Pensions Newsletter – January 2019

Welcome to the 23rd issue of the Blakes Pensions Newsletter. This newsletter provides a summary of recent jurisprudential developments that affect pensions and benefits and is not intended to be legal advice.

For additional information or to discuss how any aspect of these developments may affect you, please contact a member of the Blakes Pensions, Benefits & Executive Compensation group.

IN THIS ISSUE

FAMILY LAW

Gaudet v. Gaudet, 2018 NSSC 231 CALCULATION OF YEARS OF SERVICE

Gervais c. Association internationale des débardeurs (ILA Chekers - Local 1657), 2018 QCCS 4138 JURISDICTION OF PENSION PLAN

Northern Inter-Tribal Health Authority Inc. v. Canada (Attorney General), 2018 FC 1180 DISABILITY PENSION ENTITLEMENT

Greene-Kelly v. Canada (Attorney General), 2018 FC 1188 EQUALITY RIGHTS

Fraser v. Canada (Attorney General), 2018 FCA 223 SHARE VALUATION

Mikelsteins v. Morrison, 2018 ONSC 6952 FAMILY LAW

Gaudet v. Gaudet, 2018 NSSC 231

Following the breakdown of their marriage, Mr. and Ms Gaudet signed a separation agreement in May 2016. The separation agreement included a provision under which each party would retain sole undivided ownership of any pension accrued during the marriage. During the divorce trial, this provision (and others) became one of contention. Ms Gaudet had a significantly larger income and accrued pension than Mr. Gaudet, and argued that the agreement should be enforced in accordance with its terms Mr. Gaudet, however, took the contrary position on the basis that the division of pensions was not discussed during the drafting of the separation agreement and that he did not receive a copy of the agreement at any point during the drafting or after the agreement was signed. Furthermore, Mr. Gaudet did not receive independent legal advice.

The court held that section 29 of the Matrimonial Property Act permits the court to intervene where it is satisfied that "any term of the contract or agreement" is unconscionable or unduly harsh on one party. The court stated that the circumstances under which the agreement was drafted and signed were far from ideal, as both parties were under extreme emotional distress, and there was confusion as to whether counsel was acting for both parties and whether the agreement was permanent or temporary. Furthermore, given Mr. Gaudet's earning capacity was significantly lower than Ms Gaudet's, the potential stream of retirement income Ms Gaudet's pension would offer him was considered to be significant by the court. The court ultimately held that while the separation agreement should not be set aside as a whole, it should be amended to provide for an equal division of pension benefits accrued during marriage at source.

Nova Scotia Supreme Court Decision

CALCULATION OF YEARS OF SERVICE

Gervais c. Association internationale des débardeurs (ILA Chekers - Local 1657), 2018 QCCS 4138

The plaintiffs were hired in 1969 as spare checkers for the Port of Montreal. Although a job security program was established at the port in 1972, the plaintiffs did not enter it until 1985. Between 1972 and 1985, the plaintiffs were on the "first priority list" (the employees called to work after those on the job security program).

In order for the year to be credited for the purposes of years of service, the pension plan at issue required 550 hours of...