    flowing from Mr. Filottis membership in the Plan.  She then brought a summary
    judgment motion in which she sought an order requiring CTV to pay her Mr.
    Filottis pre-retirement death benefit.

[44]

CTV
    responded to the motion in its role as Plan administrator.  It submitted that
    s. 25(4) of the
PBSA
did not permit Mr. Filotti to assign his pre-retirement
    death benefit to Ms. Vladescu and, in any event, para. 13 of the Separation
    Agreement did not amount to an assignment.  Its position was that the pre-retirement
    death benefit, together with accrued interest, was payable to Ms. Garanovscaia.

[45]

By
    judgment dated July 20, 2012 (the Judgment), the motion judge dismissed Ms.
    Vladescus summary judgment motion and action, and ordered CTV to pay the
    pre-retirement death benefit to Ms. Garanovscaia.

[46]

The
    motion judge held that pursuant to s. 25(4) of the
PBSA
, Mr. Filotti
    could assign his pre-retirement death benefit to Ms. Vladescu.  He noted that
    s. 25(4) is an exception to the general prohibition against assigning any
    interest in a pension.  Section 25(4) allows a member to assign

all

or
    part
of

the members pension

benefit,

pension

benefit

credit

or

other benefit

under

the

plan to the members spouse or former
    spouse, in the context of the breakdown of a spousal relationship.  He accepted
    that s. 25(4) encompassed the pre-retirement death benefit, saying that had
    Parliament intended to preclude the assignment of a pre-retirement death
    benefit, it ought to have said so in clear and unambiguous language.

[47]

However,
    the motion judge concluded that para. 13 of the Separation Agreement did not
    amount to an assignment.  He reasoned as follows.

[48]

An
    assignment is inherently irrevocable because once an interest is assigned,
    generally the assignor cannot take it back.  But para. 13.5 of the Separation
    Agreement specifically contemplated that Mr. Filotti might cohabit with another
    or remarry, in which case he would be obliged to make all possible efforts to
    have the future wife or common law spouse release her claim to his pension.  That
    is, para. 13.5 expressly contemplated that a future spouse might not release
    her rights to Mr. Filottis pension and that her rights would trump those of
    Ms. Vladescu.  Thus, despite the wording of other parts of para. 13 and the
    Direction, para. 13.5 was an acknowledgment that a full or complete transfer or
    assignment of the pre-retirement death benefit might not be possible.

THE ISSUES

[49]

On
    appeal, Ms. Vladescu raises a single issue:  did the motion judge err in
    finding that Mr. Filotti had not assigned his pre-retirement death benefit to
    her?

[50]

CTV
    contends that the motion judge correctly decided the assignment issue but that
    he erred in his interpretation of s. 25(4).  It asks this court to decide a
    second issue: did the motion judge err in holding that s. 25(4) of the
PBSA
permitted
    Mr. Filotti to assign his pre-retirement death benefit to Ms. Vladescu?  If so,
    that would provide an alternative reason for dismissing the appeal.

DID MR. FILOTTI ASSIGN HIS PRE-RETIREMENT DEATH BENEFIT TO MS.
    VLADESCU?

[51]

As
    previously noted, at the time of Mr. Filottis death, he and Ms. Garanovscaia
    were separated, but not divorced.  Thus, for pension purposes, Ms. Garanovscaia
    was Mr. Filottis spouse at the time of his death.

[52]

Accordingly,
    as I will explain, under the relevant
PBSA
provisions, Ms. Garanovscaia was
    entitled to the pre-retirement death benefit unless Mr. Filotti could have, and
    did, assign that benefit to Ms. Vladescu, in writing.

The Relevant
PBSA
Provisions

[53]

The
PBSA
creates a presumptive entitlement to the pre-retirement death
    benefit in favour of a surviving spouse.  Specifically, on the date of Mr.
    Filottis death, s. 23(1) provided that if a pension plan member died before
    becoming eligible to receive an immediate pension benefit, his or her survivor was
    entitled to that portion of the pension benefit credit to which the  member
    would have been entitled on the day of death.  The amount to which the
    survivor is entitled is termed the pre-retirement death benefit.

[54]

Section
    23(1) read, at that time, as follows:

23.

(1)

If

a

member

or

former

member

of

a

pension

plan

who

is
    entitled

to

a

deferred

pension

benefit

pursuant

to

subsection

17(1) (or,

in

the

case

of

a

member,

would

be

so

entitled

if

the

member ceased

membership

in

the

plan)

dies

before

becoming

eligible

to receive

an

immediate

pension

benefit

in

accordance

with

subsection
    16(2),

the

survivor
,

if

any,

is

entitled

to

that

portion

of

the

pension
    benefit

credit,

calculated

in

accordance

with

section

21,

to

which

the
    member

or

former

member

would

have

been

entitled

on

the

day

of death

if

the

member

or

former

member

had

terminated

employment on

that

day

and

had

not

died,

that

is

attributable

to

the

member's

or former

member's

membership

in

the

plan

after

December

31,
    1986. [Emphasis added.]

[55]

Because
    Mr. Filotti had no common law partner at the time of his death and Ms.
    Garanovscaia remained as his spouse at that time, she is the survivor for the
    purposes of s. 23.  This can be seen from the definition of survivor in s. 2.

2. (1)  In this Act,

survivor, in relation to a member
or
    former member,
means

(a)
if there is no person described in
    paragraph (b), the spouse of the member
or former member
at the
    time of the members
or former members
death
, or

(b) a person who was the common-law partner of the
    member or former member at the time of the members or former members death; [Emphasis
    added.]

[56]

Therefore,
    Ms. Garanascovscaia is presumptively entitled to the pre-retirement death
    benefit.

[57]

The
    surviving spouses statutory priority to the members pre-retirement death benefit
    is underscored by s. 23(5), which precludes the surviving spouse from surrendering
    his or her entitlement to that benefit prior to the members death.  Section
    23(5) reads as follows:

23. (5)

A

pension

plan

may

provide

that

a survivor may, after the death of a member

or

former

member,

surrender, in writing, the pension
    benefit or pension benefit credit to which the survivor is entitled under this
    section

and

designate

a

beneficiary

who

is

a

dependant,

within the

meaning

of

subsection

8500(1)

of

the

Income

Tax

Regulations
,

of the

survivor,

member or

former

member. [Emphasis
    added.]

[58]

In
    contrast, a spouse may release or waive his or her entitlement to
post
-retirement
    pension benefits, prior to the members retirement, by completing a prescribed
    form: s. 22(5).

[59]

The
PBSA
declares void any agreement or arrangement to assign any benefit
    provided under a pension plan:  s. 36(2).  However, s. 36(3)(b) creates an
    exception to this prohibition.  It permits the assignment of an interest in a
    pension benefit, where the assignment is made under s. 25(4) pursuant to a
    written agreement.

[60]

The
    applicable versions of ss. 36(2) and (3) read as follows:

36. (2)

Any

agreement
or

arrangement

to

assign
,

charge,

anticipate

or give

as

security

(a)

any benefit provided under a pension plan
,

or

(b)

any

money

withdrawn

from

a

pension

fund

pursuant

to

section

26

is

void.

36. (3)

Subsection (2) does not apply to prevent the
    assignment of an interest in a pension benefit
,

or

in

a

life-annuity

of

the

prescribed

kind resulting

from

a

transfer

or

purchase

pursuant

to

section

26,

where the assignment

(a)

is

ordered

by

a

court

pursuant

to

provincial

property

law

(within the

meaning

of

subsection

25(
1
));

or

(b)

is made under subsection 25(4) pursuant to a written
    agreement
.  [Emphasis added.]

[61]

Section
    25(4) provides that on marriage breakdown, a member may assign all or part of the
    members pension benefits to the members spouse or former spouse.  It reads as
    follows:

25. (4)

Notwithstanding

anything

in

this

section

or

in

provincial

property law,

a member

or

former

member

of

a

pension

plan

may assign all or part of that person's pension
    benefit, pension benefit credit or other benefit under the plan to that
    person's spouse
,

former

spouse, common-law

partner

or

former

common-law

partner,

effective as of
divorce,

annulment,

separation
,

or

breakdown

of

the

common-law partnership,

as

the

case

may

be, and in the event of such an assignment
    the assignee shall, in respect of the assigned portion of the

pension

benefit,

pension

benefit

credit

or

other

benefit,
    be deemed for

the

purpose

of

this

Act,

except

subsections

2
1
(2)

to

(6),

(a)

to
    have

been

a

member

of

that

pension

plan, and

(b)

to

have

ceased

to

be

a

member

of

that

pension

plan

as

of

the effective

date

of

the

assignment,

but

a

subsequent

spouse

or

common-law

partner

of

the

assignee

is not

entitled

to

any

pension

benefit,

pension

benefit

credit

or

other
    benefit

under

the

pension

plan

in

respect

of

that

assigned

portion. [Emphasis added.]

The Meaning of Assignment

[62]

The
    word assignment is not defined in the
PBSA
.  Its ordinary legal meaning
    is the act of transferring, to another, all or part of ones property,
    interest, or rights: B. Garner, ed., Blacks Law Dictionary, 8
th
ed.
    (St. Paul, MN: Thomson West, 2004), at p. 128.  In
Trick v. Trick
(2006),
    81 O.R. (3d) 241, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 388,
    at para. 47, this court similarly described an assignment in the pension
    context as a transfer of rights to the pension.

[63]

CTV
    contends that, in the pension context, nothing short of specific, clear and
    unambiguous language is sufficient to effect an assignment.  I agree.  As we
    have seen, a surviving spouse has a statutory priority to the pre-retirement
    death benefit.  If the statutorily created presumptive entitlement can in fact
    be ousted by assignment under s. 25(4), clear language is necessary to achieve
    that ouster.  Furthermore, clear language is also necessary for pension plan
    administrators to determine to whom payments are to be made and, thereby, fulfill
    their statutory obligation to administer plans and funds in accordance with the
PBSA
: s. 7.4.

The Written Agreement Requirement

[64]

As
    we have seen, s. 36(3)(b) of the
PBSA
permits the assignment of an
    interest in a pension benefit, where the assignment  is made under subsection
    25(4) pursuant to a written agreement.

[65]

Ms.
    Vladescu submits that this requirement is met by any of three documents: the
    Direction, the Divorce Judgment or the Separation Agreement.  In my view, only para.
    13 of the Separation Agreement can possibly qualify as an assignment made
    under s. 25(4) pursuant to a written agreement.

[66]

The
    Direction is no more than what it purports to be:  a direction and
    authorization that CTV pay survivor benefits to Ms. Vladescu.  The essence of
    an assignment, as we have seen, is the transfer of rights.  The Direction
    directs and authorizes  it does not indicate any intent to transfer rights.  The
    Direction is not an assignment.

[67]

Nor
    is the Divorce Judgment.  In the Divorce Judgment, para. 13 of the Separation
    Agreement (among others) is set out and is said to form part of it.  The
    Divorce Judgment does not purport to transfer Mr. Filottis pension rights to
    Ms. Vladescu.

[68]

Before
    considering whether para. 13 of the Separation Agreement constitutes an
    assignment of Mr. Filottis pre-retirement death benefit to Ms. Vladescu, it is
    useful to consider this courts decision in
Ontario Teachers Pension Plan
    Board v. Ontario (Superintendent of Financial Services) (
2004), 70 O.R.
    (3d) 61 (
Stairs
).

The
Stairs
Decision

[69]

I
    begin with a note of caution.
Stairs
was decided under the Ontario
Pension
    Benefits Act
, R.S.O. 1990, c. P.8 (the
PBA
).  The assignment
    regime under the
PBSA
is very different from the
PBA
regime that
    operated when
Stairs
was decided.  Among other things, at the time that
Stairs
was decided, the
PBA
did not provide for immediate division of
    pension benefits, instead using an if and when scheme.  Much of the reasoning
    in
Stairs
is driven by the provisions of the
PBA
and the particular
    pension plan in issue.  Given the significant differences in the statutory
    regimes and pension plan documents in the two cases, extreme caution must be
    exercised when considering the reasoning in
Stairs
and how it might
    inform the present case.

[70]

The
Stairs
case involved Mr. Mowbray, a schoolteacher, and his former spouse,
    Ms. Stairs.  They entered into a separation agreement after 29 years of
    marriage.  He had contributed to his pension with the Ontario Teachers Pension
    Plan (the Teachers Plan) for 25 of those years.

[71]

In
Stairs
, the issue for the court was whether Mr. Mowbray had the right to
    assign his pre-retirement death benefit to Ms. Stairs, by way of domestic
    contract, in the absence of an express power of assignment in the
PBA
.

[72]

This
    court held that Mr. Mowbray had an assignable interest in the pre-retirement
    death benefit that might become payable under the Teachers Plan on his death.
    His interest in the Teachers Plan was not confined to the deferred benefits to
    which he would become entitled on retirement.

[73]

Further,
    this court found that, pursuant to para. 10(4) of the separation agreement
    between Mr. Mowbray and Ms. Stairs, Mr. Mowbray had assigned an interest in the
    pre-retirement death benefit to Ms. Stairs (the
Stairs
assignment
    clause).  The
Stairs
assignment clause reads as follows:

10 (4) In the event a death benefit becomes payable under the
    pension and the wife is not the only surviving spouse of the husband then the
    wife will be entitled to an interest in the death benefit as follows:

twenty-five (25) years of married cohabitation during which
    pension contributions were made, divided by the total number of years (or
    portion thereof) during which contributions have been made to date of death,
    times the death benefit payable.

[74]

As
    I have noted, there are significant differences between
Stairs
and the
    present case.  Nonetheless, as will become evident, the
Stairs
assignment
    clause can be usefully compared to para. 13 of the Separation Agreement.

Paragraph 13 of the
    Separation Agreement

[75]

I
    turn now to para. 13 of the Separation Agreement and ask: does it amount to an
    assignment?

[76]

In
    my view, it does not.

[77]

Paragraphs
    13.2  13.5 of the Separation Agreement are the most germane to the question of
    assignment.  For ease of reference, I set them out again now.

13.2   The husband warrants and represents that the wife is
    solely entitled to full survivor benefits of his pension plan.

13.3   The wife shall continue to be the sole and exclusive
    person entitled to survivor benefits until the husbands death.

13.4   The husband agrees that he will not at any time do or
    refrain from doing any act or thing that would disentitle the wife to full
    survivor benefits of the said pension.  The husband will sign any
    documents that may be required by the Pension Administrator to give effect to
    this paragraph including but not limited to Schedule C annexed hereto.

13.5   The husband further agrees that should he cohabit with
    another person or remarry, he will make all possible efforts to enter into a
    Cohabitation Agreement or Marriage Contract wherein the wifes rights under
    this paragraph are recognized and his future wife or common-law wife releases
    all rights or claims of any kind or nature whatsoever to his pension.

[78]

In
    para. 13.2, Mr. Filotti warrants and represents that Ms. Vladescu was solely entitled
    to full survivor benefits under the Plan.  Paragraph 13.2 does not purport to
    assign or transfer Mr. Filottis rights or interests under the Plan.  It simply
     and correctly  describes Ms. Vladescus entitlement in respect of Mr.
    Filottis pension benefits at the time that the Separation Agreement was
    executed.

[79]

At
    that time, as Mr. Filottis spouse, Ms. Vladescu was entitled to his survivor
    benefits, in both senses of the term.  As I explained, in this case, survivor
    benefits can refer to (1) a joint and survivor pension, or (2) the surviving
    spouses entitlement to the pre-retirement death benefit under s. 23(1) of the
PBSA
.
    At the time the Separation Agreement was executed, it was unknown when Mr.
    Filotti would die.  Depending on the timing of his death, one or other form of
    survivor benefit would become available.  Whichever benefit became available,
    as his spouse, Ms. Vladescu would have been entitled to it.

[80]

Thus,
    as I have said, para. 13.2 is an acknowledgment of Ms. Vladescus legal rights
    at the time the Separation Agreement was executed.  It was not a transfer of
    rights nor did it purport to be.

[81]

What
    of paras. 13.3 and 13.4?  At first blush, they might appear to be an
    assignment, by Mr. Filotti to Ms. Vladescu, of his rights and interests in the
    Plan.  I have concluded, for two reasons, that they are not.

[82]

First,
    in light of para. 13.5, as a matter of logic, paras. 13.3 and 13.4  cannot be
    interpreted as an assignment of the pre-retirement death benefit to Ms.
    Vladescu.  Paragraph 13.5 does not state that Ms. Vladescu is entitled to the
    death benefit notwithstanding a subsequent spouse.  On the contrary, it is an
    express recognition that a subsequent spouse would have a superior claim to
    that benefit.  If the intent of the parties was that Mr. Filotti would transfer
    all of his rights in the pre-retirement death benefit to Ms. Vladescu, why
    would they have included a provision in which a subsequent spouse could take that
    very right?

[83]

Second,
    paras. 13.3 and 13.4 do not contain sufficiently clear and unambiguous language
    to amount to an assignment.  The word assign is not used.  While that failure
    is not fatal, it is telling, given that both Mr. Filotti and Ms. Vladescu had
    legal advisors when the Separation Agreement was negotiated and executed.  Nor
    do paras. 13.3 and 13.4 contain language in which Mr. Filotti agrees to
    transfer a specific interest in his pension to Ms. Vladescu.  For example,
    para. 13.3 states that Ms. Vladescu shall continue to be entitled to
    survivors benefits.  That is not the language of a transfer of interest.
    Further, as previously discussed, there is a lack of clarity in the term
    survivor benefits.  Did the parties intend to include the pre-retirement
    death benefit, a post-retirement survivor pension, or both?

[84]

The
    assignment clause in
Stairs
stands in stark contrast to para. 13 of the
    Separation Agreement.  In
Stairs,
the benefit being assigned/transferred
    is clearly described  a death benefit.  Its nature as a contingent
    entitlement is also clearly spelled out  [i]n the event a death benefit
    becomes payable.  The assignment clause in
Stairs
also clearly and
    unambiguously sets out what part of the death benefit was being transferred: twenty
    five years, divided by the total number of years during which Mr. Mowbray made
    contributions to the Teachers Plan, multiplied by the amount of the death
    benefit.  And, in
Stairs
, Mr. Mowbray did not attempt to transfer any
    interest in the death benefit that might accrue to a future spouse.  Rather, he
    assigned only that portion of the death benefit that had accrued during his marriage
    to Ms. Stairs.  In fact, in
Stairs
, the parties expressly contemplated
    the existence of a future spouse and carved out, with specificity, Ms. Stairs
    entitlement.

[85]

In
    short, a comparison of the assignment clause in
Stairs
with para. 13 of
    the Settlement Agreement makes evident the lack of clarity and specificity in
    the latter.  Further and most importantly, it highlights the significance of para.
    13.5, which reveals that the parties to the Separation Agreement recognized that
    a future spouse would be entitled to Mr. Filottis pension benefits, including
    the pre-retirement death benefit, unless the future spouse released her rights
    to those benefits.  Such recognition cannot be reconciled with the fundamental
    nature of an assignment, which is the transfer of rights to the assignee.

The
Hay
Decision

[86]

Ms.
    Vladescu also relies on
Teamsters & Participating Employers of Ontario
    Pension Plan v. Hay
(2003), 65 O.R. (3d) 744 (ON SC) (
Hay
).  I do
    not find that
Hay
assists her.

[87]

The
    facts in
Hay
are these.  Daphne Linthwaite and Donald Linthwaite were
    married on August 20, 1946.  During the marriage, Mr. Linthwaite became a
    member of the Teamsters pension plan, which was governed by the
PBSA
.
    On August 16, 1984, Ms. Linthwaite and Mr. Linthwaite entered into a separation
    agreement containing the following provision:

The husband warrants that he has irrevocably elected to receive
    normal pension benefits from his place of employment and the husband agrees
    to appoint the wife as beneficiary of his employment pension plan and, subject
    to subparagraph (f), the husband further agrees not to change this appointment
    without the wifes consent.

[88]

A
    copy of the separation agreement was sent to the pension plan administrator.

[89]

When
    Mr. Linthwaite submitted his application to receive a pension, he named Ms.
    Linthwaite as his spouse and a joint annuitant with him.  The calculation of
    his pension benefit, and the amount that would go to Ms. Linthwaite on his
    death, was based on his application and took into consideration, among other
    things, their respective ages.

[90]

Four
    years after the separation agreement was executed, Mr. Linthwaite entered into
    a common law relationship with Ruth Hay, which continued until his death.  In
    his will, Mr. Linthwaite purported to transfer his pension benefits to Ms.
    Hay.

[91]

After
    Mr. Linthwaites death, the plan administrator began making payments under the
    plan to Ms. Linthwaite.  When Ms. Hay claimed them under the will, the payments
    were suspended.  A court application was commenced to determine which of Ms.
    Linthwaite and Ms. Hay was entitled to the benefits.

[92]

The
    application judge found in favour of Ms. Linthwaite.  He held that Ms.
    Linthwaite had been designated the beneficiary of the survivor benefits and
    that the will had not revoked that designation.  Accordingly, Ms. Linthwaite
    was entitled to the pension benefits.

[93]

Hay
is very different from the present case in two key ways.  First,
Hay
was
    decided as a matter of a beneficiary designation, not assignment.  Second, it
    is critical to understand the differences in the timing of the vesting of
    interests.  Ms. Linthwaites interest in Mr. Linthwaites pension vested prior
    to his death whereas Ms. Vladescus interest could not arise before Mr.
    Filottis death.  These timing issues, as I explain, are critical.

[94]

At
    the time that Mr. Linthwaite retired, he declared Ms. Linthwaite to be his
    spouse for purposes of the pension plan.  His pension and the survivor pension were
    calculated accordingly.  At that point at the latest, in my view, Ms.
    Linthwaites interest in his pension benefit became vested.  In light of para.
    10.4 of the separation agreement, excerpted above, Mr. Linthwaite could not have
    unilaterally changed the beneficiary designation.  Moreover, once Ms.
    Linthwaites interest vested, the survivor benefit was no longer Mr.
    Linthwaites to deal with.  A will speaks from the date of death.  At Mr.
    Linthwaites death, he had already disposed of the survivor interest in his
    pension  Ms. Linthwaite had a vested interest in it.  Accordingly, Mr.
    Linthwaite had no remaining interest in his pension that he could dispose of.
    Thus, despite the wording of the will, Ms. Hay could take no interest in his
    pension.

[95]

In
    the present case, as we have seen, any entitlement to the pre-retirement death
    benefit that Ms. Vladescu might have under the Separation Agreement was subject
    to the rights of a future spouse or partner by virtue of para. 13.5. By the
    time of Mr. Filottis death, he had a qualifying spouse with statutory priority
    who took because he had not validly assigned entitlement to the pre-retirement
    benefit to Ms. Vladescu.

Conclusion on the
    Assignment Issue

[96]

Ms.
    Vladescu also argued that the Separation Agreement, Direction and Divorce
    Judgment amount to an equitable assignment of the pre-retirement death
    benefit.  She relies on
Lawson Graphics Pacific Ltd. v. Simpson
(1987),
    B.L.R. 223 (B.C.S.C.), at para. 32, in which Southin J. adopted the proposition
    that [n]o particular form of words is necessary [to constitute an equitable
    assignment] so long as the words clearly show an intention that the assignee is
    to have the benefit of the chose in action.

[97]

It
    is not clear to me that equitable assignment is available in the circumstances
    of this case, particularly in light of the wording of s. 25(4).  However, and
    in any event, para. 13 of the Separation Agreement fails, for the reasons set
    out above, to clearly show an intention that Ms. Vladescu was to have the
    benefit of the pre-retirement death benefit.

[98]

I
    end on this issue with an important observation.  My conclusion that para. 13
    of the Separation Agreement does not amount to an assignment of the pre-retirement
    death benefit to Ms. Vladescu does not render para. 13 meaningless.  Had Mr.
    Filotti not remarried, he had the right to name a third party as his
    beneficiary under the Plan.  Paragraph 13 of the Separation Agreement coupled
    with the Direction, which it will be recalled expressly states that it was irrevocable,
    would have rendered any such attempt ineffective.  Indeed, had Mr. Filotti died
    without a qualifying spouse, CTV advises that it would have treated the
    Direction as an irrevocable beneficiary designation and Ms. Vladescu would have
    been entitled to the pre-retirement death benefit.

DID THE
PBSA
PERMIT ASSIGNMENT OF PRE-RETIREMENT DEATH
    BENEFITS?

[99]

CTV
    asks this court to find that the motion judge erred in determining that s.
    25(4) of the
PBSA
permits the assignment of pre-retirement death
    benefits.  Its position on this issue can be summarized as follows.

[100]

A pre-retirement
    death benefit can only arise when a member dies before becoming eligible to
    receive an immediate pension.  It cannot be calculated until the member dies.
For example, in this case, at the time the Separation
    Agreement was entered into,

no one knew when Mr. Filotti would die, how long he
    would work, what his future earnings would be, and when and whether he would live
    to retirement.

[101]

Sectio
n
2
5(
4
) deems
th
e
assigne
e
spouse to be
a
"former member
"
a
s
o
f
th
e
dat
e
o
f
th
e
assignment.
    Section

25(5)

requires

the

administrator to determine

and administer

the
assigned benefit
in
    the prescribed

manner".  This means
    that the administrator has, vis-à-vis the assignee,
obligations in respect of such things as portability and o
ption
    statements.  Those things cannot be done unless the administrator knows what
    the assignees entitlement is, but that cannot be known because the member is
    not yet dead.

[102]

In short, CTV says, the scheme of the
PBSA
is to require
    an immediate division on assignment but that is impossible because entitlement
    to, and valuation of, the pre-retirement death benefit cannot be determined
    until the members death.  The
only pension
interests
    that can be assigned under s. 25(4) are those that are

fully

ascertainable

at

the

time

of

the

assignment.
    Pre-retirement death benefits do not fit that requirement so they cannot be
    assigned under s. 25(4).

[103]

On the other hand, as the motion judge pointed out, the language
    of s. 25(4) is very broad.  It enables a member to assign all or any part of
    the members pension benefit, pension benefit credit or other benefit under
    the plan to the members spouse or former spouse, in the context of the
    breakdown of a spousal relationship.  A pre-retirement death benefit would
    appear to fit within the meaning of other benefit under the plan, and
    possibly, pension benefit credit.  Further, for the reasons already given,
    while caution must be used when considering the
Stairs
decision, there
    is language in it which supports such an interpretation.

[104]

It is readily apparent that this is a very difficult issue.  In light
    of my conclusion that Mr. Filotti did not assign his pre-retirement death
    benefit to Ms. Vladescu, it is not necessary to decide it and I decline to do
    so.  Its resolution could have an impact on many people beyond the parties to
    this proceeding.  In my view, it is best to leave this issue for determination in
    a case in which the outcome depends on it and where the record is far more
    complete.

DISPOSITION

[105]

Accordingly, I
    would dismiss the appeal with costs to the respondent in the agreed upon amount
    of $10,000, all inclusive.

Released:

JUN 27 2013                                    E.E.
    Gillese J.A.

EEG                                                I
    agree Doherty J.A.

I
    agree J.C. MacPherson J.A.

SCHEDULE A

Pension Benefits Standards Act, 1985
,
R.S.C. 1985, c. 32 (2nd
    Supp.)

Note: This version was in force from April 1, 2005 to March
    20, 2009.

Definitions

2
.
(1)
In this Act,

survivor, in relation to a member or former member,
    means

(a)  if there is no person described in paragraph
    (b), the spouse of the member

or former member at the time of the
    members or former members death, or

(b) a person who was the common-law partner of the
    member or former member at the time of the members or former members death

Administration of Pension Plans

Duties of administrator

7.4.
(1)
The administrator of a pension plan shall, in accordance with
    this Act and the regulations, administer the pension plan and the pension fund
    and file the required documents.

Post-Retirement

Meaning of normal form
    of the pension benefit

22.
(1)
In this section, normal form
    of the pension benefit means the form of pension benefit under a pension plan
    that would be paid to a member at pensionable age were it not for this section.

Joint and survivor
    pension benefit

22. (2)
A pension benefit that commences to be paid on or after January
    1, 1987 to a member or former member of a pension plan who has a spouse or
    common-law partner at the time the pension benefit commences to be paid shall
    be in the form of a joint and survivor pension benefit, subject to subsection
    25(7).

Reduction by reason of
    death

22. (3)
A pension benefit described in subsection (2) may be reduced by
    reason of the death of either spouse or common-law partner, to an amount not
    less than sixty per cent of the amount of the pension benefit that would have
    been payable in respect of the member or former member had the death not
    occurred.

Initial adjustment

22. (4)
The initial amount of a pension benefit described in subsection
    (2) may be adjusted, provided that the actuarial present value of that pension
    benefit is not less than the actuarial present value of the normal form of the
    pension benefit.

Other forms of pension
    benefit

22. (5)
Notwithstanding subsections (2) to (4), a pension plan shall
    provide that, in respect of a pension benefit that commences to be paid on or
    after January 1, 1987, a member or former member may elect to receive

(
a
) the normal form of the pension
    benefit, or

(
b
) the pension benefit in any other
    form provided for under the terms of the plan,

except that, where the
    member or former member has a spouse or common-law partner, an election as a
    result of which the pension benefit would reduce on the death of the member or
    former member, where the member or former member predeceases the spouse or
    common-law partner, to less than sixty per cent of the amount payable when both
    were alive, may not be made without the spouses or common-law partners
    written agreement, in prescribed form and deposited with the administrator of
    the plan.

Pre-retirement Death

Benefit

If

member

dies

before

eligible

for

early

retirement

23.

(1)

If

a

member

or

former

member

of

a

pension

plan

who

is
    entitled

to

a

deferred

pension

benefit

pursuant

to

subsection

17(1) (or,

in

the

case

of

a

member,

would

be

so

entitled

if

the

member ceased

membership

in

the

plan)

dies

before

becoming

eligible

to receive

an

immediate

pension

benefit

in

accordance

with

subsection 16(2),

the

survivor,

if

any,

is

entitled

to

that

portion

of

the

pension
    benefit

credit,

calculated

in

accordance

with

section

21,

to

which

the
    member

or

former

member

would

have

been

entitled

on

the

day

of
    death

if

the

member

or

former

member

had

terminated

employment on

that

day

and

had

not

died,

that

is

attributable

to

the

member's

or former

member's

membership

in

the

plan

after

December

31,
    1986.

Alternative

23. (2)

A

pension

plan

may

provide

for

a

survivor,

as

an

alternative

to what

is

provided

by

subsection

(
1
),

an

immediate

pension

benefit equal

to

or

greater

than

what

is

provided

by

subsection

(
1
)
.

If

member

eligible

for

retirement

dies

23. (3)

A

member

or

former

member

of

a

pension

plan

who

is

entitled

to a deferred

pension

benefit

pursuant

to

subsection

17(1)

(or,

in

the
    case

of

a

member,

would

be

so

entitled

if

the

member

ceased
    membership

in

the

plan)

and

dies

before

commencement

of

payment
    of

that

pension

benefit

but

after

becoming

eligible

to

receive

an immediate

pension

benefit

in

accordance

with

subsection

16(2)

is
    deemed

(a)

to

have

retired

for

purposes

of

the

surv
i
vor

benefit;

and

(b)

to

have

been

entitled

to

the

joint

and

survivor

pension

benefit payable

pursuant

to

section

22,

without

regard

to

subsection

(5) thereof,

in

respect

of

that

deferred

pension

benefit.

Eligibility

of

survivor

23. (4)

The

survivor

of

the

member

or

former

member described

in subsection

(3)

is

entitled

to

the

pension

benefit

credit

to

which

the member

or

former

member

would

have

been

entitled

on

the

day

of
    death

if

the

member or

former

member

had

terminated

employment on

that

day

and

had

not

died,

if

the

credit

in

whole

or

in

part

results from

a

defined

contribution

plan

and

is

attributable

to

the

member's or

former

member's

membership

in

the

plan

after

December

31, 198
6
.

Surrender

of

pension

benefit

or

pension

benefit

credit

23. (5)

A

pension

plan

may

provide

that

a

survivor

may,

after

the

death

of
    a

member

or

former

member,

surrender,

in

writing,

the

pension benefit

or

pension

benefit

credit

to

which

the

survivor

is

entitled

under this

section

and

designate

a

beneficiary

who

is

a

dependant,

within the

meaning

of

subsection

8500(1)

of

the

Income

Tax

Regulations,

of the

survivor,

member or

former

member.

Effect

of

group

life

insurance

plan

23. (6)

Subject

to

subsection

(7),

a

defined

benefit

plan

may

provide

for the

reduction

of

the

benefit

payable

under

any

of

subsections

(1)

to
    (3)

by

an

amount

equal

to

that

part

of

the

group

life

insurance payment

that

can

be

considered

to

have

been

paid

by

employer
    premiums,

calculated

in

a

manner

satisfactory

to

the

Superintendent, if

(a)

in

the

circumstances

described

in

any

of

subsections

(1)

to

(3),

a
    survivor

is

entitled

to

a

payment

under

a

group

life

insurance

plan

on
    the

death

of

the

member

or

former

member

of

the

pension

plan;

(b)

the

group

life

insurance

plan

is

one

that

is

approved

by

the
    Superintendent

for

the

purposes

of

this

subsection;

and

(c)

the

group

life

insurance

premiums

are

paid

in

whole

or

in

part

by the

employer.

Limitation

23. (7)

In

respect

of

a

reduction

referred

to

in

subsection

(6),

(a)

the

actuarial

present

value

of

the

reduction

may

not

exceed

the amount

of

the

payment

to

which

the

survivor

is

entitled

under

the
    group

life

insurance

plan;

and

(b)

in

the

case

of

a

contributory

pension

plan,

the

reduction

may

not
    reduce

the

benefit

payable

to

the

survivor

to

an

amount

less

than

the
    aggregate

of

the

member's

required

contributions

together

with interest

in

accordance

with

section

19

Distribution

of

Pension

Benefits

and

Pension

Benefit

Credits

on Divorce,

Annulment

or

Separation

Definition

of

"provincial

property

law"

25
.
(1)

In

this

section,

"provincial

property

law"

means

the

law

of

a province

relating

to

the

distribution,

pursuant

to

court

order

or agreement between

them,

(a)

of

the

property

of

spouses

on

divorce,

annulment

or

separation;

or

(b)

of

the

property

of

former

common-law

partners

on

the

breakdown
    of

their

common-law

partnershi
p
.

Application

of

provincial

property

law

25. (2)

Subject

to

this

section,

pension

benefits,

pension

benefit

credits and

any

other

benefits

under

a

pension

plan

shall,

on

divorce, annulment,

separation

or

breakdown

of

common-law

partnership,

be subject

to

the

applicable

provincial

property

law.

Non-application

of

this

Act

25. (3)

A

pension

benefit,

pension

benefit

credit

or

other

benefit

under

a
    pension

plan

that

is

subject

to

provincial

property

law

pursuant

to

this
    section

is

not

subject

to

the

provisions

of

this

Act

relating

to

the
    valuation

or

distribution

of

pension

benefits,

pension

benefit

credits

or other

benefits

under

a

pension

plan,

as

the

case

may

be.

Power

to

assign

to

spouse,

etc.

25. (4)

Notwithstanding

anything

in

this

section

or

in

provincial

property law,

a

member

or

former

member

of

a

pension

plan

may

assign

all

or part

of

that

person's

pension

benefit,

pension

benefit

credit

or

other
    benefit

under

the

plan

to

that

person's

spouse,

former

spouse, common-law

partner

or

former

common-law

partner,

effective

as

of divorce,

annulment,

separation,

or

breakdown

of

the

common-law partnership,

as

the

case

may

be,

and

in

the

event

of

such

an
    assignment

the

assignee

shall,

in

respect

of

the

assigned

portion

of the

pension

benefit,

pension

benefit

credit

or

other

benefit,

be deemed

for

the

purpose

of

this

Act,

except

subsections

2
1
(2)

to

(6),

(a)

to

have

been

a

member

of

that

pension

plan,

and

(b)

to

have

ceased

to

be

a

member

of

that

pension

plan

as

of

the effective

date

of

the

assignment,

but

a

subsequent spouse

or

common-law

partner

of

the

assignee

is not

entitled

to

any

pension

benefit,

pension

benefit

credit

or

other
    benefit

under

the

pension

plan

in

respect

of

that

assigned

portion.

Duty

of

administrator

25. (5)

Where,

pursuant

to

this

section,

all

or

part

of

a

pension

benefit, pension

benefit

credit

or

other

benefit

under

a

pension

plan

of

a
    member

or

former

member

is

required

to

be

distributed

to

their spouse,

former

spouse

or

former

common-law

partner

under

a

court order

or

an

agreement

between

them,

the

administrator,

on

receipt

of

(a)

a

written

request

from

either

the

member

or

former

member

or their

spouse,

former

spouse

or

former

common-law

partner

that

all

or
    part

of

the

pension

benefit,

pension

benefit

credit

or

other

benefit,

as the

case

may

be,

be

distributed

in

accordance

with

the

court

order

or the

agreement,

and

(b)

a

copy

of

the

court

order

or

agreement,

shall

determine

and

henceforth

administer

the

pension

benefit, pension

benefit

credit

or

other

benefit,

as

the

case

may

be,

in
    prescribed  manner,

in

accordance

with

the

court

order

or

agreement.
    However,

in

the

case

of

a

court

order,

the

administrator

shall

not
    administer

the

pension

benefit,

pension

benefit

credit

or

other

benefit in

accordance

with

the

court

order

until

all

appeals

therefrom

have been

finally

determined

or

the

time

for

appealing

has

expire
d
.

Notice

25. (6)

On

receipt

of

a

request

referred

to

in

subsection

(5),

the administrator shall

notify

the

non-requesting

spouse,

former

spouse or

former

common-law

partner

of

the

request

and

shall

provide

that person

with

a

copy

of

the

court

order

or

agreement

submitted

in support

of

the

request,

but

this

requirement does

not

apply

in

respect of

a

request

or

an

agreement

received

by

the

administrator
    in

a

form or

manner

that

indicates

that

it

was

jointly

submitted.

Splitting

of

joint

and

survivor

pension

benefit

25. (7)

A

pension

plan

may

provide

that,

where,

pursuant

to

this

section, all

or

part

of

a

pension

benefit

of

a

member

or

former

member

is
    required

to

be

distributed

to

that

person's

spouse,

former

spouse

or former

common-law

partner

under

a

court

order

or

agreement,

a

joint and

survivor

pension

benefit

may

be

adjusted

so

that

it

becomes payable

as

two

separate

pensions,

one

to

the

member

or

former member

and

the

other

to

that

person's

spouse,

former

spouse

or former

common-law

partner,

if

the

aggregate

of

the

actuarial

present values

of

the

two

pensions

is

not

less

than

the

actuarial

present

value of

the

joint

and

survivor

pension

benefit.

Limitation

25. (8)

Notwithstanding

subsection

(2),

the

aggregate

of

(a)

the

actuarial

present

value

of

the

pension

benefit

or

other

benefit
    paid

to

the

member

or

former

member,

and

(b)

the

actuarial

present

value

of

the

pension

benefit

or

other

benefit paid

to

the

spouse,

former

spouse

or

former

common-law

partner

of the

member

or

former

member

p
ursuant to this section shall be not greater than
    the actuarial present value of the pension benefit or other benefit, as the
    case may be, that would have been payable to the member or former member had
    the divorce, annulment, separation or breakdown not occurred.

Portability of Pension Benefit
    Credits and Purchase of Life Annuities

If

member

not

yet
    eligible

to

retire

26
.

(1)

If

a

member,

before

becoming

eligible

to

receive

an immediate

pension

benefit

pursuant

to

subsection

16(2),

ceases

to be

a

member

of

a

pension

plan

or

die
s
,

the

member

or

the

survivor, as

the

case

may

be,

is

entitled

(a)

to

transfer

the

member's

pension

benefit

credit

or

the

survivor's pension

benefit

credit,

whichever

is

applicable,

to

another

pension pla
n
,

if

that

other

plan

permits,

(b)

to

transfer

the

membe
r
'
s

pension

benefit

credit

or

the

survivor's pension

benefit

credit,

whichever

is

applicable,

to

a

retirement savings

plan

of

the

prescribed

kind

for

the

member

or

survivor,

as

the
    case

may

b
e
,

or

(c)

to

use

the

member's

pension

benefit

credit

or

the

survivor's
    pension

benefit

credit,

whichever

is

applicable,

to

purchase

an immediate

or

deferred

life

annuity

of

the

prescribed

kind

for

the member

or

survivor,

as

the

case

may

be,

if

the

member

or

the

survivor

notifies

the

administrator

of

that

desire, in

prescribed

form

and

within

ninety

days

after

the

cessation

of membership

or

the

member's

death,

as

the

case

may

be

(or,

where the

Superintendent

allows

a

longer

period

under

paragraph

28(
1
)(d),
    within

sixty

days

after

the

administrator

has

given

the

written statement

pursuant

to

that

paragraph),

and

the

administrator

shall forthwith

take

the

necessary

action

to

give

effect

to

any

such no
t
i
ficatio
n
.

General

Void

agreements

36.

(1)

Where

any

provision

of

this

Act

or

the

regulations

requires

an amount

to

be

withheld,

deducted,

paid

or

credited,

any

agreement or arrangement

by

the

person

on

whom

the

requirement

is

imposed

not to

withhold,

deduct,

pay

or

credit

that

amount

is

void.

Idem

36. (2)

Any

agreement or

arrangement

to

assign,

charge,

anticipate

or give

as

security

(a)

any

benefit

provided

under

a

pension

plan,

or

(b)

any

money

withdrawn

from

a

pension

fund

pursuant

to

section

26 is

void.

Exception

36. (3)

Subsection

(2)

does

not

apply

to

prevent

the

assignment
    of

an interest

in

a

pension

benefit,

or

in

a

life-annuity

of

the

prescribed

kind resulting

from

a

transfer

or

purchase

pursuant

to

section

26,

where
    the

assignment

(a)

is

ordered

by

a

court

pursuant

to

provincial

property

law

(within the

meaning

of

subsection

25(
1
));

or

(b)

is

made

under

subsection

25(4)

pursuant

to

a

written

agreement

[1]
In 2011, CTV Inc. amalgamated with CTVglobemedia Inc. and later changed its
    name to Bell Media Inc.  In these reasons, I refer to CTV Inc. and
    CTVglobemedia Inc. collectively as CTV.

[2]
Provided that the spouse did not waive entitlement to a survivor pension prior
    to the members retirement.

[3]
CWB later became Morneau Sobeco and is currently known as Morneau Shepell.

[4]
Mr. Filotti had incorrectly inserted 2005 as the year of his marriage.  CTV
    later discovered that Mr. Filotti married Ms. Garanovscaia on April 18, 2004,
    and they had not lived together in a common law relationship before their
    marriage.


COURT OF APPEAL FOR ONTARIO

CITATION: Williams-Sonoma Inc. v. Oxford Properties Group
    Inc., 2013 ONCA 441

DATE: 20130626

DOCKET: C56194

Weiler, Gillese and Hoy JJ.A.

BETWEEN

Williams-Sonoma Inc., Williams-Sonoma Canada
    Inc., Pottery Barn and Pottery Barn
    Kids

Plaintiffs (Appellants)

and

Oxford Properties Group Inc., Paragon Protection Ltd. and
EllisDon Corporation

Defendants (
Respondent
)

and

Yorkdale Shopping Centre Holdings Inc. and Omers
    Realty Management Corporation

Third Parties (Respondents)

Raj K. Datt and Gerry Grossi, for the appellants

Marcia J. Oliver, for the respondent, EllisDon
    Corporation

Heard: May 9, 2013

On appeal from the judgment of Justice Darla A. Wilson of
    the Superior Court of Justice, dated October 1, 2012, with reasons reported at 2012 ONSC 5448.

Hoy J.A:

I.

OVERVIEW

[1]

Williams-Sonoma Inc., Williams-Sonoma Canada Inc., Pottery Barn and
    Pottery Barn Kids (the Tenants) appeal the October 1, 2012 judgment of the
    motion judge, dismissing their action against the respondent, Ellis Don
    Corporation.

[2]

The Tenants are tenants at Yorkdale Shopping Centre in Toronto. The
    landlord, Yorkdale Shopping Centre Holdings Inc., (the Landlord) contracted
    for the respondent  an independent contractor  to perform certain
    construction work at the mall. Early one morning, a vandal opened a fire hose
    located in the vacant, third floor area of the mall that the Landlord had
    permitted the respondent to use for its office and storage.  As a result, the
    Tenants premises suffered what they allege is some $7,000,000 of water damage.

[3]

The leases between the Tenants and the Landlord (each a Lease)
    required the Tenants to take out and maintain insurance covering water damage
    to the leased premises and to the Tenants property within those premises.
    Under subsection 8.3.1 of each Lease, the Tenant waives all claims against the
    Landlord and those for whom the [Landlord] is in law responsible with respect
    to occurrences required to be insured against by the Tenant.

[4]

The Tenants sued the respondent contractor, alleging that it breached common-law
    and statutory duties owed to the Tenants by failing to properly secure the area
    where the fire hose was located.  The respondent brought a motion for summary
    judgment, arguing that the Tenants had waived all claims against it pursuant to
    s. 8.3.1 of the Leases. The respondent argued that: the Landlord is in law
    responsible for the respondent within the meaning of that phrase in s. 8.3.1 of
    the Lease; s. 8.3.1 accordingly applies; the benefit of s. 8.3.1 extends to the
    non-party respondent; and the Tenants are therefore barred from suing the
    respondent.

[5]

The motion judge concluded that the respondent was an entity for which
    the Landlord was responsible in law, and that, although the respondent was not
    a party to the Lease, the benefit of s. 8.3.1 should be extended to it pursuant
    to
Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd.
,
    [1999] 3 S.C.R. 108. She accordingly granted summary judgment, dismissing the
    Tenants claims against the respondent.

[6]

On this appeal, the Tenants argue that the motion judge erred in
    concluding that the Landlord could be responsible in law for the respondent if
    not vicariously responsible for it, and that the respondent did not fall within
    any exception to the general immunity from vicarious liability for the
    negligence of an independent contractor.

[7]

The Tenants do not argue that this was a matter that should not have
    been dealt with by way of a motion for summary judgment.

[8]

For the reasons that follow, I conclude that the Landlord is responsible
    in law for the respondent, within the meaning of those words in the Leases, and
    that the benefit of s. 8.3.1 should be extended to the respondent. I would
    accordingly dismiss this appeal.

II.

THE RELEVANT PROVISIONS OF THE LEASEs

[9]

The Leases are the same in all material respects. The relevant
    provisions are contained in Part 8, entitled Insurance. That Part requires the
    Landlord and the Tenant to take out certain insurance coverage and to release the
    other to the extent of such coverage.

[10]

Section
    8.1 provides that the Landlord shall not be required to take out or maintain
    any insurance with respect to any loss, injury or damage required to be insured
    against by Tenant or with respect to Tenant Property.

[11]

Section
    8.2 then requires the Tenant to take out and maintain, among other insurance
    coverage, coverage with respect to water damage howsoever causedfully
    covering the Store (including all Leasehold Improvements), all Tenant Property
    and any other property owned by [the] Tenant or for which it is legally liable
    and which is located within the Project.

[12]

Pursuant
    to s. 8.3, the Tenant releases the Landlord and those for whom it is in law
    responsible from claims arising out of the water damage with respect to which
    s. 8.2 requires the Tenant to obtain coverage:

8.3.1. Subject to sections 8.3.2 and 8.3.3, each of the
    Landlord and Tenant hereby releases the other and waives all claims against the
    other and
those for whom the other is in law responsible
with respect
    to occurrences insured against or required to be insured against by the
    releasing party, whether any such claims arise as a result of the negligence or
    otherwise of the other or those for whom it is in law responsible. [Emphasis
    added.]

8.3.2. Such release and waiver shall be effective only to the
    extent of proceeds of insurance received by the releasing party and proceeds
    which would have been received if the releasing party obtained all insurance
    required to be obtained by it under this lease and for this purpose deductible
    amounts shall be deemed to be proceeds of insurance received.

8.3.3. Notwithstanding anything to the contrary in this section
    8.3, Landlord and Tenant shall each be liable to any third person (being any
    person other than Landlord or Tenant) to the extent of their respective fault
    or negligence and each shall be entitled to full indemnity and contribution
    from the other to the extent of the others fault or negligence.

[13]

Finally,
    pursuant to s. 8.4, to the extent not released under s. 8.3, the Landlord is
    required to indemnify the Tenant in respect of any losses occasioned by the
    act, default or negligence of the respondent, which was its contractor:

8.4 To the extent not released under section 8.3, each party
    shall indemnify and save harmless the other from all liabilities, damages,
    losses or expenses growing out of:

2.  any loss, cost or expense
    arising from occasioned by the act, default or negligence of the indemnifying
    party, its officers, agents, servants, employees,
contractors,
customers or licensees [Emphasis added.]

III.

EXCEPTIONS TO THE DOCTRINE OF PRIVITY OF CONTRACT

[14]

In
    addition to the provisions of the Leases, the law regarding privity of contract
    is relevant to the analysis that follows.

[15]

In
    two decisions
London Drugs Ltd. V. Kuhne & Nagel Ltd
., [1992] 3
    S.C.R. 299 and
Fraser River
the Supreme Court decided that, in
    certain circumstances, the doctrine of privity of contract should be relaxed to
    recognize the rights of a third party beneficiary to enforce contractual
    provisions made for its benefit to defend against an action commenced by one of
    the contracting parties.

[16]

In
London Drugs
, a storage company was party to a contract limiting its
    liability to $40 for any one package.  A package  a 7,500-pound transformer
    was damaged while being moved by its employees.  The owner of the transformer
    sued the company and its employees for negligence.  All were found liable. At
    first instance, the liability of the company was limited to $40 while the
    employees were found liable for the full amount of the damages. The traditional
    exceptions to the doctrine of privity did not apply. At para. 107, the Supreme
    Court held that an employee should be entitled to benefit from a limitation of
    liability clause found in a contract between his employer and a plaintiff if:

1.       The
    limitation of liability clause, either expressly or impliedly, extends its
    benefit to the employee seeking to rely on it; and

2.       The
    employee seeking the benefit of the limitation of liability clause was acting
    in the course of his employment and performing the very services provided for
    in the contract between the employer and the plaintiff when the loss occurred.

[17]

Fraser
    River
followed some seven years later. That case dealt with a subrogation
    clause in an insurance contract in which the insurer waived its right of
    subrogation against persons to whom the insured owner chartered its vessels.
    The owner chartered a barge to a third party. The barge sunk through the
    negligence of the charterer. The insurer paid the loss; the owner waived the
    subrogation clause, and sued the charterer for the benefit of the insurer.

[18]

The
    Supreme Court clarified that the principled approach in
London Drugs
was not limited to employee-employer relationships and applies where the
    traditional exceptions to the doctrine of privity do not. At para. 32, it
    rephrased the test in
London Drugs
, in general terms:

1.       Did the
    parties to the contract intend to extend the benefit in question to the third
    party seeking to rely on the contractual provision; and

2.       Are the
    activities performed by the third party seeking to rely on the contractual
    provision the very activities contemplated as coming within the scope of the
    contract in general, or the provision in particular, again as determined by
    reference to the intentions of the parties.

[19]

The
    Supreme Court found that the first prong of the test was clearly met: the
    clause expressly referenced charters. The second prong was also met: the
    relevant activities arose in the context of the relationship of Can-Dive to
    Fraser River as a charterer, the very activity anticipated in the policy
    pursuant to the waiver of subrogation clause (at para. 39).

IV.

MOTION JUDGES REASONS

[20]

The
    motion judge considered the two factors in
Fraser River
.

[21]

As
    to the first, she concluded that the parties must have intended the protection
    arising from s. 8.3 of the Lease to extend to others involved in the renovation
    work ongoing in the mall.   At para. 28, she reasoned that one of the
    intentions of the release was the allocation of risk and certainty that cost
    will not be affected by one party asserting subrogation rights. In order to
    give effect to this intention, in my opinion, the benefit must be extended to a
    contractor such as [the respondent]. The first part of the test was therefore
    satisfied.

[22]

With
    respect to the second part of the test, she concluded that the consideration
    of vicarious liability is irrelevant. The motion judge found that the Landlord
    was responsible for the presence of the respondent at the mall:  the Landlord
    hired the respondent to perform work to satisfy the Landlords obligations to
    its tenants.  Moreover, the respondent utilized the third floor space to house
    its site office and to store equipment and other items necessary for the work it
    was conducting.

[23]

The
    motion judge concluded, In my view, the waiver of subrogation extends to the
    benefit of [the respondent], being an entity for whom the landlord is
    responsible in law. To permit [the Tenants] to advance a subrogated claim
    against [the respondent] when it cannot advance a claim against the landlord
    would lead to a result that the subrogation clause is intended to prevent.

V.

ANALYSIS

(1)

Summary

[24]

I
    come to the same conclusion as the motion judge, although for slightly different
    reasons.

[25]

The
    Respondent was not a party to the Leases; consequently, it can only claim the
    benefit of s. 8.3.1 if it falls within the test set out in
Fraser River
.
    In this case, as in
Fraser
, the parties specifically indicated the
    persons to whom they intended the benefit of the waiver of subrogation extend.
    Here, the Lease extends the benefit of the waiver of subrogation to those for
    whom the Landlord is in law responsible. The first task for the court,
    therefore, is to determine whether the respondent was a person for whom the Landlord
    was in law responsible, within the meaning of those words as used in the
    Lease. Applying the ordinary principles of contract interpretation, I conclude
    that the Landlord was in law responsible for the respondent, within the meaning
    of those words as used in the Lease.

[26]

I
    also conclude that the two-part test in
Fraser
is met in this case,
    and that the respondent was accordingly entitled to invoke s. 8.3.1 of the
    Lease as a defence to the Tenants claims against it.

(2)

Interpretation of in law responsible

[27]

The
    Tenants argue that s. 8.3 is in essence a waiver, or exclusion of liability,
    and, as such, should be strictly construed against the  party seeking to invoke
    it:
Hunter Engineering Co. v. Syncrude Canada Ltd.
, [1989] 1 S.C.R.
    426, para. 132.  In
Hunter Engineering
, sellers sought to rely on
    provisions in their contracts to preclude the application of the warranty implied
    by the
Sale of Goods Act
that the goods supplied were reasonably fit
    for the purpose.  In this case, unlike
Hunter Engineering
, the
    exclusion clause is a mutual one. In my view, the principle of strict
    construction relied on by the Tenants is therefore not applicable. The ordinary
    principles of contract interpretation apply.
[1]

[28]

I
    start by considering the ordinary meaning of the words in law responsible.

[29]

The
Dictionary of Canadian Law
defines responsible as meaning liable,
    accountable legally, answerable.
[2]
The
Canadian Oxford Dictionary
defines responsible as liable to be
    called to account (to a person or for a thing), and defines liable as
    legally bound.
[3]

[30]

Vicarious
    liability is a theory that holds one person responsible for the misconduct of
    another because of the relationship between them:
671122 Ontario Ltd. v.
    Sagaz Industries Canada Inc
., 2001 SCC 59, [2001] 2 S.C.R. 983, at para.
    25.

[31]

In
    my view, the ordinary meaning of the phrase in law responsible is liable,
    accountable in law, or legally responsible; its ordinary meaning is not
    necessarily limited to legal responsibility arising through vicarious liability,
    and the manner in which the phrase is used in the Lease does not restrict its
    ordinary meaning.

[32]

The
    respondent argues that a person may become legally responsible for another
    through the operation of a contract of indemnity. I agree.  Indeed, in this
    case, under s. 8.4, to the extent not released under s. 8.3,  the Landlord
    specifically agrees to indemnify the Tenant in respect of losses occasioned by
    the act, default or negligence of the Landlords officers, agents, servants,
    employees, contractors, customers or licensees  a class of persons including
    the respondent. Under this clause, the Landlord agrees to indemnify the Tenant
    for damages caused by its contractors, such as the respondent. In other words,
    the Landlord has specifically made itself legally responsible for the respondent.
    In my view, the effect of s. 8.4 is that the Landlord is generally in law
    responsible to the Tenant for the respondent within the meaning of s. 8.3.1.

[33]

My
    conclusion is not altered by the phrase to the extent not released under s.
    8.3 that prefaces s. 8.4.  Part 8 of the Lease is entitled Insurance; it allocates
    risk between the parties based on which party is required to obtain insurance
    coverage. The indemnity in s. 8.4 is situated in the part of the Lease dealing
    with insurance.  The effect of the phrase to the extent not released under s.
    8.3 is that the Landlord is not required to indemnify the Tenant in respect of
    the act, default or negligence of a person listed in s. 8.4.1, if the claim is
    with respect to an occurrence insured against or required to be insured against
    by the Tenant.  It does not mean that the Landlord is not in law responsible to
    the Tenant for such persons within the meaning of s. 8.3.1

[34]

In
    my view, any other interpretation of the interplay of ss. 8.3.1 and 8.4 is
    inconsistent with the overall scheme of risk allocation envisaged by Part 8 of
    the Lease and would not make commercial sense. For that reason, I reject the
    Tenants argument that if it were the intent of the parties that the release in
    s. 8.3.1 were to extend to the parties officers, agents, servants, employees,
    contractors, customers or licensees then they would have used that wording,
    and not the words those for whom the other is in law responsible.

[35]

Having
    concluded that the Landlord is, under the Lease, in law responsible for the
    respondent, it is unnecessary to address the arguments of the Tenants regarding
    vicarious liability.

(3)

The application of the test in
Fraser River

[36]

I
    turn next to the issue of whether the two-part test in
Fraser
has been
    met.

[37]

It
    follows from my conclusion that the respondent is a person for whom the
    Landlord is in law responsible that the parties intended the benefit of s.
    8.3.1. to extend to the respondent, and that the first prong of the test is
    met.

[38]

I
    also conclude that the activities performed by the respondent were activities
    contemplated as coming within the scope of s. 8.3.1. The respondent was
    providing services to the Landlord as a contractor  an activity specifically
    contemplated by the indemnity provision contained in s. 8.4 of the Lease. The
    second prong of the test is also met.

[39]

The
    respondent is accordingly entitled to enforce s. 8.3.1.of the Leases to defend
    against the Tenants claim against it.

VI.

DISPOSITION AND COSTS

[40]

I
    would accordingly dismiss this appeal, and award costs in the agreed upon amount
    of $ 30,000, inclusive of disbursements and applicable taxes, to the
    respondent.

Released: June 26, 2013                              Alexandra
    Hoy J.A.

EEG                                                                 I
    agree K.M. Weiler J.A.

I
    agree E.E. Gillese J.A.

[1]
A commercial contract is
    to be interpreted,

(a)  as a
    whole, in a manner that gives meaning to all of its terms and avoids an
    interpretation that would render one or more of its terms ineffective;

(b)  by
    determining the intention of the parties in accordance with the language they
    have used in the written document and based upon the cardinal presumption
    that they have intended what they have said;

(c)  with
    regard to objective evidence of the factual matrix underlying the negotiation
    of the contract, but without reference to the subjective intention of the
    parties; and

(d)  to
    the extent that there is ambiguity in the contract, in a fashion that accords
    with sound commercial principles and good business sense, and that avoid a
    commercial absurdity.

Ventas Inc. v. Sunrise Senior Living Real Estate
    Investment Trust
, 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24.

[2]
D.A. Dukelow ed,
The Dictionary of Canadian Law
, 4th ed. (Toronto:
    Carswell, 2011), at p. 1124.

[3]
K. Barber ed,
Canadian Oxford Dictionary
, 2nd ed. (Don Mills, ON: Oxford
    University Press, 2004), at pp. 1317 and 883.


WARNING

THIS IS AN
    APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT
    TO S. 45 OF THE ACT WHICH PROVIDES:

45.
    (7)
The court may make an order,

(a)     excluding
    a particular media representative from all or part of a hearing;

(b)     excluding
    all media representatives from all or a part of a hearing; or

(c)     prohibiting
    the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the
    media representative or representatives or the publication of the report, as
    the case may be, would cause emotional harm to a child who is a witness at or a
    participant in the hearing or is the subject of the proceeding.

45.
    (8)
No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45.
    (9)
The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: A.A. v. Children's Aid Society of
    Toronto, 2013 ONCA 462

DATE: 20130705

DOCKET: C57002

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

A.

A.

Appellant

and

The Childrens Aid Society of Toronto

Respondent

Jeffery Wilson, for the appellant

Samantha Levenson, for the respondent

Heard:  July 2, 2013

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated May 2, 2013.

ENDORSEMENT

[1]

The appellant A.A. appeals the Order of Justice Craig Perkins of the
    Superior Court of Justice dated May 2, 2013, dismissing an appeal from the order
    of Spence J. of the Ontario Court of Justice dated October 9, 2012, making the
    child, H.A., a ward of the Crown so that he can be placed for adoption.

[2]

The appellants principal argument is that the appeal judge erred in
    principle concerning the proper interpretation and application of s. 57(4) of
    the
Child and Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
),
    which provides in relevant part:

57(4)  Where the court decides that it is necessary to remove
    the child from the care of the person who had charge of him  immediately
    before intervention under this Part,
the court shall
, before making an
    order for  Crown wardship ,
consider whether it is possible to place the
    child with
a relative, neighbour or
other member of the childs
    community
or extended family with the consent of the relative or other
    person.  [Emphasis added.]

[3]

The appellant contends that the trial judge did not properly consider a
    substantial amount of fresh evidence that established that there were many
    people in the appellants Somali community who were prepared and able to
    provide proper care for the appellants five-year-old son with special needs.

[4]

We do not accept this submission. The appeal judge considered the fresh
    evidence in some detail. He concluded that, although the fresh evidence
    consists of numerous affidavits of people purportedly willing to provide
    support for the mother in caring for the child or even to provide direct,
    primary care, none of the deponents had actually presented a plan of care for
    the child.  In our view, this was a fair summary of the fresh evidence before
    the appeal judge.  It follows that the appeal judge did not err by concluding
    as he did:

This is not a sufficient basis for me to conclude the result at
    trial would or might have been different, either in respect of the finding or
    in respect of the disposition.  Still less is it a basis for me to make an
    order for a different disposition today.

[5]

We note that both parties filed new fresh evidence for this appeal
    hearing.  This fresh evidence establishes that a member of the appellants
    community  indeed, the appellants second cousin, K.M.  has come forward with
    a plan to provide care to the child. For several months, the respondent has
    worked carefully and constructively with K.M. with a view to placing the child
    in her care, preferably on an adoption basis, but not excluding at this
    juncture the possibility of an order under s. 65 of the
CFSA
.

[6]

In our view, this is a very positive development for all concerned,
    especially the child.  We urge the appellant, respondent and K.M. to work
    together towards a resolution along these lines.

[7]

The appeal is dismissed.  The respondent properly does not seek costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Baines v. Hehar, 2013 ONCA 469

DATE: 20130709

DOCKET: M42150 (M42069)

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Eleanor Baines

Applicant/Plaintiff

and

Navdeep S. Hehar and Manmohan S. Hehar

Respondents/Defendant

Eleanor Baines, in person

Fergal Murphy and David L. Silverstone, for the
    respondents

Heard: July 4, 2013

ENDORSEMENT

[1]

The applicant moves for an order setting aside, varying or amending the
    order of Hoy A.C.J.O. dated January 23, 2013, dismissing the applicants motion
    for an extension of time to seek leave to appeal from the decision of the
    Divisional Court, dated November 27, 2012.  That decision dismissed the applicants
    appeal from a jury verdict in a personal injury action arising from a motor
    vehicle accident.

[2]

In her Amended Notice of Motion, the applicant also requests an order:
    (1) compelling the respondents to produce an article that she says was used by
    one of the experts who testified at trial when preparing his expert report and
    permitting her to use the article as fresh evidence on appeal if her leave to
    appeal motion is granted; and (2) setting aside the Divisional Courts costs
    award in favour of the respondents on the basis that the respondents factum at
    the appeal hearing before the Divisional Court was served late, contrary to the
Rules of Civil Procedure
.

[3]

Notwithstanding the appellants thoughtful and articulate submissions,
    we see no basis for interfering with Hoy A.C.J.O.s discretionary order
    declining to grant an extension of time.  The only issue before this court is
    whether Hoy A.C.J.O. erred in her discretionary ruling.  In our view, she did
    not.

[4]

In her reasons, Hoy A.C.J.O. indicated that, on the basis of all the
    materials filed on the extension motion, the issues sought to be raised on
    appeal by the applicant were matters of significance to the parties only.  The
    applicant challenges this conclusion, arguing that the proposed issues on
    appeal are relevant generally to the conduct of civil litigation by
    self-represented litigants, the determination of which will assist the
    administration of justice, including by providing clarification of the
    obligations of counsel and the court to self-represented litigants.

[5]

We agree with Hoy A.C.J.O.s assessment of the import of the issues
    sought to be raised on appeal.  The applicants real objective is to reverse
    the jurys damages awards, because the applicant regards them as too low, and
    the trial judges associated ruling on the threshold for non-pecuniary
    damages.  These are matters particular to the interests of the litigants in
    this case.

[6]

Many of the grounds sought to be raised by the applicant relate to the
    conduct of the trial, including the trial judges evidentiary rulings.  These
    grounds were or could have been pursued by the applicant before the Divisional
    Court.  To the extent that the grounds were dealt with by the Divisional Court,
    we see no error in that courts analysis or disposition of them.  To the extent
    that some identified grounds were not dealt with by the Divisional Court, they
    appear to be issues raised before and dealt with by the trial judge in the
    proper exercise of his discretion.  There is no basis on which to allow a
    second appeal to this court in respect of those issues.  Further, we see no
    merit to the grounds raised by the applicant in respect of the appeal hearing
    before the Divisional Court.

[7]

In the result, the applicant has failed to identify any error by Hoy
    A.C.J.O. warranting intervention by this Panel.

[8]

With respect to the applicants request for an order compelling
    production of a document allegedly utilized by an expert who testified at trial
    (Dr. A. Upton), this is a request that properly should have been made at trial
    or pursued with the expert on cross-examination.  It is irrelevant to the
    challenge to Hoy A.C.J.O.s order, now before us.  We note that this production
    request does not appear to have been made before the Divisional Court or Hoy
    A.C.J.O.

[9]

Finally, we see no reversible error in the Divisional Courts costs
    award, even if an extension of time to seek leave to appeal from that award
    were granted.  We note that the respondents have undertaken before this court
    not to enforce this outstanding costs award.  In any event, the applicant has
    identified no error in principle concerning the challenged costs award and we
    see no basis to conclude that the award is clearly wrong.  Accordingly, no
    purpose would be served by granting an extension of time in which to seek leave
    to appeal from the Divisional Courts costs award.

[10]

For
    the reasons given, this motion is dismissed.  The respondents, quite properly
    in our view, do not seek their costs of this motion.  Accordingly, we make no
    order for costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.