A Comma-dy Of Errors: Ontario Superior Court Dismisses Pensioners' Class Action

Justice Mason once remarked that "the comma has earned its notoriety as a troublemaker."1 True to that observation, in Austin v. Bell Canada,2 a class proceeding alleging damages of over $130 million was brought, certified, and dismissed on summary judgment, all in connection with a single comma found in an annual indexing provision of a pension plan.


The Plaintiff was a pensioner who had worked for one of the Bell corporate defendants. His pension was funded by his former employer, and administered by Bell Canada. He alleged that Bell Canada erroneously calculated the cost of living increase for all pensioners in 2017, and that this error, in turn, negatively impacted the calculation of pension payments for all years thereafter. He brought a proposed class action on behalf of all similarly situated Bell retirees3 alleging breach of contract, breach of trust, and breach of fiduciary duty.

The Plaintiff brought two motions to be heard at the same time: one to certify the action as a class action under the Class Proceedings Act,4 and the other for summary judgment. While Justice Morgan certified the class action against Bell Canada, His Honour dismissed the case against Bell Canada.

The Applicable Provisions

The relevant pension plan (the "Plan") provided the following methodology in s. 1.29 for indexing pension payments for inflation:

'Pension Index' means the annual percentage increase of the Consumer Price Index, as determined by Statistics Canada, during the period of November 1 to October 31 immediately preceding the date of the pension increase.

Section 8.7 of the Plan then provided a series of formulas (including rounding directives) to determine how the annual indexation was to be calculated once the Pension Index was arrived at under s. 1.29.

The troublemaking comma was the comma between "Consumer Price Index" and "as determined by Statistics Canada" in s. 1.29, quoted above. What was to be determined by Statistics Canada? The Consumer Price Index ("CPI") alone, or both the CPI and the annual percentage increase of the CPI?


Before wading into the merits of the contractual interpretation issue identified above, Justice Morgan considered whether the action should be certified, and concluded that "this is an easy claim to certify".5

His Honour found that all of the causes of action raised were feasible, properly pleaded, and were well known bases for challenging a pension plan. There was clearly an identifiable...

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