CORRECTED DECISION: The text of the original decision has been corrected with text of the corrigendum  
(released March 24, 2022) appended.  
IN THE MATTER OF  
THE PENSION BENEFITS ACT, 1992, S.S. 1992, C. P-6.001, AS AMENDED  
AND  
A DECISION OF THE SUPERINTENDENT OF PENSIONS PURSUANT TO SUBSECTION 22(4) OF  
THE PENSION BENEFITS ACT, 1992 (THE “PBA”) RECONSIDERING THE SUPERINTENDENT’S DECISION  
DATED FEBRUARY 24, 2021, RELATING TO THE REGISTRATION OF  
AMENDMENT P-23 TO THE CCRL PETROLEUM EMPLOYEES’ PENSION PLAN (THE “PLAN”),  
PLAN REGISTRATION NUMBER 0358986  
Superintendent of Pensions:  
Date of decision:  
Roger Sobotkiewicz  
March 11, 2022  
Reasons and Decision of the Superintendent:  
1. On October 19, 2020, Consumers’ Co-operative Refineries Limited (“CCRL”) filed an  
amendment which CCRL labeled No. P-23 (“Amendment P-23”) to the Plan in accordance  
with section 17(1) of the PBA.  
2. On December 30, 2020, a staff member in the FCAA’s Pensions Division sent emails to  
CCRL and the stakeholders who provided submissions to me regarding the registration of  
Amendment P-23 (the “Submission Providers”) enclosing a letter from me. In that letter  
dated December 30, 2020, I notified CCRL and the stakeholders that I had decided to  
register Amendment P-23 (the “Notice of Decision”). I also stated in the Notice of Decision  
that written reasons for my decision would follow ‘shortly’.  
3. On February 24, 2021, I issued the written reasons for my decision (the “Written  
Reasons”) and delivered them to CCRL representatives and the Submission Providers. In  
the Written Reasons I reiterated that I had registered Amendment P-23 as indicated in the  
Notice of Decision. I then went on to add that one aspect of Amendment P-23, the  
lowering of the indexation cap from 5% to 2% for service prior to 2021 as set out in clause  
3(h), could not be registered as I was not satisfied it complied with the PBA and that  
aspect had been severed from Amendment P-23 as registered.  
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4. On April 16, 2021, legal counsel for CCRL delivered to my office a notice of objection  
(“Notice of Objection”) pursuant to subsection 22(3) of the PBA in respect of my refusal to  
register clause 3(h) of Amendment P-23 in the form submitted.  
5. I have reconsidered my refusal to register clause 3(h) of Amendment P-23 in the form  
submitted by CCRL as required by subsection 22(4) of the PBA. For the reasons that follow,  
I have decided to confirm my decision to refuse to register the aspect of clause 3(h) of  
Amendment P-23 that provides for the lowering of the indexation cap with respect to past  
service of Opt-In Members, as that group is defined in Amendment P-23.  
Background:  
6. Much of the factual matrix relevant to this reconsideration decision, including the details  
of Amendment P-23 and the process followed in arriving at my decision in respect of the  
registration of Amendment P-23, is set out in great detail in the Written Reasons and I will  
not repeat it all here. However, there are certain salient points that warrant highlighting  
here due to their particular relevance to the issues in play for this reconsideration  
decision.  
7. Amendment P-23 was intended, among other things, to put into effect the collective  
agreement made June 22, 2020, between CCRL and Unifor Local 594 (the “Union”) which  
appears to be principally aimed at reducing the cost of the Plan to CCRL. Amendment P-23  
also puts into effect an agreement between CCRL and the Union to resolve a grievance  
made by the Union regarding the administration of a provision of the Plan. The  
amendments that comprised Amendment P-23 can be summarized at a very high level as:  
I. To resolve the Union grievance, effective January 1, 2017, the option to elect to  
receive an annuity in lieu of the retirement benefit provided under the Plan was  
removed, and members who commenced the payment of a retirement benefit  
under the Plan between February 1, 2007, and December 31, 2016, inclusive, were  
provided the right to a one-time option to elect to receive in lieu of the remainder of  
that retirement benefit a life annuity from an insurance company;  
II. Going forward from the date of the collective agreement members would be  
required to make contributions towards the funding of the Plan;  
III. Active members in the Plan as of December 31, 2020, would be provided the choice  
to opt-out of the Plan effective December 31, 2020 (“Opt-Out Members”) or to  
remain in the Plan (“Opt-In Members”). After December 31, 2020, the Plan would be  
partially terminated in respect of the Opt-Out Members;  
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IV. The indexation benefits are changed both for past and future service, including  
complete elimination of indexation for service of Opt-In Members after December  
31, 2020.  
8. It is this last amendment that changed the indexation benefit for past service of Opt-In  
Members, and my decision that I was not satisfied it complied with subsection 19(3) of the  
PBA, that is the catalyst for CCRL’s reconsideration request. Specifically, the offending  
portion of clause 3(h) of Amendment P-23 provided that the indexation cap in respect of  
service of Opt-In Members prior to 2021 was lowered from 5% to 2%.  
9. On December 30, 2020, I caused to be issued to CCRL and the Submission Providers the  
Notice of Decision. The email sent by FCAA Pensions Division staff to CCRL and the  
Submission Providers to which the Notice of Decision was attached contained the  
following message and no other wording:  
Please see the attached decision of the Superintendent of Pensions.  
10. The attachment to the email that was the Notice of Decision displayed the file name “CCRL  
Amendment P-23 – Superintendent’s Decision December 30 2020.pdf”. The Notice of  
Decision was signed by me. As the precise wording of the Notice of Decision is relevant, I  
will set out the main body of the correspondence, verbatim, below:  
Re: CCRL Petroleum Employees' Pension Plan (the Plan); Registration No. 0358986  
Amendment No. P23 (the Amendment)  
This letter is to advise you that I have decided to register the Amendment to the Plan  
that was filed for registration under The Pension Benefits Act, 1992 on October 19,  
2020. The written reasons for my decision will follow shortly.  
11. On February 24, 2021, eight weeks to the day following the issuance of the Notice of  
Decision, I issued and delivered to CCRL and the Submission Providers the Written  
Reasons. In the Written Reasons I reiterated that I had decided to register Amendment P-  
23. However, beginning at paragraph 3, I went on to state:  
3. …… After reviewing the PBA and the Plan, and considering the submissions of the  
stakeholders concerning the registration of Amendment P-23, I notified CCRL and other  
stakeholders on December 30, 2020 that I had decided to register Amendment P-23. I  
indicated that written reasons for my decision would follow.  
4. As indicated in the notice on December 30, 2020 regarding my registration decision, I have  
registered Amendment P-23. However, one aspect of the amendments, the lowering of the  
indexation cap from 5% to 2% for service prior to 2021 provided for in clause 3(h), cannot be  
registered as I am not satisfied it is in compliance with the PBA. Accordingly, that aspect has  
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been severed from Amendment P-23 as registered. These are the reasons for my December  
30, 2020 decision.  
12. Later, beginning at paragraph 123 of the Written Reasons, I conclude my reasons for  
finding that I could not register clause 3(h) of Amendment P-23 as submitted:  
123. After considering all of the evidence provided, including the actuarial evidence, and  
the submissions received, I am inclined to view the reduction in the indexation cap with  
respect to past service to be a reduction in the accrued indexation benefit and a  
contravention of subsection 19(3) of the PBA.  
124. Subsection 17(3) of the PBA provides that I may issue to an administrator a notice of  
registration with respect to an amendment where I am satisfied that the amendment  
complies with the PBA. It follows that I am unable to register an amendment if I am not  
satisfied the amendment complies with the PBA. Accordingly, pursuant to subsection  
17(3) of the PBA, I am unable to register clause 3(h) of Amendment P-23 to the extent  
that it purports to reduce the indexation cap from 5% to 2% with respect to service prior  
to the effective date of the amendment.  
[…]  
130. Based on the finding above, I also conclude that clause 3(h) of Amendment P-23 has the  
effect of reducing a then existing entitlement in contravention of subsection 14.02(1) of  
the Plan. A failure by the administrator to administer the Plan in accordance with its  
terms is a contravention of subsection 11(1) of the PBA, and accordingly, this is an  
additional ground upon which I am not able to issue a notice of registration with respect  
to this aspect of clause 3(h).  
[underline in original]  
13. I concluded the Written Reasons with the following:  
149. Subsection 17(3) of the PBA authorizes me to issue a notice of registration with respect to  
amendments that I am satisfied comply with the PBA. As I indicated above when  
discussing clause 3(h) of Amendment P-23, I am not satisfied that the reduction of the  
indexation cap with respect to past service is in compliance with subsection 19(3) of the  
PBA. As a result, I have no authority to register that aspect of clause 3(h). The prohibition  
in subsection 19(3) of the PBA is an absolute prohibition binding plan administrators  
directly, it is not a discretion provided to me in making a registration decision. I have no  
ability to cure a failure to comply with subsection 19(3) by registering an amendment that  
contravenes it.  
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150. On December 30, 2020, I informed CCRL and all submission providers that I had decided  
to register Amendment P-23. I have so registered the amendments that comprise  
Amendment P-23, including clause 3(h), provided however, that the aspect of that clause  
relating to past service is severed from the clause as I am without authority to register it.  
Accordingly, CCRL must amend the wording of clause 6.06(2), as amended by clause 3(h)  
of Amendment P-23, to ensure the reduction of the indexation cap does not apply to past  
service of the members to which that subsection 6.06(2) applies.  
14. On April 16, 2021, legal counsel for CCRL delivered to my office the Notice of Objection.  
Beginning in paragraph 7 of the Notice of Objection, CCRL describes the steps it took in  
reliance on the wording of the Notice of Decision that led CCRL to believe Amendment P-  
23 was registered in its entirety. These steps included notifying the insurer of CCRL’s  
intention to exercise the right to convert an existing buy-in annuity contract to a buy-out  
annuity contract in respect of retirees who elected to receive a buy-out annuity; sending  
letters and election forms to retirees entitled to elect the annuity option; holding an  
online question and answer session for those retirees; formally approving and signing the  
written notice of partial conversion; commissioning its actuary to complete the partial  
termination report; preparing individualized member option packages; and initiating  
changes to the asset mix of the plan fund in order to make the commuted value payments  
and annuity purchases associated with the partial termination.  
15. CCRL objects to my decision to sever a portion of clause 3(h) from Amendment P-23  
instead of registering Amendment P-23 in its entirety. The ground for CCRL’s objection is  
described in the Notice of Objection as:  
Grounds for objection  
12. The Superintendent was functus officio after delivering his Decision. There is no  
legislative authority for the Superintendent to reconsider a decision to register a plan  
amendment. The Superintendent did not have the authority to alter his Decision under the  
guise of issuing reasons for his Decision. The Superintendent’s Decision to register  
Amendment P-23 was final and effective as of the date it was issued. The severance of a  
portion of clause 3(h) from Amendment P-23 is inconsistent with the Superintendent’s  
Decision. As such, the severance is void and of no force or effect.  
16. As I understand it, CCRL objects only to the portion of the Written Reasons wherein I  
refuse to register the aspect of clause 3(h) of Amendment P-23. I also understand that  
CCRL objects solely on the premise that I was functus officio when I issued the Written  
Reasons and had no authority to vary from my decision as stated in the Notice of Decision  
that, in CCRL’s view, granted an absolute and unconditional registration of Amendment P-  
23.  
Page 5 of 63  
17. On May 25, 2021, my office asked CCRL if it wished to make oral representations in  
respect of its Notice of Objection. Pursuant to subsection 22(4) of the PBA, the Plan  
administrator (in this case CCRL) had the right to an opportunity to make representations  
in addition to the written submissions in the Notice of Objection. By letter dated May 27,  
2021, CCRL declined the opportunity to provide any further representations.  
18. On June 4th, 2021, my office shared the Notice of Objection with the Submission Providers  
and offered them the opportunity to provide written representations to me regarding the  
Notice of Objection and the reconsideration of my registration decision in respect of  
Amendment P-23. I received a submission on July 7, 2021, from one of the Submission  
Providers, LH. CCRL was copied on that submission of LH (“the LH Submission”) and  
provided a reply to me on July 29, 2021 (the “CCRL Reply”). Prior to receiving the CCRL  
Reply, at the request of CCRL representatives, my office shared the LH Submission with the  
Union and offered the Union an opportunity to respond to the LH Submission. The Union  
provided a response on August 4, 2021.  
The Submissions:  
Notice of Objection  
19. In the Notice of Objection, CCRL cites the Supreme Court of Canada decision in Chandler v.  
Alberta Assn. of Architects, [1989] 2 S.C.R. 848 (“Chandler”) for the authority that the  
doctrine of functus officio applies to final decisions of statutory decision-makers. CCRL  
points to the Notice of Decision and subsection 17(3) of the PBA as evidence that a final  
registration decision had been made by me on December 30, 2020. CCRL notes that a final  
decision is a prerequisite for functus officio to be engaged and suggests that the Notice of  
Decision was in fact the notice of registration contemplated in subsection 17(3). According  
to CCRL, based on a plain reading of the wording of that subsection, it must be interpreted  
to provide that the notice of registration by the Superintendent is a final and binding  
decision of the Superintendent.  
20. CCRL refers to the purpose of the functus officio doctrine being to “provide finality and  
certainty to the parties. A definitive and final decision not only serves a crucial pragmatic  
function for the parties, it also preserves the integrity of the justice system.” CCRL points to  
practical considerations in the pension plan administration context that, in its view,  
dovetail closely with the rationale behind functus officio:  
18. The finality of s. 17(3) ensures certainty and clarity for administrators and members of  
pension plans. Section 18(2)(a) provides that, once the administrator of a pension plan  
receives a notice of registration under s. 17(3), the administrator is entitled to rely upon it  
and to administer the plan accordingly. In the present instance, CCRL has expended  
considerable time and resources in regards to the buy-out annuity policy conversion,  
Page 6 of 63  
which formed part of Amendment P-23.  
19. Administrators could not effectively administer pension plans if they were uncertain  
whether the Superintendent might change his mind regarding a decision that he had made  
to register an amendment. Through the combined effect of s. 17(3), s. 18(2)(a), and the  
definition of “registration” in the PBA, the legislature indicated its intention to provide  
for a clear and ascertainable point at which a plan amendment is registered.  
21. CCRL also points to past practice of the Superintendent as evidencing that the written  
reasons accompanying the decision to register a plan amendment are to support a  
decision and not alter it. Specific reference in this regard is made to my registration  
decision in respect of an earlier 2019 amendment CCRL labeled as P-22 (“Amendment P-  
22”).  
22. CCRL cites Jacobs Catalytic Ltd. v. I.B.E.W., Local 353, 2009 ONCA 749 (“Jacobs”) and  
Dumbrava v. Canada (Minister of Citizenship & Immigration), 1995 CarswellNat 1229  
(“Dumbrava”), cases that considered the application of functus officio to administrative  
decision-makers post Chandler. CCRL argues those cases stand for the proposition that,  
aside from the narrow exception to the functus officio doctrine set out in Chandler, there  
is no authority for an administrative decision-maker to revisit or reconsider a decision  
absent legislative authority. Speaking specifically to the PBA, CCRL argues that there is no  
legislative authority for the Superintendent to change his decision or render a new  
decision through the issuance of reasons. CCRL also points to the importance of  
regulatory consistency in the pension context and cites the Alberta Court of Queen’s  
Bench decision in Amoco Canada Petroleum Co. v. Alberta, [1992] A.W.L.D. 567 (“Amoco”).  
23. CCRL concludes its representations in the Notice of Objection stating that to allow the  
Superintendent to resile from the decision reflected in the Notice of Decision creates  
uncertainty, results in procedural unfairness to CCRL and ultimately prejudices the  
interests of the Plan members.  
24. It is important to note that while CCRL referred to procedural unfairness in paragraph 32  
of the Notice of Objection, it is in regard to and based upon the same facts that ground  
CCRL’s functus officio argument and does not refer to any other aspect of the procedure  
followed in making my registration decision with respect to Amendment P-23. In other  
words, the procedural unfairness alleged by CCRL is a by-product of my refusing to register  
the aspect of clause 3(h) of Amendment P-23 when I was, in CCRL’s view, without  
authority to do so and after CCRL had relied on what it believed to be my final decision to  
register Amendment P-23 in its entirety.  
LH Submission  
Page 7 of 63  
25. On July 7, 2021, I received the LH Submission from legal counsel on behalf of the Plan  
member, LH. LH had provided multiple submissions in December of 2020 opposing the  
registration of Amendment P-23. LH’s position in response to CCRL’s Notice of Objection is  
that the Superintendent was without authority to register the reduction in the indexation  
cap for past service provided for in clause 3(h) and the doctrine of functus officio does not  
apply where an administrative decision-maker makes a decision that it is not authorized to  
make under its enabling statute. LH cites Chandler and Atchison v. Workers' Compensation  
Board, 2001 BCSC 1661, as authorities that functus officio does not operate to prevent a  
decision-maker from revisiting a decision that was made outside of jurisdiction or  
otherwise a nullity. LH suggests that I did not change my mind nor make an error within  
jurisdiction, nor was there a change of circumstances, but rather I realized I made a  
decision that contravened the PBA and that was outside my authority to make. LH notes,  
as a further aggravating factor in this regard, that the aspect of the Notice of Decision that  
exceeded my authority was a failure to enforce a core minimum standard provided by the  
PBA that is of central importance to modern pension regulation.  
26. LH further states that there is no prejudice to CCRL, as the index cap reduction would not  
take practical effect until 2022. LH notes that if the Notice of Decision had been the  
Superintendent’s final decision, aggrieved parties such as LH could have sought judicial  
review of the decision and it may have been overturned. LH concludes on this aspect by  
stating that CCRL’s arguments about prejudice caused from a lack of finality have little  
relevance in a situation like this where the updated decision was released within a short  
period of time.  
27. LH advances an alternative argument that, as the Superintendent is an administrative  
actor with a right of reconsideration under the PBA, functus officio should be flexibly  
applied. He cites Chandler as authority. LH notes that CCRL relies on Dumbrava in the  
Notice of Objection and argues that Dumbrava is distinguishable from the present case  
due to the fact that, in Dumbrava, there was no right of reconsideration in the enabling  
statute and the PBA includes a right to reconsideration in section 22. LH posits that section  
22 of the PBA indicates that decisions of the Superintendent are not intended to be final in  
all circumstances and the functus officio doctrine should be applied flexibly. In further  
support of this argument, LH points to the fact that when the Superintendent determines  
whether a plan amendment complies with the PBA, the Superintendent is enforcing a  
minimum standard established by the PBA and it is not a discretionary decision. LH again  
raises the fact that there was no prejudice to CCRL as a result of the Superintendent  
reconsidering the Notice of Decision. LH suggests all of this leads to the conclusion that  
the balance of interests favours a flexible application of functus officio in these  
circumstances, as the consistent enforcement of PBA minimum standards outweighs the  
finality concerns behind the doctrine of functus officio.  
Page 8 of 63  
CCRL Reply  
28. My office wrote to CCRL and its counsel noting that they were copied on the LH  
Submission and offered them the opportunity to respond to it. Counsel for CCRL provided  
the CCRL Reply to my office on July 29, 2021.  
29. Regarding LH’s argument that functus officio did not apply to the Notice of Decision  
because the decision to register Amendment P-23 in its entirety was outside the  
Superintendent’s jurisdiction to make and was a nullity, CCRL responded that if the  
Superintendent is not restricted from reopening decisions whenever he decides he was  
not substantively correct, then it would give rise to the untenable situation where there  
is no certainty or finality to registration decisions under the PBA. CCRL says it is precisely  
this type of uncertainty and arbitrariness that the doctrine of functus officio was  
developed to prevent.  
30. CCRL also takes issue with LH’s labelling of the error I made in the Notice of Decision with  
respect to clause 3(h) of Amendment P-23 as a jurisdictional error. In this regard, CCRL  
says that it would have been reasonable for the Superintendent to accept the actuarial  
evidence submitted by CCRL’s actuaries and conclude that clause 3(h) did not result in a  
reduction of accrued benefits. This, CCRL suggests, shows that any error I made was at  
most an error within jurisdiction and would not have rendered the Notice of Decision a  
nullity. CCRL also points to the right of reconsideration in section 22 as proof that it was  
contemplated the Superintendent is capable of making mistakes within his jurisdiction,  
otherwise there would be no need for that section.  
31. CCRL disputes LH’s position that if functus officio does apply to the Superintendent, it must  
be applied flexibly in light of the fact the Superintendent is given the authority in section  
22 of the PBA to reconsider decisions. CCRL states that the reconsideration power in  
section 22 cannot be exercised unilaterally by the Superintendent, it can only be exercised  
if the plan administrator filing the amendment requests the Superintendent do so, and  
only if the Superintendent has refused to register the amendment. CCRL argues that as the  
Notice of Decision did not refuse to register Amendment P-23, CCRL did not ask the  
Superintendent to reconsider the decision, and section 22 did not become operable.  
32. The last substantive point raised in the CCRL Reply is that demonstrating prejudice is not a  
required criteria before functus officio applies to a decision. CCRL explains that it relied on  
the Notice of Decision and took several irrevocable and costly steps in reliance on  
Amendment P-23 being registered in its entirety, and it is simply fortuitous that it had not  
yet acted upon the portion of Amendment P-23 that I decided could not be registered.  
CCRL concludes on this aspect by noting that none of this prevents the doctrine of functus  
Page 9 of 63  
officio from applying where the constituent elements have been met, as they have in our  
present situation in CCRL’s view.  
Union Response  
33. The only other submission received that related to this reconsideration decision was from  
the Union. After our office notified CCRL that it could provide a reply to the LH Submission,  
a CCRL representative wrote to my office and requested that my office contact the Union  
to ask if they wished to make a submission in response to the LH Submission. The CCRL  
representative noted that as Amendment P-23 was collectively bargained, was signed by  
the Union and that LH is a Union member, the CCRL Labour Relations Department was of  
the view that it was important the Superintendent hear from the Union in regard to the LH  
Submission.  
34. By email dated July 15, 2021, my office wrote to the Union, provided them with a copy of  
the LH Submission and informed them the Union was being provided the opportunity to  
provide a response to the LH Submission. The Union provided a letter in response dated  
August 4, 2021, in which the Union stated:  
Thank you for providing Unifor 594 with the opportunity to respond to the submission put  
forward by Koskie Minsky LLP on behalf of [LH].  
While we don't have any input specifically in response to the submission, the Union can  
ensure that the changes outlined in Amendment P-23 were bargained in good faith. Albeit,  
if some of the proposed amendments cannot be implemented because they would be in  
contravention of The Acts and Regulations as previously accrued benefits, we will trust the  
process and leave it to the Superintendent to deliver a ruling.  
The Pension Benefits Act, 1992:  
35. This reconsideration decision is made pursuant to section 22 of the PBA which provides:  
Objection to certain actions of superintendent  
22(1) If the superintendent refuses to register a plan or a plan amendment, cancels a  
registration pursuant to subsection 21(1) or directs an administrator to amend an actuarial  
valuation report or cost certificate pursuant to subsection 11(5), the superintendent shall  
give the administrator notice in writing of that fact and set out the reasons for the decision in  
the notice.  
(2) In the case of a cancellation of registration, the superintendent shall specify the effective  
date of cancellation in the notice.  
Page 10 of 63  
(3) Within 60 days after receiving a notice pursuant to subsection (1), the administrator may  
deliver to the superintendent a notice of objection setting out the reasons for the objection  
and all relevant facts.  
(4) On receipt of a notice of objection, the superintendent shall:  
(a) reconsider the refusal, cancellation or direction to amend;  
(b) provide the administrator with an opportunity to make representations, if the  
administrator has requested the opportunity to do so;  
(c) rescind, vary or confirm the previous decision; and  
(d) give a notice in writing to the administrator that states the decision and the  
reasons for the decision.  
(5) Where an administrator delivers a notice of objection pursuant to subsection (3), the  
administrator may, notwithstanding the decision of the superintendent mentioned in  
subsection (1), administer the plan in a manner that reflects the amendment or report or  
cost certificate until the matter is dealt with pursuant to subsection (4).  
36. The decision which I have been asked by CCRL to reconsider is my decision reflected in the  
Written Reasons regarding the registration of Amendment P-23. Registration decisions  
with respect to plan amendments are made pursuant to section 17 of the PBA, which  
provides:  
Amendments  
17(1) Where an amendment is made to a plan that is registered or with respect to which an  
application for registration is pending or to any document mentioned in subclauses 16(1)(a)(ii)  
to (v), the administrator shall file a certified copy of the amendment with the superintendent  
within 60 days after the amendment is made.  
(2) Where a new document mentioned in subclauses 16(1)(a)(ii) to (v) is executed, the  
document is deemed to be an amendment to the plan for the purposes of this Act.  
(3) Where the superintendent is satisfied that the amendment complies with this Act, the  
superintendent may issue to the administrator a notice of registration with respect to the  
amendment.  
The Doctrine of Functus Officio:  
37. As was noted in the Notice of Objection and the LH Submission, it is well settled by the  
decision of the Supreme Court of Canada in Chandler that the doctrine of functus officio  
generally applies to administrative decision-makers. That case involved practice review  
proceedings in respect of an architectural firm by the Alberta Association of Architects.  
The facts in that case are readily distinguishable from those before me, however, the  
Court addressed the application of the doctrine of functus officio to administrative  
Page 11 of 63  
tribunals generally. Justice Sopinka, speaking for the majority of the Court, stated on this  
aspect:  
The general rule that a final decision of a court cannot be reopened derives from the decision of  
the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that  
the power to rehear was transferred by the Judicature Acts to the appellate division. The rule  
applied only after the formal judgment had been drawn up, issued and entered, and was subject  
to two exceptions:  
I. where there had been a slip in drawing it up, and,  
II. where there was an error in expressing the manifest intention of the court. See Paper  
Machinery Ltd. v. J. O. Ross Engineering Corp., 1934 1 (SCC), [1934] S.C.R. 186.  
In Grillas v. Minister of Manpower and Immigration, 1971 3 (SCC), [1972] S.C.R. 577,  
Martland J., speaking for himself and Laskin J., opined that the same reasoning did not apply to  
the Immigration Appeal Board from which there was no appeal except on a question of  
law. Although this was a dissenting judgment, only Pigeon J. of the five judges who heard the  
case disagreed with this view. At p. 589 Martland J. stated:  
The same reasoning does not apply to the decisions of the Board, from which there is no  
appeal, save on a question of law. There is no appeal by way of a rehearing.  
In R. v. Development AppealBoard, Ex p. Canadian Industries Ltd., the Appellate Division of the  
Supreme Court of Alberta was of the view that the Alberta Legislature had recognized the  
application of the restriction stated in the St. Nazaire Company case to administrative boards,  
in that express provision for rehearing was made in the statutes creating some provincial  
boards, whereas, in the case of the Development Appeal Board in question, no such provision  
had beenmade. The Court goes on to note thatoneof the purposes in setting up these boards  
is to provide speedy determination of administrative problems.  
He went on to find in the language of the statute an intention to enable the Board to hear  
further evidence in certain circumstances although a final decision had been made.  
I do not understand Martland J. to go so far as to hold that functus officio has no application to  
administrative tribunals. Apart from the English practice which is based on a reluctance to amend  
or reopen formal judgments, there is a sound policy reason for recognizing the finality of  
proceedings before administrative tribunals. As a general rule, once such a tribunal has reached  
a final decision in respect to the matter that is before it in accordance with its enabling statute,  
that decision cannot be revisited because the tribunal has changed its mind, made an error within  
jurisdiction or because there has been a change of circumstances. It can only do so if authorized  
by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery  
Ltd. v. J. O. Ross Engineering Corp., supra.  
Page 12 of 63  
To this extent, the principle of functus officio applies. It is based, however, on the policy ground  
which favours finality of proceedings rather than the rule which was developed with respect to  
formal judgments of a court whose decision was subject to a full appeal. For this reason I am  
of the opinion that its application must be more flexible and less formalistic in respect to the  
decisions of administrative tribunals which are subject to appeal only on a point of law. Justice  
may require the reopening of administrative proceedings in order to provide relief which would  
otherwise be available on appeal.  
Accordingly, the principle should not be strictly applied where there are indications in the  
enabling statute that a decision can be reopened in order to enable the tribunal to discharge  
the function committed to it by enabling legislation. This was the situation in Grillas, supra.  
[emphasis added]  
38. Later in his decision, Justice Sopinka stated the following regarding the application of  
functus officio to tribunal decisions that are nullities:  
Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted  
to reconsider the matter afresh and render a valid decision. In Re Trizec Equities Ltd. and Area  
Assessor Burnaby-New Westminster (1983), 1983 411 (BC SC), 147 D.L.R. (3d) 637  
(B.C.S.C.), McLachlin J. (as she then was) summarized the law in this respect in the following  
passage, at p. 643:  
I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a  
decision in the purported exercise of its power which is a nullity, may thereafter enter upon a  
proper hearing and render a valid decision: Lange v. Board of School Trustees of School District  
No. 42 (Maple Ridge) (1978), 1978  343 (BC SC), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v.  
Toronto Stock Exchange et al. (1968), 1968 6 (SCC), 67 D.L.R. (2d) 165, [1968] S.C.R.  
330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for  
judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:  
I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the  
whole matter afresh, after affording to the person affected a properopportunity to present  
its case, then its later decision will be valid.  
There is no complaint made by Trizec Equities Ltd. with respect to the hearing held on March  
19th. Accordingly, while the court exceeded its jurisdiction by purporting to increase the  
assessments on the morning of March 17, 1982, its subsequent decision of March 19, 1982,  
stands as valid.  
If the error which renders the decision a nullity is one that taints the whole proceeding, then  
the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v.  
Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 1978 343 (BC  
SC), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, 1968 6 (SCC), [1968]  
Page 13 of 63  
S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which  
vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the  
defect.  
[emphasis added]  
39. There is no doubt that Chandler is the preeminent authority on the issue and it establishes  
that the doctrine applies to final decisions made by administrative decision-makers,  
subject to a number of exceptions. All decisions post-Chandler have followed it closely on  
the issue of the application of functus officio to decisions of administrative decision-  
makers. While the courts in those subsequent decisions have not always been consistent  
in determining when to apply some of the exceptions set out by Justice Sopinka, the broad  
principles established by the majority in Chandler remain generally unscathed.  
40. Pursuant to clause 22(4)(c) of the PBA, I am limited on this reconsideration to reaching  
one of three possible results. I can rescind, vary or confirm my decision. Reading  
paragraphs 12, 25 and 33 of CCRL’s Notice of Objection together, I understand that CCRL is  
not suggesting that my Written Reasons be rescinded in their entirety, but they should in  
effect be varied by finding that the portions of the Written Reasons that speak to my  
refusal to register the portion of clause 3(h) should be found to be void and of no effect.  
41. In order to give effect to CCRL’s objection and vary my decision based on the application  
of the doctrine of functus officio, I must find that the Notice of Decision was a final and  
perfected decision. Functus officio can only apply once an administrative decision-maker’s  
authority is exhausted by rendering a final, perfected decision. This is the first issue that  
needs to be addressed in this reconsideration decision, because if the Notice of Decision  
was not a final, perfected decision, then functus officio is not engaged and we need go no  
further on this reconsideration. If I find the Notice of Decision was a final, perfected  
decision, then I would need to consider the exceptions to functus officio set out in  
Chandler and other cases and find that no exceptions apply. Some of the exceptions  
clearly do not apply to our facts and do not need to be addressed in this reconsideration  
decision. The apparent variation in registration result between the Notice of Decision and  
the Written Reasons was not a clerical error or ‘slip’ in drawing it up. It also cannot be said  
that it was due to a failure to express in the Notice of Decision my manifest intention  
regarding the registration of Amendment P-23. That leaves the remaining exceptions set  
out in Chandler and cases following Chandler in which the application of functus officio to  
administrative decision-makers was considered.  
42. Before I turn to examine each of the issues engaged in this reconsideration decision, I  
need to address a couple preliminary matters. The first is that in reconsidering my decision  
with respect to the registration of Amendment P-23, and specifically whether functus  
Page 14 of 63  
officio applies to the Notice of Decision, I find myself in an awkward situation. As will  
become clear later in this decision, some of the issues that must be considered are best  
answered if my subjective mindset when I issued the Notice of Decision are known. One  
example is the nature of the error I committed in the Notice of Decision, if it was a final  
decision, by stating that I had decided to register Amendment P-23 in its entirety,  
including the reduction in indexation for past service in clause 3(h). The nature of the error  
made would depend on what aspect I changed my view on in the Written Reasons. Was it  
the scope of my jurisdiction in subsection 17(3) of the PBA, a question of law such as the  
proper interpretation of subsection 19(3) of the PBA, or a purely factual matter such as  
the actuarial evidence provided to me? While I am obviously in the best position of  
anyone to determine what my line of thinking was when I issued the Notice of Decision  
and the Written Reasons, due to the principle of deliberative secrecy and my concern that  
any statements I make about my subjective mindset may appear to the parties to be self-  
serving, I am of the view it would not be appropriate for me to speak about what I was  
thinking during the relevant period. I will instead proceed only on the basis of the  
objective facts surrounding the issuance of the Notice of Decision and the Written Reasons  
that were observed or observable by the parties.  
43. As to the second preliminary matter, I note that the regulatory framework set out in the  
PBA will play a central role in determining the issues raised in this reconsideration. As will  
the application of the common law duty of procedural fairness to registration decisions  
pursuant to the PBA. An in-depth review of the regulatory framework and how the duty of  
procedural fairness applies, and the ramifications of not complying with that duty, is  
warranted.  
44. In paragraphs 30 through 37 of the Written Reasons, I set out in considerable detail how  
the regulatory framework established in the PBA protects pension plan members and  
former members. I also note how the PBA is silent on members’ and former members’  
right to participate in registration decisions made pursuant to the PBA. I won’t repeat  
those paragraphs here for the sake of brevity. However, my conclusion on members’ and  
former members’ participatory rights should be reiterated here as it plays a crucial role in  
my decision on this reconsideration.  
45. Beginning in paragraph 34 of the Written Reasons, I said:  
34. While the registration framework in the PBA does not contemplate direct member or  
former member involvement in the registration process or hearings arising out of that  
process, it does contain mechanisms to ensure member and former member rights and  
interests are protected. The sections listed in the paragraph above are prime examples.  
Much of the onus of protecting the rights and interests of members and former  
members rests with the Superintendent, to be exercised through the Superintendent’s  
Page 15 of 63  
discretionary decisionmaking responsibilities under the PBA. Indeed, this solemn  
responsibility has been recognized in court decisions such as Huus v. Ontario  
(Superintendent of Pensions), [2002] 58 O.R. (3d) 380 (Ontario Court of Appeal) (“Huus”)  
and Hawker Siddeley Canada Inc. v Nova Scotia (Superintendent of Pensions), [1993] NSJ  
No 407 (Nova Scotia Supreme Court) affirmed by the Nova Scotia Court of Appeal in  
[1994] NSJ No 102 (“Hawker”)  
[…]  
36. This unique framework in the PBA is a product of the nature of pension plans and the  
objectives behind the PBA. Pension plans are more than just complex contracts that  
have very serious ramifications for the parties to those contracts, they are the backbone  
of the Canadian retirement income system. While there are alternative retirement  
savings vehicles to pension plans, pension plans remain a core part of the broader  
system. This recognition that pension plans serve an important social good is infused  
throughout the PBA and is the reason the PBA is structured the way it is. As I noted in  
paragraph 148 of the 2019 Decision, embedded in the PBA is a delicate balance best  
described by the Supreme Court of Canada in Monsanto Canada v Ontario  
(Superintendent of Financial Services), 2004 SCC 54, where the Court said the following  
about the objectives of the pension benefits legislation of Ontario:  
14 On the one hand, the protection of the rights of vulnerable groups is a  
central and long-standing function of the courts. The protectionist aim of the  
legislation is especially evident in s. 70(6), which seeks to preserve the equal  
treatment and benefits between situations of partial wind-up and full wind-  
up. On the other hand, pension standards legislation is a complex  
administrative scheme, which seeks to strike a delicate balance between the  
interests of employers and employees, while advancing the public interest  
in a thriving private pension system…  
[Emphasis added]  
37. This registration decision is one of the key mechanisms through which this delicate  
balance is maintained and the Superintendent is the point person the PBA charges with  
the responsibility of ensuring this balance is adhered to. At the end of the day, the  
framework in the PBA demands that the Superintendent make the ‘right’ decision that  
strikes this balance as guided by the specific provisions of the PBA registration  
framework, including subsection 19(3). The nature of this decision is very different than  
a decision in which the decision-maker is charged with settling a dispute between two  
opposing parties or the sanctioning or punishment of an individual or individuals. For  
one, the decision-maker in those other types of decisions is typically expected to be a  
stranger to the parties, without any substantive knowledge of the facts of the issue in  
question, in order to ensure not only impartiality of the decision-maker, but the  
Page 16 of 63  
perception of impartiality by the parties and the public. In registration decisions under  
the PBA, the Superintendent is not going to be a stranger to the parties, nor to the  
substantive factual framework against which the decision must be made. The  
registration framework established in the PBA expects the exact opposite: a decision-  
maker who is not a stranger to the parties and who has a diligent understanding of the  
plan in question and the respective interests of the parties affected by the decision.  
How else is the Superintendent to effectively protect the interests of members and  
former members as dictated by sections 9(1)(a)(ii) and 19(3) of the PBA and noted in  
court decisions such as Huus and Hawker.  
[…]  
38. Another reason why the regulatory framework of the PBA contemplates a different  
decision-making process than is typically used by the courts and other decision-making  
bodies is the large number of parties and potential conflicting interests that may be  
involved in a registration decision. Pension plans can be very large, often having  
hundreds or thousands of members and former members. It is not uncommon for active  
members and retirees to have conflicting positions with regard to the registration of an  
amendment, as the nature of their interests and concerns are different. It is also not  
unheard of for different cohorts within those two groups to have conflicting  
perspectives as well. Following a process where the only communication of evidence  
and submissions to the decision-maker occurs within an open forum in which all  
interested persons are present and have the opportunity to respond to all other  
submissions would be extremely cumbersome and impractical in the PBA registration  
context.  
39. It is for these reasons that the PBA does not envision or contemplate that the  
Superintendent, in making a registration decision such as this one, is limited to deciding  
based only upon the submissions of interested or affected parties. The PBA  
contemplates the very opposite, that the Superintendent make a registration decision  
without any submissions.  
40. However, while the PBA does not contemplate the involvement of members or former  
members in the plan amendment registration process or any hearings arising out of the  
process, it is my view that in many circumstances providing the opportunity for  
members and former members to make submissions regarding an amendment prior to  
its registration is not only appropriate, but better ensures that their interests are  
understood and that the ‘right’ decision is made by the Superintendent. I am also aware  
of court decisions in other provinces determining that the pension regulator in those  
jurisdictions is required by the common law duty of fairness to provide members or  
former members in certain circumstances with an opportunity to be heard.  
46. In the Written Reasons I stopped short of considering whether the common law duty of  
procedural fairness required that members and former members had a right to be  
Page 17 of 63  
provided with an opportunity to be heard with respect to my decision to register  
Amendment P-23. I was not required to decide that matter as part of my decision as I had  
already provided Plan members and former members with an opportunity to be heard.  
However, I am of the view that the application of the common law duty of procedural  
fairness to plan amendment registration decisions pursuant to the PBA plays a decisive  
role in this reconsideration decision.  
47. It has been settled law in Canada for decades now that there is, as a general common law  
principle, a duty of procedural fairness lying on every public authority making an  
administrative decision which affects the rights, privileges or interests of an individual:  
Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. Also see Knight v. Indian Head  
School Division No. 19, [1990] 1 S.C.R. 653 (“Knight”) and Baker v. Canada (Minister of  
Citizenship andImmigration) [1999] 2 S.C.R. 817 (“Baker”). We also know from these cases  
that the scope and content of the duty of procedural fairness to be applied in respect of a  
particular decision depends on the specific context of the decision.  
48. Several Canadian courts have considered the application of the common law duty of  
procedural fairness to decisions of pension regulators when making regulatory decisions  
that impact pension plan members and former members. Some of these decisions were  
made at a time when the duty of procedural fairness was in its early stages of  
development and still being shaped by the courts. Others were more recent. The general  
perspective of the courts’ in these decisions has remained relatively constant even as the  
concept of procedural fairness in the larger context has matured.  
49. In Re Collins and Pension Commission of Ontario, 1986 3913, (“Collins”) a  
unanimous decision of the Ontario High Court of Justice, Divisional Court, the Court dealt  
with a judicial review application in respect of a decision of the Pension Commission of  
Ontario in which it consented to the removal by Dominion Stores Limited (“Dominion”) of  
a significant sum from the funds of the pension plan maintained by Dominion for its  
employees. The union and its members applied to the Court for an order quashing the  
consent and directing the return of the funds on a number of grounds. It is noteworthy  
that, as described in paragraph 33 of the Court’s decision, neither the Pension Benefits Act  
(Ontario) or the regulation made under it included a requirement that notice be given to  
anyone of the application for consent. After noting this, the Court stated beginning at  
paragraph 35:  
[35] Is requirement of notice imposed by common law? Does the doctrine of fairness require  
it? Those questions require consideration of the nature of the commission's mandate, and  
the nature of the interest that members of the plan, or their agent, the union, had in the  
subject-matter of the commission's deliberations.  
Page 18 of 63  
[36] First, it appears that the commission was established to ensure that certain interests  
were protected. While there is no doubt that those interests included the employer's, there  
appears to be equally no doubt that the commission was established to safeguard the plan  
members' interests as well. The commission, in effect, acknowledges that in its guidelines  
which stress its concern to prevent the removal of so much of the surplus funds from a plan  
that would endanger the plan's solvency. While the commission may not, strictly speaking,  
be a trustee for the members, for it holds no money belonging to the plan, it would be  
artificial to conclude that the commission's obligation to members is lower than the high  
standard of fiduciary obligation imposed on trustees.  
[…]  
[40] My conclusion is that the duty owed by the commission, to both plan employees and  
Dominion as beneficiaries of the trust, was equivalent to that of a trustee. I have no  
hesitation in calling it a fiduciary duty; the law knows none higher.  
[41] It is difficult to imagine why the commission was established without accepting that its  
principal function was to protect the interests of plan members. Who is more interested in  
the solvency of a pension plan than its members, who are either depending upon it as a  
source of income in their retirement years, or looking forward to the day when they will, or  
must? The commission stresses its concern for solvency in its guidelines. Since solvency can  
be of greater interest to none than plan members, the commission appears to be well aware  
of its duty to those members.  
[42] While an attempt was made before us to depreciate the commission's role as watchdog  
over the interests of plan members, to the extent of a suggestion that its consent really was  
of no effect at all, it can hardly be suggested that plan members had no interest at all in the  
decisions of the commission. The commission itself, in its guidelines, acknowledged that  
there might be circumstances in which the members' interests might require them to be  
notified of an application to remove funds…  
[…]  
[44] While it is not necessary on this aspect of the matter to consider whether plan members  
had a right to the surplus funds, any more than on the face of things Dominion had no right,  
it seems obvious that they had a vital interest in them, in particular, whether they remained  
in the plan in order to fund its present and future obligations, or were withdrawn from it. It is  
difficult to see how the interest of the plan members was of any lesser quality or degree  
than Dominion's.  
[…]  
[50] The result must be, in my opinion, that the commission owes a duty of fairness to  
those whose interests may, or will, be affected by its decision. What that duty requires, in  
procedural terms, will depend on the circumstances, as Dickson J. points out. The  
appropriate procedure in any given case might run from a full and formal hearing, at one end  
of the spectrum, down to simple, even informal notice, and an opportunity to respond, as in  
Page 19 of 63  
Nicholson, supra. In my opinion, at the very least, the commission should have required  
Dominion to give notice of its application to the members of the plan or their union. It would  
have been simpler to notify the union, but we were told by counsel that Dominion kept a  
mailing list of plan members, and there would thus have been no great difficulty in notifying  
them individually.  
[51] The object of requiring notice would be, of course, to give the union or plan members an  
opportunity to defend their interest. They could not do this without knowing what the  
application was based on, so they would have to be furnished with the documents  
supporting the application. One critical document is the "actuarial report and cost certificate  
prepared as of a current date showing the funded status of the plan" required under the  
commission's guidelines. That report contains, of course, an expression of opinion. The  
opinions of experts are known to vary; one opinion should not be treated as determinative.  
Surely the members or their union should have been made aware of the basis on which the  
opinion rested so that they could place it before an expert, or experts, of their choosing. It  
may be that all the experts would agree on the amount that could have been removed from  
surplus, assuming any could legally be removed, but that eventuality cannot be assumed.  
Indeed, I think it unlikely. Some idea of how widely opinions might vary is afforded by the  
fact that Mr. Black believed that $60 to $75 million could be "recovered", as he put it,  
whereas consent was given for the withdrawal of only $37,951,000. The commission has not  
revealed how it came to settle on that figure; it may be that it adopted an opinion of its own.  
[52] Further, plan members or the union should have been given an opportunity to put their  
point that Dominion had no right, on the plan documents as they stood at the time, to  
remove any of the assests [sic].  
[53] While s. 37 of the Act excludes the operation of the Statutory Powers Procedure Act  
from the "determinations of the Commission" it cannot exclude the operation of the  
common law, and the duty of fairness it imposes. That is well-established: see Re Downing  
and Graydon et al. (1978), 21 O.R. (2d) 292, 92 D.L.R. (3d) 355 (Ont. C.A.).  
[54] In my opinion, the commission failed in its duty of fairness and its decision should not be  
allowed to stand.  
[emphasis added]  
50. In addressing Dominion’s position that, notwithstanding the Pension Commission may  
have contravened the duty of fairness owed to the union and its members, the Court can  
only quash the decision and has no authority to order the funds removed be returned to  
the pension plan fund, the Court stated at paragraph 79:  
[79] At the same time, the commission was determining a valuable right of plan members.  
That was to have the commission ensure that the removal of funds would not imperil the  
solvency of the plan. No one could have a greater interest in the continued solvency of the  
plan than the plan members. The commission had a clear duty to protect their interests and  
the members had an equivalent right to have them protected. We asked respondent's  
Page 20 of 63  
counsel: "Whose interests was the Commission established to protect?" The answer could  
only be: the members of the plan. In my respectful opinion, to accept, as respondents  
apparently do, that the members had a vital interest in the continued solvency of the plan,  
but not a right to it, is a sophistry intended to distract this Court from its essential function,  
which is to ensure, to the best of its ability, that justice prevails.  
[emphasis added]  
51. This finding in Collins that the administrative decision-maker under the pension benefits  
legislation of Ontario owed a duty of fairness to plan members of a level of significance  
approaching that of a fiduciary obligation could be viewed narrowly and restricted to the  
facts of that particular case. There, the pension funds were held in trust and the consent  
of the Pension Commission of Ontario allowed some of those trust funds to be withdrawn  
from the trust. However, in Hinds v. Ontario (Superintendent of Pensions), [2002] O.J. No  
525 (“Hinds”), a decision of the Ontario Court of Appeal in which neither trust funds nor  
the law of trusts was involved, the unanimous Court expressly adopts that passage from  
Collins.  
52. Hinds involved the sale of a business and subsequent application to the Superintendent of  
Pensions for Ontario for approval to transfer the vendor company’s pension plan to the  
purchaser company. The Pension Benefits Act (Ontario) contemplated that the plan  
members of the plan being transferred were entitled to be heard on the application. The  
Act did not contemplate that the members of the purchaser company’s plan be entitled to  
be heard on the application. The Superintendent approved the transfer without giving the  
members of the purchaser company’s plan an opportunity to be heard. Those members  
applied for judicial review to have the Superintendent’s decision quashed. The applicant  
plan members cited Collins as authority that the Superintendent was required to take their  
interests into account in making the transfer decision. In response, Justice MacPherson,  
speaking for the Court, said at paragraph 42 of the decision:  
[42] I agree with the appellants that the Superintendent owes a high duty to employees  
with Ontario pension plans. Indeed, on that issue I would adopt the particularly eloquent  
language used by Reid J. in Collins, at p. 285 O.R.:  
[I]t appears that the commission was established to ensure that certain interests were  
protected. While there is no doubt that those interests included the employer's, there  
appears to be equally no doubt that the commission was established to safeguard the  
plan members' interests as well . . . While the commission may not, strictly speaking,  
be a trustee for the members, for it holds no money belonging to the plan, it would be  
artificial to conclude that the commission's obligation to members is lower than the  
high standard of fiduciary obligation imposed on trustees.  
[emphasis added]  
Page 21 of 63  
53. The Court in Hinds ultimately rejects the applicant plan members’ argument on the basis  
that the applicant plan members would have an opportunity to be heard when the  
purchaser company applied to amend its plan to include the pension fund and employees  
of the vendor company. The applicants’ suggestion that they could be irrevocably  
adversely affected by the pension plan transfer in a way that could not be remedied when  
the Superintendent heard them with respect to the amendment of the purchaser  
company’s plan was “nothing more than speculation.” The Court states in this regard at  
paragraph 48:  
[48] The appellants say that this might be too late because if the Superintendent approves a  
transfer with insufficient funds, the insolvency of the merged plan may be irreparable.  
This strikes me as nothing more than speculation. In the context of an amendment  
application, the Superintendent will have the same high duty to protect the interests of the  
Colgate employees -- all of them -- that the Superintendent had when the interests of only  
the Bristol-Myers employees were before him on the transfer application. Pursuant to s.  
26(1) of the PBA, the appellants will receive notice of the proposed amendment and they will  
be able to make submissions concerning it. If the Superintendent accepts those submissions,  
he has broad authority under s. 18 of the PBA to make an appropriate order.  
[emphasis added]  
54. The Ontario Court of Appeal decision in Huus v. Ontario (Superintendent of Pensions),  
[2002] O.J. No. 524 (“Huus”), a companion decision to Hinds, was, like Collins, a case in  
which the pension plan included trust provisions. Justice MacPherson, again speaking for  
the Court, said beginning at paragraph 25 of the decision:  
[25] I start with this observation: pension plans are for the benefit of the employees, not  
the companies which create them. They are a particularly important component of the  
compensation employees receive in return for their labour. They are not a gift from the  
employer; they are earned by the employees. Indeed, in addition to their labour,  
employees usually agree to other trade-offs in order to obtain a pension. As explained by  
Cory J. in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 at p. 646, 115 D.L.R. (4th)  
631:  
In the case of pension plans, employees not only contribute to the fund, in addition  
they almost invariably agree to accept lower wages and fewer employment benefits in  
exchange for the employer's agreeing to set up the pension trust in their favour.  
[26] Similar statements have been expressed by this court in several cases. In Gencorp  
Canada Inc. v. Ontario (Superintendent of Pensions) (1998), 39 O.R. (3d) 38, 158 D.L.R. (4th)  
497 (C.A.), at p. 43 O.R., Robins J.A. said:  
[T]he Pension Benefit Act is clearly public policy legislation establishing a carefully  
calibrated legislative and regulatory scheme prescribing minimum standards for all  
Page 22 of 63  
pension plans in Ontario. It is intended to benefit and protect the interests of  
members and former members of pension plans. . . .  
[...]  
[28] The implication of these authorities is that the Superintendent owes a high duty to  
employees with Ontario pension plans. As for the nature and consequences of this duty,  
I would adopt, as I did in Hinds, the eloquent language used by Reid J. in Re Collins and  
Pension Commission of Ontario (1986), 56 O.R. (2d) 274, 31 D.L.R. (4th) 86 (Div. Ct.)  
("Collins"), at p. 285 O.R.:  
[I]t appears that the commission was established to ensure that certain interests were  
protected. While there is no doubt that those interests included the employer's, there  
appears to be equally no doubt that the commission was established to safeguard the  
plan members' interests as well While the commission may not, strictly speaking,  
be a trustee for the members, for it holds no money belonging to the plan, it would be  
artificial to conclude that the commission's obligation to members is lower than the  
high standard of fiduciary obligation imposed on trustees.  
[emphasis added]  
55. While Justice MacPherson does mention the trust provisions in the pension plan in Huus,  
he does so only to emphasize that the lower court’s decision in that case was based solely  
on the procedural issues and that no decision was made with respect to the substantive  
pension law issues, including the trust aspect. Justice MacPherson’s decision also appears  
on its face to focus solely on the procedural issues. While it could be argued the fact that  
trust provisions were involved impacted Justice MacPherson’s ruling on the procedural  
issues and his conclusion regarding the duty of fairness owed by the Superintendent, that  
is never discussed or mentioned by Justice MacPherson in the decision. Indeed, his  
perspective on the application of the common law duty of procedural fairness to decisions  
of the Superintendent of Pensions in Huus is very similar to that he expressed in Hinds. He  
expressly adopted in both decisions the same passage from Collins that speaks to the high  
duty owed by the Superintendent to employees with Ontario pension plans. I take from  
these decisions that in Ontario, the Superintendent owes a high duty of fairness to plan  
members regardless of whether a trust is involved.  
56. In Hawker Siddeley Canada Inc. v. Nova Scotia (Attorney General), 1991 4325  
(“Hawker”), Justice Nathanson of the Nova Scotia Supreme Court, Trial Division, heard an  
application by an employer and pension plan administrator for declarations regarding a  
decision by the Nova Scotia Superintendent of Pensions in respect of a pension plan wind-  
up report.  
Page 23 of 63  
57. In determining the scope of the Superintendent of Pensions’ authority to approve plan  
wind-up reports, Justice Nathanson considered the purposes of the Nova Scotia pension  
benefits legislation and the duties owed by the Superintendent of Pensions to members of  
pension plans. He made the following comments in this regard:  
Issue 1(a): Purposes of the Act  
The provisions of the Pension Benefits Act, R.S.N.S. 1989, Ch.340, when read  
together and as a whole, indicate that the general purpose of the Act is to regulate and  
supervise the administration of every pension plan that is provided for persons employed in  
the province. The Act attempts to ensure that pension plans are administered completely  
and in good faith according to a fixed statutory scheme.  
Subject to that general purpose, the Act is directed at the protection of the rights  
and interests of employees who are members of pension plans. In reference to the  
comparable statute in force in Ontario, the Pension Benefits Act, S.O. 1987, Ch.35, which is  
very similar to the Nova Scotia statute, Mr. Justice Blair stated in Firestone Canada Inc. v.  
Pension Commission of Ontario et al. (unreported, Ont. C.A. No. 568/90):  
"... The Act is clearly intended to benefit employees. It prescribes minimum standards  
for all pension plans in the province of Ontario. Section 20(1) and (2) makes it  
applicable to all pension plans whether or not they have been amended to comply  
with it.  
In particular, the Act evinces a special solicitude for employees affected by  
plant closures. Before a pension plan can be wound up, the Pension Commission of  
Ontario must be satisfied that it is actuarially sound and capable of meeting its  
obligations to pensioners ..." (emphasis added)  
See also Collins, and Batchelor et al. v. Pension Commission (Ont.) et al. (1986),  
16 O.A.C. 24 (Div. Ct.) at pp.34 and 41.  
[…]  
Issue 1(c): Powers and Duties of the Superintendent  
The foregoing review of the scheme of the Act points up the many powers of the  
Superintendent in regard to winding up pension plans. The Superintendent has the power to  
change the effective date of a wind-up which was initiated by the plan administrator, to  
order on his or her own initiative a wind up a pension plan in whole or in part, and to refuse  
to approve a wind-up report and thereby prevent payments out of the pension fund or the  
wind up of the pension plan. In addition, s.89(4) appears to vest in the Superintendent the  
power to attach terms and conditions to an approval or consent pursuant to the Act or  
regulations. The Superintendent also has the power to appoint an administrator to wind up a  
pension fund.  
Page 24 of 63  
In exercising those powers, the Superintendent is subject to what may be termed general  
duties and specific duties.  
As to the general duties of the Superintendent, which are set out in s.8(2) and s.10(c), there  
is no evidence in this case as to any directions having been given by the Minister nor of any  
assignments having been made by the Governor in Council or the Minister.  
Some specific duties are set out in ss.89 and 90. The former provision includes the duty to re-  
consider and hold a hearing for re-consideration. The latter section requires the  
Superintendent to serve notice of a proposed order and transmit a copy of the resulting  
order and reasons. The evidence is not clear whether formal re-consideration was ever  
requested or required in the present case.  
In addition, the Superintendent is also subject to duties which are non-statutory in nature.  
The Ontario Pension Commission owes a fiduciary duty and a duty of fairness to pension  
plan members in matters surrounding the question of whether it ought to consent to the  
withdrawal of funds from a pension plan: see Collins, and Batchelor et al. v. Pension  
Commission (Ont.) et al., (supra), at pp.34 and 41. Since the Nova Scotia statute attributes  
to the Superintendent of Pensions similar powers and duties to those attributed by the  
Ontario statute to the Pension Commission, no doubt the Superintendent of Pensions owes  
similar duties to members of pension plans in this province.  
[emphasis added]  
58. At the end of the decision, Justice Nathanson added a brief postscript addressing what he  
viewed to be troubling conduct of the plan administrator in the matter. Justice Nathanson  
commenced the postscript with the following:  
POSTSCRIPT  
As indicated previously in this decision, the Superintendent owes a fiduciary duty  
and a duty of fairness in regard to the funds held in a pension plan. The Act points this out  
to some extent in s.75(5) which gives the Superintendent the statutory authority to protect  
the interests of members and former members.  
[emphasis added]  
59. Justice Nathanson’s decision was affirmed by the Nova Scotia Court of Appeal: 1994 NSCA  
91 (). The Court of Appeal did not comment specifically on the passages of Justice  
Nathanson’s judgment cited above.  
60. The last pension decision I will note here is that of the Ontario Superior Court of Justice,  
Divisional Court, in Baxter v. Ontario (Superintendent of Financial Services), 2004  
45494 (“Baxter”). In that case, the employer company maintained two separate pension  
plans, one for hourly-paid employees (the “hourly plan”) and the other for salaried hourly-  
paid employees (the “salaried plan”). The employer applied to the Superintendent of  
Page 25 of 63  
Financial Services (formerly the Superintendent of Pensions) to approve the transfer of the  
assets of the salaried plan into the hourly plan to merge the plans. Certain members and  
former members of the salaried plan objected to the transfer on the basis that the  
significant excess assets in the salaried plan would be used to fund the entire merged plan.  
The Superintendent consented to the transfer. The objecting members and former  
members requested a hearing by the Financial Services Tribunal (the successor  
organization to the Pension Commission) with respect to the Superintendent’s decision.  
The majority of the Tribunal held that it did not have jurisdiction to conduct the requested  
hearing. The Tribunal then went on the decide the merits of the challenge in case it was  
wrong on the jurisdiction question and ultimately concluded the transfer complied with  
the requirements of the legislation.  
61. The unanimous Court ultimately dismissed the appeal from the Tribunal’s decision.  
However, on the issue of jurisdiction, the Court agreed with the minority decision of the  
Tribunal and found the Tribunal had jurisdiction to hear the challenge of the  
Superintendent’s consent to the transfer. The crux of the jurisdiction issue was the  
interpretation of section 89 of the Pension Benefits Act (Ontario). Subsections (1) to (7) of  
that provision provided:  
89.(1) Where the Superintendent proposes to refuse to register a pension plan or an  
amendment to a pension plan or to revoke a registration, the Superintendent shall serve  
notice of the proposal, together with written reasons therefor, on the applicant or  
administrator of the plan.  
(2) Where the Superintendent proposes to make or to refuse to make an order in relation to,  
subsection 42(9) (repayment of money transferred out of a pension fund);  
subsection 43(5) (repayment of money paid to purchase pension, deferred pension or  
ancillary benefit);  
subsection 80(6) (return of assets transferred to new pension fund);  
(d) subsection 81(6) (return of assets transferred to new pension fund);  
(d.1) section 83 (the Guarantee Fund applies to a pension plan);  
section 87 (administration of pension plan in contravention of Act or regulations); or  
(f) section 88 (preparation of report),  
the Superintendent shall serve notice of the proposal, together with written reasons  
therefor, on the administrator and any other person to whom the Superintendent proposes  
to direct the order.  
(3) Where the Superintendent proposes to make or to refuse to make an order requiring an  
administrator to accept an employee as a member of a class of employees for whom a  
pension plan is established or maintained, the Superintendent shall serve notice of the  
Page 26 of 63  
proposal, together with written reasons therefor, on the administrator, and the  
Superintendent shall serve or require the administrator to serve a copy of the notice and the  
written reasons on the employee.  
(3.1) Where an application is filed in accordance with subsection 78(2) for the payment of  
surplus to the employer and the Superintendent proposes to consent or refuse to consent  
under subsection 78(1), the Superintendent shall serve notice of the proposal, together with  
written reasons therefor, on the applicant and on any person who made written  
representations to the Superintendent in accordance with subsection 78(3).  
(3.2) Where an application is filed in accordance with subsection 78(4) and the  
Superintendent proposes to consent or refuse to consent under subsection 78(4), the  
Superintendent shall serve notice of the proposal, together with written reasons therefor, on  
the applicant and the Superintendent may require the applicant to transmit a copy of the  
notice and the written reasons on such other persons or classes of persons or both as the  
Superintendent specifies in the notice to the applicant.  
(4) When the Superintendent proposes to refuse to give an approval or consent or  
proposes to attach terms and conditions to an approval or consent under this Act or the  
regulations, other than a consent referred to in subsection (3.1) or (3.2), the Superintendent  
shall serve notice of the proposal, together with written reasons therefor, on the applicant  
for the approval or consent.  
(5) Where the Superintendent proposes to make an order requiring the wind up of a pension  
plan or declaring a pension plan wound up, the Superintendent shall serve notice of the  
proposal, together with written reasons therefor, on the administrator and the employer,  
and the Superintendent may require the administrator to transmit a copy of the notice and  
the written reasons on such other persons or classes of persons or both as the  
Superintendent specifies in the notice to the administrator.  
(6) A notice under subsection (1), (2), (3), (3.1), (3.2), (4) or (5) shall state that the person on  
whom the notice is served is entitled to a hearing by the Tribunal if the person delivers to  
the Tribunal within thirty days after the notice under that subsection, notice in writing  
requiring a hearing, and the person may so require such a hearing  
(7) Where the person on whom the notice is served does not require a hearing in accordance  
with subsection (6), the Superintendent may carry out the proposal stated in the notice.  
[underline and emphasis added]  
62. The Tribunal majority considered the provisions noted above and held that subsections  
89(4), (6) and (7) were unambiguous in providing that only the person who applied for the  
Superintendent’s consent or approval to a transfer of assets was entitled to receive the  
notice of refusal from the Superintendent and only that person in those circumstances  
could ask the Tribunal for a hearing. The Tribunal majority concluded that it was bound to  
Page 27 of 63  
follow the unambiguous wording chosen by the Legislature, even if it resulted in  
asymmetrical, one-sided procedural rights. The Tribunal majority also noted that recent  
amendments to section 89 expanded subsections 89(3.1) and (3.2) to expressly  
contemplate notice and a right to a hearing where the Superintendent either consents or  
refuses to consent in the specified instances to which those subsections applied. No such  
amendment was made to subsection 89(4), and it remained on its face one-directional, in  
that notice and a right to a hearing by the Tribunal was only provided where the  
Superintendent refused to consent (or provided conditional consent) and only to the party  
who applied for consent. Although not specifically expressed by the Tribunal majority, I  
would also note that in the case of subsection 89(3.1), regardless of which way the  
Superintendent decided, under the amended provision the aggrieved party was entitled to  
a hearing by the Tribunal.  
63. On appeal, the Court held that the “applicant” referred to in subsection 89(4) could be  
read to include the pension plan members opposed to the asset transfer who “make  
application” or “counter-application” to the Superintendent seeking a rejection of the  
company’s request for approval. In arriving at this interpretation, the Court notes at  
paragraph 19 of the decision that the Superintendent had in fact provided to the  
employees notice of his proposed consent to the transfer and advised them of their right  
to be heard by the Tribunal:  
[19] The Superintendent served the employees with the notice of the proposed consent, and  
advised them of their right to a Tribunal Hearing. While the giving of such advice cannot be  
seen as establishing jurisdiction, it is indicative of the broad consensus in administrative,  
legal and judicial circles, of the requirement for procedural fairness on such a fundamental  
issue.  
64. The Court, beginning in paragraph 20 of the decision, then addressed the Tribunal  
majority’s approach to interpreting subsection 89(4) as follows:  
[20] Before dealing with some of the legal precedents that offer some guidance, it is  
instructive to examine the rather narrow basis for the Tribunal’s finding and the Company’s  
submission that the Tribunal lacks jurisdiction. They parsed the language of s. 89 (4) to find  
that rights of review exist only where the decision goes against the applicant; and used the  
maxim unius est exclusio alterius as the basis for an argument that the legislature made a  
policy choice to expand the right to a Tribunal Hearing in some circumstances and not in  
others as illustrated by ss. 89(3.1) and 89 (3.2).  
[21] With respect, the denial of a right of one party to be heard, while protecting the right  
of the other party, when both parties have substantial interests at stake, would require  
considerably clearer and less ambiguous legislative language. As shown earlier, who the  
applicant is can often be determined on the basis of the priority in time of the request or  
indeed whether the “respondent” files something in the nature of a counter-application.  
Page 28 of 63  
65. In paragraph 25 of the decision, the Court reviews and applies the factors set out by the  
Supreme Court of Canada in Monsanto Canada v Ontario (Superintendent of Financial  
Services), 2004 SCC 54 (Monsanto) regarding the proper approach to interpreting the  
Ontario Pension Benefits Act. The Court notes that one factor to be considered is the  
object of the Act, and in this regard, the Court says:  
D. Object of the Act  
In Monsanto, supra, the court said the following with regard to the object of the Act at para.  
38:  
The Act is public policy legislation that recognizes the vital importance of long-term  
income security. As a legislative intervention in the administration of voluntary  
pension plans, its purpose is to establish minimum standards and regulatory  
supervision in order to protect and safeguard the pension benefits and rights of  
members, former members and others entitled to receive benefits under private  
pension plans (see GenCorp, supra [GenCorp Canada Inc. v. Ontario (Superintendent,  
Pensions) (1998), 158 D.L.R. (4th) 497 (Ont. C.A.)]; Firestone Canada Inc. v. Ontario  
(Pension Commission) (1990), 1 O.R. (3d) 122 (C.A.), at p. 127). This is especially  
important when, as recognized by this Court in Schmidt v. Air Products Canada Ltd.,  
[1994] 2 S.C.R. 611, at p. 646, it is recommended that pensions are now generally  
given for consideration rather than being merely gratuitous rewards. At the same  
time, the voluntary nature of the private pension system requires the interventions in  
this area to be carefully calibrated. This is necessary to avoid discouraging employers  
from making plan decisions advantageous to their employees. The Act thus seeks, in  
some measure, to ensure a balance between employee and employer interests that  
will be beneficial for both groups and for the greater public interest in established  
pension standards. [Our emphasis.]  
We see no need to say any more on this factor.  
[emphasis added]  
66. Beginning at paragraph 26 of the decision, the Court goes on to review the evolution of  
the jurisprudence in Ontario on the pension regulator’s duty owed to employees with  
Ontario pension plans and the appropriate balance between employee and employer  
interests to be reflected in the regulator’s decision-making process:  
The Jurisprudence  
[26] Finally, the case law, to the extent that it has canvassed the issue, supports the position  
of the Superintendent, the minority, the appellants, and the union.  
[27] We agree with paragraph 39 of the appellant’s factum on jurisdiction where they  
argue:  
Page 29 of 63  
The Ontario Court of Appeal has determined “the Superintendent owes a high duty to  
employees with Ontario pension plans” in matters of process when considering  
merger applications under Section 81. This duty is not lower “than the high standard of  
fiduciary obligation imposed on trustees.” Hinds v. Ontario (Superintendent of  
Pensions) (2002), 58 O.R. (3d) 367 (Ont. C.A.) at 375, 378; Huus v. Ontario  
(Superintendent of Pensions) (2002), 58 O.R. (3d) 380 (Ont. C.A.) at 387 and Monsanto  
Canada Inc., supra, at 409-410.  
[28] The language of the Pension Commission in Hospitals of Ontario Pension Plan, C-001500,  
November 22, 1990, PCO, XDEC-05, PCO Bulletin 1/4 (December 1990), affirmed in Re  
Canadian Union of Public Employees et al. and Ontario Hospital Association; Superintendent  
of Pensions, Intervenant (1992), 91 D.L.R. (4th) 436 (Div. Ct.) (“HOOPP”) is instructive, even  
though the section involved was a different one, s. 89 (2). The Pension Commission said as  
follows:  
a.) the legislature must have intended fair play for both sides in a pension dispute,  
and it would be inequitable for one side to have a full right to a hearing by the  
pension tribunal when the other side, having received the opposite proposal or  
order from the Superintendent, could only apply for judicial review;  
In affirming the decision, the Divisional Court said, inter alia:  
It is not reasonable, in our opinion, to think that a decision to refuse to issue an  
order requested under s. 88 [now s. 87] should be treated any differently, for the  
purposes of s. 90(6) (now s. 89(6)], than one to make such an order. In the first case,  
those interested and in disagreement with the decision would have to live with it,  
while in the second, they would have access to the Commission by way of an appeal  
and the power it possesses under s. 90(9) [now s. 89(9)]. See HOOPP (Div. Ct.) at p.  
441. [Our emphasis.]  
[…]  
[30] In Pension Plan for Salaried Employees of McDonnell Douglas Canada Ltd., No. 520593,  
May 25, 1998, PCO, XDEC-38, affirmed in Maynard v. Ontario (Superintendent of  
Pensions) (2002), 23 C.C.P.B. 145 (Div. Ct.), at p. 146 147. the Divisional Court said:  
In our view, it would be contrary to the purpose of the legislation to say that where  
the superintendent proposes to make an order under 89(5) requiring, for example,  
the wind up of a pension plan, and in which circumstances, the statute specifically  
states notices to be served on the administrator of the plan and the employer, who  
are then entitled to a hearing, that there is no corresponding right to a group of  
employees who have asked that such an order be made and the superintendent  
refuses to make such an order. In our view, the reasoning in [HOOPP] is apposite to  
the case at bar. [Emphasis added.]  
Page 30 of 63  
[31] Notably, at that time, notwithstanding amendments, s. 89(5) expressly provided a  
hearing only where the Superintendent had proposed to order a wind up or a partial wind  
up.  
[32] In Pension Plan for Hospital Employees of the Sisters of St. Joseph for the Diocese of  
Toronto in Upper Canada (PN 302851) May 28, 1998, XDEC-39, a case dealing with mergers,  
the Pension Commission held that there was an implied right to a hearing for employees. The  
Commission relied heavily on HOOPP. It accepted the reasoning in HOOPP that the phrase  
“proposes to make an order” includes a proposal to refuse to make an order.  
[33] The company, understandably, has not been able to find any support for its position in  
the case law dealing with s. 89. Although the cases cited by the appellants are not on all  
fours with the case at bar, the sentiments expressed by the Tribunals and the courts on the  
need for a fair process, that is, a right of review for both parties, run through all of the  
cases.  
67. These cases readily establish that I owed a high duty of fairness to the Plan members and  
former members when making my registration decision regarding Amendment P-23.  
Similar to what the Nova Scotia Superior Court found regarding the Nova Scotia pension  
legislation in Hawker, the regulatory frameworks and objectives encompassed within the  
Pension Benefits Act of Ontario and the PBA are highly aligned. As I mentioned in  
paragraphs 33 and 34 of the Written Reasons, the PBA contains numerous provisions  
aimed at protecting plan members and former members, with the Superintendent being  
assigned primary responsibility for ensuring those protections are realized. The potential  
harm to the rights and interests of plan members and former members if a plan  
amendment does not comply with the PBA, for instance where it results in a reduction in  
accrued benefits, is significant.  
68. These cases also establish that the common law duty of procedural fairness owed by the  
pension regulator is layered overtop any general and specific duties found in the pension  
benefits legislation, and will supplement the procedural requirements beyond what is set  
out in the legislation. In addition, based on the decision in Baxter, there is a presumption  
that the procedural rights owed to employers and to plan members and former members  
under the PBA are intended to be symmetrical and balanced where both have vested  
interests in the regulatory decision. Further, in order to displace that presumption, clear  
and unambiguous language to that effect in the PBA is required. On this last point,  
reference must be made to the decisions of the Supreme Court of Canada in Knight and  
Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing  
Branch) [2001], 2 SCR 781 (“Ocean Port”), as well as to the decision of the Saskatchewan  
Court of Appeal in South East Cornerstone School Division No. 209 v. Oberg, 2021 SKCA 28  
(“Oberg”). Those decisions all emphasize that where legislation is silent with respect to  
the procedure to befollowed by administrative decision-makers, there is a presumption  
Page 31 of 63  
that the legislature intended for the duty of procedural fairness to apply and clear language to  
the contrary or necessary implication is required in order to rebut that presumption.  
69. It is against this backdrop that I now turn to the issues raised in this reconsideration  
decision.  
Issues:  
a. Was the Notice of Decision a final, perfected decision sufficient to engage the  
doctrine of functus officio?  
b. Was the Notice of Decision a nullity due to a jurisdictional error or a failure to  
comply with the duty of procedural fairness, rendering it an exception to the  
doctrine of functus officio?  
c. Are there indications in the PBA that a plan amendment registration decision can  
be reopened in order to enable the Superintendent to discharge the function  
committed to the Superintendent by the PBA?  
I.  
Was the Notice of Decision a final, perfected decision sufficient to engage the  
doctrine of functus officio?  
70. As CCRL notes in the Notice of Objection, in order to attract the doctrine of functus officio,  
a decision must be a final decision. In paragraphs 20 and 21 of the Notice of Objection,  
CCRL posits:  
20. A decision is final when the adjudicator has done everything necessary to perfect the  
decision….  
21. The PBA does not stipulate any additional or further steps needed for the Superintendent  
to register an amendment. Thus, the notice of registration issued pursuant to s. 17(3)  
signals a final and definitive decision by the Superintendent to register the amendment.  
71. The LH Submission did not speak expressly to this point.  
72. On first blush, CCRL’s argument is compelling. The Notice of Decision stated that I had  
“decided to register” Amendment P-23. Later that same day, staff in my office in fact  
caused Amendment P-23 to be noted as registered in the digital licensing and registration  
system utilized by our office to record registrations. The registration system is not  
designed to allow my office to unilaterally sever a portion of an amendment for  
registration purposes. In these types of situations, in order to ensure our registration in  
the system reflects the true scope of the amendment that is registered, my office would  
normally inform the administrator who filed the amendment that part of the amendment  
cannot be registered and ask the administrator to submit a revised amendment for  
Page 32 of 63  
registration. Typically, this communication with the administrator would be informal,  
occur outside of the system and before the amendment is registered, in order to avoid the  
complexities associated with routing everything through the system. In this case, I  
ultimately did indicate in the conclusion of the Written Reasons that CCRL would need to  
revise Amendment P-23 in accordance with my decision in the Written Reasons.  
73. All of the case authorities provided by CCRL and LH on the application of functus officio to  
administrative decision-makers involved very different facts from those before me on this  
reconsideration decision. In our situation, the Notice of Decision consisted of only a bare  
statement that I had decided to register Amendment P-23 with no reasons to support that  
decision or any elaboration whatsoever. It also included an express statement that written  
reasons for my decision would follow shortly. With one exception, all of the cases I have  
reviewed involved a first decision with some reasons to explain the decision and the  
issuance by the decision-maker of a subsequent decision, or subsequent reasons, that  
expanded upon or varied the original decision or original reasons.  
74. The one exception is Fédération canadienne de l'entreprise indépendante (section  
Québec) c. Régie de l'énergie, 2010 QCCS 6658 () ("CFIB"), a decision of the Superior  
Court of Québec. In that case, Hydro-Quebec applied to the Regie de l’energie (“Regie”), a  
multifunctional regulatory body, for approval of supply agreements Hydro-Quebec  
intended to enter into. The statute providing for oversight of Hydro-Quebec by the Regie  
expressly required the Regie to provide reasons for its decision. The Regie ultimately  
made a decision on May 26, 2008, approving the agreements. In the decision, the Regie  
did not provide reasons. The Regie indicated that it was communicating its decision in  
order for the parties to the agreements to rely on them for June 1, 2008, and it would set  
out its reasons subsequently. The Regie issued a second decision on June 5, 2008,  
apparently in response to complaints by the Quebec chapter of the Canadian Federation  
of Independent Business (“QCFIB”) about the failure to provide reasons accompanying  
the May 26th decision. The Regie held in that decision that it was appropriate to issue a  
decision with reasons to follow. On June 12, 2008, the QCFIB applied for judicial review of  
the Regie’s May 26th and June 5th decisions. On June 25, 2008, the Regie gave detailed  
reasons for its May 26th decision.  
75. On the judicial review application, the Court reviewed the case law on the issue of the  
appropriateness of issuing a decision with reasons to follow and concluded that there is  
nothing wrong in principle with the practice. The exception would be where the  
circumstances would lead a reasonable person to view the subsequent reasons as a  
posteriori justification rather than a statement of the reasoning that led to the decision.  
The Court concluded the exception did not apply in the case before it and the fact that  
the Regie issued its decision with reasons to follow did not result in non-compliance with  
the Act provision requiring the Regie to give reasons for its decision. The Court then dealt  
with another argument advanced by the QCFIB, namely that the Regie could not issue the  
June 25th reasons as it was functus officio after making its May 26th “reasons to follow”  
decision. In support of this argument, the QCFIB cited the Jacobs decision of the Ontario  
Page 33 of 63  
Court of Appeal. The Court reviewed Jacobs and concluded that it was distinguishable  
from the case before it. The Court ultimately holds on this point that the doctrine of  
functus officio applies only after the “reasons to follow” have been provided.  
76. The decision in CFIB is the closest on point to our fact situation. Although the Court in CFIB  
distinguished Jacobs, it appears that the commentary in Jacobs influenced the Court’s  
decision on the application of functus officio. It is important to examine the decision in  
Jacobs for this reason. I would also note that in the Notice of Objection, CCRL refers to  
Jacobs for authority that in order for statutory decision-makers to have the ability to  
reconsider their own decisions, the governing statute needs to make that clear. While  
Jacobs does indeed include a statement to that effect, the more important aspect of the  
decision for our purposes here is the aspect focusing on when an administrative decision is  
to be considered final such that the doctrine of functus officio is engaged.  
77. In Jacobs, the issue before the Ontario Court of Appeal was whether the Ontario Labour  
Relations Board (“OLRB”) was without jurisdiction when it purported to issue  
supplementary reasons to an earlier decision in which brief reasons were provided. The  
OLRB issued the supplementary reasons at the request of the successful party. There was  
a clear suggestion in the decision of the Court of Appeal that the successful party made  
the request to the OLRB for additional reasons because the original reasons provided  
would, if challenged by the unsuccessful party, likely be found to be insufficient and result  
in the OLRB decision being overturned. It’s clear from these facts that, like the Court held  
in CFIB, Jacobs is readily distinguishable from our present situation. However, while it was  
not the case before her, Justice Epstein, speaking for the majority in Jacobs, turns her  
mind to the situation where a decision-maker mentions in the initial decision that further  
reasons would be provided.  
78. In addressing why she disagreed with the Divisional Court’s support for the OLRB’s issuing  
supplementary reasons on the premise that it is more time and cost effective to allow a  
tribunal to correct its own error rather than wait for a court to correct it on judicial review,  
Justice Epstein states at paragraph 49 of the decision:  
[49] This argument is convincing insofar as it provides normative support for a tribunal's  
reconsideration power. However, I am not persuaded by this rationale in the circumstances  
here, where the Board has issued reasons that are prima facie final and the successful party  
has requested that the Board augment those reasons. Allowing the Board to provide "fuller"  
reasons does not promote efficiency and timeliness; rather, it does the opposite. When a  
tribunal does not announce that further reasons are to come, it is fair for the parties to  
assume that the reasons issued are final and to arrange their affairs accordingly, including  
deciding whether and on what grounds to seek judicial review. Leaving a decision open to  
supplementary reasons invites the unnecessary consumption of resources and avoids finality  
-- consequences that are hardly consistent with the objective of the expeditious resolution of  
workplace disputes.  
Page 34 of 63  
[emphasis added]  
79. Justice Epstein also explains why she disagreed with the Divisional Court where it found  
that based on earlier Divisional Court decisions, including in I.B.E.W. Local 1739 v. I.B.E.W.  
(2007), 86 O.R. (3d) 508 (“IBEW 1739”), the OLRB had the authority to provide  
supplementary, clarifying reasons despite the doctrine of functus officio. She says,  
beginning at paragraph 59 of the decision:  
[59] In IBEW 1739, the Divisional Court was critical of an applicant in a judicial review  
application who attacked the adequacy of the Board's reasons without first asking the Board  
for further reasons or asking for a reconsideration pursuant to s. 114(1). In that case, the  
Board had issued brief written reasons and stated that further reasons might follow. The  
vice chair also noted that he "remained seized to deal with any difficulties in implementing  
this award": para. 33. The union then sought judicial review on the basis of, among other  
things, insufficiency of reasons. The Divisional Court noted that in the interests of achieving  
its labour relations objectives, the Board is often required to give "bottom line" decisions and  
to release reasons quickly after expedited proceedings. The court also noted [at para. 83]  
that "where one of the parties is unsatisfied with either the result or the reasoning, it has a  
legislated right to ask for reconsideration as expressly contemplated in s. 114(1) of the Act".  
[60] The decision in IBEW 1739 is of no assistance for the simple reason that in the instant  
case the Board did not remain seized to give further reasons. When an arbitrator or  
tribunal remains seized of an issue, the doctrine of functus officio, by definition, does not  
apply. Black's Law Dictionary, 7th ed., defines "functus officio" as being "without further  
authority or legal competence because the duties and functions of the original commission  
have been fully accomplished". Retaining jurisdiction over an aspect of a case is generally  
acceptable only where that aspect has not been fully addressed; a tribunal cannot  
arbitrarily reserve for itself extended jurisdiction over a completed aspect of a case. It is  
important to note that the inquiry as to when a tribunal has completed its commission  
must be contextual: "[t]he nature of the mandate of an agency is important in determining  
whether an agency has the authority to reserve jurisdiction on a matter in issuing a  
decision": Macaulay and Sprague, at p. 27A-36.  
[61] In IBEW 1739, the immediate need for a resolution necessitated an expedited procedure  
and prompted the vice chair to reserve jurisdiction to provide fuller reasons in the future.  
In this case, jurisdiction to revisit the reasons was neither reserved nor warranted.  
[emphasis added]  
80. I understand Justice Epstein to be saying in these paragraphs that where a decision-maker  
announces its decision and states that reasons, or further reasons, will follow such that  
the parties would not expect that they have received the final reasons for the decision,  
functus officio does not yet apply. The rationale for this principle being that the decision-  
maker has reserved or remains seized of jurisdiction in the matter to issue the reasons. In  
Page 35 of 63  
other words, the matter was not fully completed. I think this must generally be the case,  
as it is a common practice of some courts and other decision-makers to issue decisions  
and indicate that reasons will follow. This was noted by the Court in CFIB. If the issuing of a  
bare decision without accompanying reasons were to, without exception, fully exhaust the  
decision-maker’s jurisdiction notwithstanding it promised at the time the decision was  
issued that reasons would follow, all of these decision-makers would be functus and  
without jurisdiction to provide the promised reasons.  
81. Based on the decision in CFIB and Justice Epstein’s comments on this point in Jacobs, in  
our case the Notice of Decision was not a final decision sufficient to attract the application  
of functus officio, for I stated unequivocally that written reasons for my decision would  
follow. Neither CCRL, LH or any other stakeholder of the Plan would reasonably have  
expected that I had completed my final step in the proceedings by issuing the Notice of  
Decision.  
82. I will pause here to note that, unlike in Jacobs, the Divisional Court in IBEW 1739 makes it  
clear at paragraph 78 of the decision that the Act governing the OLRB, as it existed then,  
did not require the OLRB to provide reasons for its decisions. The Divisional Court did find,  
however, that the OLRB was required to provide reasons as a result of the common law  
duty of procedural fairness.  
83. It is true that in Chandler and in decisions following it reference is made to the principle  
that decision-makers cannot defeat functus officio by purporting to reserve jurisdiction to  
revisit their decision. Clearly, that makes perfect sense to avoid the mischief that would  
arise if tribunals could so easily defeat the doctrine and its valid objectives merely by  
adding a reservation of jurisdiction at the end of every decision. But in those cases where  
this principle is raised, unlike our situation here and that in CFIB, the decision-maker had  
purported to issue final reasons or otherwise completed its final step in the matter. There  
was no jurisdiction left to reserve.  
84. Before leaving Jacobs, there is a related principle identified in that decision that I find  
highly persuasive and applicable to this case. The ratio decedendi of Justice Epstein’s  
decision in Jacobs is that, based on the very specific wording in the legislation governing  
the OLRB, the OLRB had wide authority to reconsider a decision, but did not have  
authority to revisit and supplement the reasons separate and apart from reconsidering the  
decision. As Justice Epstein’s decision on this aspect turned on the specific wording of the  
legislation before the Court in that case and, because in our situation the issue is not one  
of supplementary reasons, Jacobs is again readily distinguishable from the situation before  
us. However, Justice Epstein says beginning at paragraph 28 of the decision:  
[28] As a preliminary matter, I start with the Board's duty to provide reasons.  
Page 36 of 63  
[29] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999]  
S.C.J. No. 39, the Supreme Court established that in certain circumstances the duty of  
procedural fairness will include a requirement that an administrative tribunal provide  
reasons for its decision.  
[…]  
[31] In this case, the decision determined significant rights of the parties and there is a right  
to have the decision reviewed. Furthermore, the process used was very much like a court  
process. The Board, like the courts, has a body of jurisprudence, regularly refers back to its  
own decisions and has its own official reporter series. In my view, it is therefore within the  
parties' reasonable expectations that they will receive reasons. These observations support  
the conclusion that the Board is obliged to provide reasons.  
[…]  
[38] As previously indicated, the Baker analysis leads me to conclude that reasons must  
accompany every Board decision. In other words, the Board's decisions must be reasoned  
decisions.  
[emphasis added]  
85. I understand the point being made by Justice Epstein in the above paragraphs to be that  
where the legislation granted to the OLRB broad authority to reconsider a ‘decision’, the  
word ‘decision’ was not intended to mean either a decision or the reasons for the decision  
separate and distinct from the other, for the decision and the reasons were inextricably  
tied. This conclusion was based on Justice Epstein’s finding that as a result of the common  
law duty of procedural fairness, as well as on a proper interpretation of the entire Act in  
question, the OLRB was not authorized to issue a decision without reasons.  
86. It appears that CCRL turned its mind to this nuanced point in the Notice of Objection  
where it refers to the wording of subsection 17(3) of the PBA and notes that it does not  
stipulate any further or additional steps needed for the Superintendent to register an  
amendment. CCRL also notes in the Notice of Objection that the PBA does not expressly  
require the Superintendent to provide reasons when making a registration decision  
regarding a plan amendment, other than as set out in subsection 22(1) of the PBA where  
the Superintendent is required to provide written reasons to the administrator where the  
Superintendent decides to refuse to register the amendment. These points are accurate  
and I understand CCRL’s position to be that, because the PBA expressly contemplates  
written reasons are required to be provided for a registration decision in certain  
circumstances, the maxim expressio unius est exclusio alterius dictates that written  
reasons are not required to be provided by the Superintendent in respect of a plan  
amendment registration decision in any other circumstances. Following through on this  
Page 37 of 63  
line of reasoning, as the Notice of Decision was, in CCRL’s view, my final and perfected  
decision in this matter, I was not required to provide reasons as I indicated that I had  
decided to register Amendment P-23 in its entirety.  
87. From a strict statutory interpretation perspective, I view this to be correct to the extent  
that it stands for the proposition that I would not have been required by the PBA to  
provide reasons for my decision if I had decided to register the entirety of Amendment P-  
23. However, I do not believe it goes further than that to dictate that I cannot choose to  
provide reasons where I believe it would be beneficial to the parties or otherwise in the  
public interest. I also do not view CCRL’s reasoning to be sufficient to displace any  
common law duty I might have been under to provide reasons. As noted earlier in this  
decision, the Supreme Court of Canada in Ocean Port and Knight and the Saskatchewan  
Court of Appeal in Oberg emphasize there is a strong presumption that legislators  
intended that statutory decision-makers comply with the duty of procedural fairness and  
express wording or necessary implication is required to rebut that presumption. Regard  
should also be had to the decision of the Saskatchewan Court of Appeal in Euston Capital  
Corp. v. Saskatchewan Financial Services Commission, 2008 SKCA 22, at paragraph 45. In  
Hawker and Baxter, this principle was given effect when it was found that the common  
law duty of procedural fairness owed by the pension regulator to plan members in those  
cases was layered overtop duties set out in the pension benefits legislation.  
88. That leaves the only question remaining on this issue, namely whether the common law  
duty of procedural fairness I owed to the Plan members and former members in making  
my registration decision included a duty to give reasons for my decision. I think it did.  
89. In Baker, the Supreme Court of Canada made it clear that the scope or content of the duty  
of procedural fairness owed in respect of a particular decision is to be determined based  
on the specific facts of the decision being made. As set out in Baker, the criteria that  
should be considered to determine the scope of the duty of procedural fairness owed by a  
statutory decision-maker includes the nature of the decision being made and the process  
followed in making it; the nature of the statutory scheme and the terms of the statute  
pursuant to which the body operates; the importance of the decision to the individuals it  
affects; the legitimate expectations of the person challenging the decision; and the  
choices of procedure made by the agency itself. As is made clear in Baker, these criteria  
are not intended to be an exhaustive list and the single overarching requirement is  
fairness.  
90. Applying the Baker analysis to the specific facts of my registration decision in respect of  
Amendment P-23, I find that the duty of procedural fairness I owed to the Plan members  
and former members included the requirement that I provide reasons for my decision.  
This is based on:  
Page 38 of 63  
a. Aside from the reconsideration process set out in section 22 of the PBA, the PBA  
is silent on the process for administrators, plan members and former members  
to be heard in respect of plan amendment registration decisions pursuant to the  
PBA. In the Written Reasons I described how there are few express procedural  
protections for plan members and former members in the PBA and how the  
Superintendent is charged with ensuring members’ and former members’ rights  
are protected through the Superintendent’s discretionary decision-making role. I  
also explained why a formal hearing process like that of the courts could be  
cumbersome and problematic in the context of some PBA decisions. However,  
the amendment registration process under section 17 of the PBA can in practice  
resemble more formal court proceedings in some respects. While registration  
applications can sometimes be unopposed and widely recognized to be in the  
best interests of all affected parties, that is not always the case. As in our current  
scenario, sometimes members and former members oppose the amendment,  
and sometimes in different respects and on different grounds from one another.  
Also, as in the present case, opposing groups may retain professional advisers to  
assist them to have their perspective prevail, including legal counsel to advocate  
on their behalf and actuaries to provide actuarial evidence. The nature of the  
decision can be simple and straightforward in some situations, and in others,  
such as the present case involving the reduction of an indexation cap for past  
service, it can be very complex. Pension plans and pension plan regulation can be  
difficult subject matter for people who are not involved in the industry to learn  
and understand. The lawyers who practice in this area tend to be specialized and  
actuarial science is a very complex science for laypersons to grasp.  
b. The administrator has a right to require the Superintendent reconsider a  
negative registration decision (s.22), and then a further broad right to appeal to  
the court (s.23). Members and former members, however, have no express right  
to require the Superintendent reconsider a registration decision they are  
opposed to, and have no right of appeal whatsoever in respect of registration  
decisions. Their only potential recourse would be through a judicial review  
application.  
c. Plan amendment registration decisions can be of relatively minor impact to the  
administrator, members and former members, or incredibly significant to all of  
those parties. In the present case, Amendment P-23 made a number of  
amendments aimed at reducing the expense of the Plan to CCRL. As a result of  
Amendment P-23, the remaining members are required to begin contributing a  
percentage of their salary towards the funding of the plan. The amendment  
included in Amendment P-23 that I found contravened the prohibition on  
Page 39 of 63  
reducing accrued benefits was a reduction in the indexation cap for past service  
of active members. That lowering of the indexation cap would have had the  
effect of retroactively altering the annual indexation formula from 75% of the  
Consumer Price Index (CPI) up to a maximum of 5%, to 75% of CPI up to a  
maximum of 2%. As I found in the Written Reasons, while the lowering of the cap  
may not have had an impact in some years, and maybe not even in most years,  
looking at past historical CPI data it was likely to result in lower indexing in some  
years, and the cumulative spread between the two formulas would increase the  
longer the former member lived. Indexing is very important to retirees receiving  
a defined benefit pension as it prevents the retirees’ purchasing power or real  
income from declining as inflation drives prices higher over time. I also view the  
fact that one member opposed to Amendment P-23 retained his own lawyer and  
an actuary to provide evidence demonstrates the importance of the registration  
decision to some members.  
d. The legitimate expectations of the person challenging the decision is another  
factor. While CCRL is challenging my decision as reflected in the Written  
Reasons, what we are considering for our purposes here is what the content of  
the duty of procedural fairness should have been in respect of the Notice of  
Decision. The Notice of Decision was not and would not have been challenged by  
CCRL, as it reflected exactly what CCRL had asked for. It would have been the  
members and former members who opposed Amendment P-23, or portions of it,  
that would have challenged the Notice of Decision. The members and former  
members who opposed registration of Amendment P-23 would have legitimately  
expected that I would provide reasons for the Notice of Decision, because I  
expressly and unequivocally stated in the Notice of Decision that I would do so.  
Further, with respect to my 2019 decision to approve Amendment P-22 to the  
Plan, I issued a notice of decision and indicated in that notice that written  
reasons for my decision would follow. I then provided written reasons several  
weeks after issuing the notice of decision. The members and former members,  
having just gone through the registration process for Amendment P-22, would  
have legitimately expected that I would also provide reasons in respect of the  
Notice of Decision pertaining to Amendment P-23.  
e. The last criteria set out in Baker is the choice of procedure made by the decision-  
maker. I made the choice to announce in the Notice of Decision that written  
reasons would follow. I made the same decision in respect of my 2019 Decision  
regarding the registration of Amendment P-22 to the Plan. As I indicated earlier,  
I do not view it to be appropriate for me to speak to my subjective state of mind  
when I issued the Notice of Decision except as is apparent on the face of the  
record. While I believe there are facts on the face of the record that would be  
Page 40 of 63  
relevant for a decision-maker in my position to take into account in deciding  
whether to give reasons for my registration decision in these circumstances, as it  
is not apparent on the record that I acted on any of these facts, I will not recite  
them here.  
91. As I was under a duty to provide reasons for my registration decision in respect of  
Amendment P-23, in the words of Justice Epstein in Jacobs, my decision had to be a  
‘reasoned decision’. As the Notice of Decision was not a ‘reasoned decision’, I had not fully  
accomplished the ‘duties and functions of my original commission’ by issuing the Notice of  
Decision. As the Notice of Decision was a not a final, perfected decision, functus officio did  
not apply and I had authority to issue the Written Reasons that varied the Notice of  
Decision.  
92. Before leaving this issue, I should comment on CCRL’s position in paragraph 25 of the  
Notice of Objection regarding the impact on the Written Reasons if I was found to be  
functus officio upon issuing the Notice of Decision. CCRL takes the position that, as they  
are of the view I was functus officio and the Written Reasons were an attempt to render a  
new decision, “any portion of” the Written Reasons that is inconsistent with the Notice of  
Decision is void and of no effect. As I understand the doctrine of functus officio, once a  
decision-maker is functus, they have no authority to do anything further in respect of the  
matter. In that case, the entire Written Reasons would be void and of no effect, not just  
portions of the Written Reasons. I have not come across a case on functus officio where  
only portions of the subsequent decision or reasons were found invalid and the remaining  
portions valid. It was logical for CCRL to take the position that only portions of the Written  
Reasons were invalid, because if the entirety of the Written Reasons were found to be  
void and of no effect, the Notice of Decision would, based on my finding here, be subject  
to successful challenge by the members and former members opposed to Amendment P-  
23 for a failure to provide reasons.  
93. As I have found that the Notice of Decision was not a final, perfected decision capable of  
attracting the doctrine of functus officio, I need go no further to consider the exceptions to  
the doctrine identified in Chandler. However, in case I am wrong in my conclusion that the  
Notice of Decision was not a final decision, I will proceed to consider the Chandler  
exceptions.  
II. Was the Notice of Decision a nullity due to a jurisdictional error, rendering it an  
exception to the doctrine of functus officio?  
94. Where a decision-maker makes a final decision that is rendered a nullity due to  
jurisdictional error, the doctrine of functus officio does not apply to prevent the decision-  
Page 41 of 63  
maker from correcting the error and deciding the matter again. This much is clear from  
Chandler and the cases that have followed Chandler. One such case, Powell Estate v.  
British Columbia (Workers Compensation Board) 2001 BCSC 1661, affirmed at 2003 BCCA  
470 (“Powell Estate”), was cited in the LH Submission. The ambiguity that has arisen in the  
court decisions considering this issue following Chandler has to do with the type of error  
that constitutes a jurisdictional error for the purposes of applying this exception to the  
functus officio doctrine.  
95. The point of debate stems in large part from the Supreme Court of Canada decision in  
Dunsmuir v. New Brunswick 2008 SCC 9 (“Dunsmuir”), the landmark decision resetting the  
approach to determine the standard of review to be applied by a court in reviewing  
decisions of statutory decision-makers. In Dunsmuir, the Court decided that for the  
purposes of determining the applicable standard of review with respect to questions of  
jurisdiction, a distinction had to be made between situations where the error alleged  
relates to a lack of jurisdiction, or “true errors of jurisdiction”, and excess or loss of  
jurisdiction.  
96. Before Dunsmuir, the courts, when considering the effect of privative clauses and the  
ability of the legislatures to shield statutory decision-makers from review by the courts,  
concluded that the legislatures did not have the authority to shield their statutory  
decision-makers from the courts’ supervisory role aimed at ensuring the Constitution is  
adhered to. Errors that resulted in a statutory decision-maker’s decision being beyond its  
jurisdiction were always reviewable by the courts. As the common law developed in this  
area, the concept of jurisdictional error was shaped to include not just errors involving a  
lack of jurisdiction from the outset (true jurisdictional errors), but also errors of a different  
nature that resulted in the statutory decision-maker losing jurisdiction. An example of this  
latter category of errors that commonly arose was patently unreasonable decisions. A  
good summary of this development in the law is provided in Justice Newbury’s decision in  
Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499  
(“Fraser”), at paragraph 25 of the decision.  
97. In Fraser, the British Columbia Court of Appeal tackled head on the issue of the scope of  
jurisdictional errors that give rise to the exception to functus officio described in Chandler.  
In a 3-2 split on this point, the majority found the common law authority to reconsider  
decisions that are a nullity due to jurisdictional error should be limited to situations where  
there has been a true error of jurisdiction. The dissent concluded the concept of true  
errors of jurisdiction discussed in Dunsmuir should be restricted to standard of review  
issues and should not be applied to delineate the scope of the jurisdictional error  
exception to functus officio for statutory decision-makers.  
98. The British Columbia Court of Appeal decision in Fraser was appealed to the Supreme  
Court of Canada: see 2016 SCC 25. In a 6-1 split, the majority of that Court overturned the  
decision of the Court of Appeal, but not on the issue of the scope of the common law right  
Page 42 of 63  
to reconsider decisions as a result of jurisdictional error. The majority noted that the  
parties now agreed with the majority decision of the Court of Appeal on the scope of  
jurisdictional error needed at common law to allow reconsideration and on that basis  
decided not to interfere with the Court of Appeal decision on this aspect. The lone  
dissenting Justice agreed with the majority that the Court of Appeal decision on this point  
should be allowed to stand, however, no explanation was provided for the basis of that  
conclusion. As a result, there is nothing to indicate that the decision of the majority of the  
Court of Appeal in Fraser is not correct on this issue.  
99. In the LH Submission, in relying on the Chandler exception to functus officio where a  
jurisdictional error is made, LH argues that the Notice of Decision included a jurisdictional  
error that authorized me to reconsider it. Fraser was not referred to in the LH Submission  
and LH does not distinguish between true errors of jurisdiction and jurisdictional errors  
resulting from a loss of jurisdiction. I would also note that the facts involved in the Powell  
Estate decision cited in the LH Submission indicate the tribunal made a true error of  
jurisdiction, and as such, it is consistent with the later decision in Fraser.  
100. In the CCRL Reply, CCRL responds by taking the position that any error I may have made in  
the Notice of Decision was a substantive error made within jurisdiction, which would not  
render the Notice of Decision a nullity. CCRL goes on to the argue that it would have been  
reasonable for me to conclude, based on the actuarial evidence submitted by CCRL for the  
purposes of my registration decision, that the lowering of the indexation cap in respect of  
past service was not a reduction of accrued benefits. No reference is made in the CCRL  
Reply to Fraser and no attempt is made to distinguish between ‘true errors of jurisdiction’  
and errors that result in a loss of jurisdiction. However, I glean from the CCRL Reply that its  
position is that any error I may have made in the Notice of Decision was not a true error of  
jurisdiction and was not an unreasonable error in any event. The end result based on this  
reasoning is that the purported decision in the Notice of Decision was within my “true  
jurisdiction” to make and nothing in that decision would have resulted in me losing  
jurisdiction.  
101. Based on Fraser, in order for me to have made a jurisdictional error that authorized me to  
re-decide the registration decision, the Notice of Decision would have to include a true  
error of jurisdiction. The potential error referred to by both LH and CCRL is that the Notice  
of Decision is inferred to include a decision to register the aspect of Amendment P-23 that  
lowers the indexation cap in respect of past service. In order for this to have been a true  
error of jurisdiction, or one in which I lacked the authority to make at the outset, it would  
have to be concluded that I made that decision under the belief that I had authority to  
register an amendment even if I was of the view it reduced accrued benefits. On the other  
hand, if I was aware that I could not register an amendment that I believed reduced  
accrued benefits, but erred in my initial conclusion whether the amendment reduced  
accrued benefits, then that would not be a true error of jurisdiction. Perhaps it would be  
an error that would result in a loss of jurisdiction, but this would not, in light of Fraser, be  
Page 43 of 63  
sufficient to allow me to unshackle myself from the restraints of functus officio and re-  
decide the matter.  
102. CCRL and LH are free to infer why I issued the Notice of Decision and reached the  
conclusion stated in it. As I indicated earlier in this decision, I do not view it to be  
appropriate for me to speak to my subjective state of mind when I issued the Notice of  
Decision that is not otherwise apparent on the face of the record. I do refer to my not  
having jurisdiction to register that aspect of Amendment P-23 in the Written Reasons,  
however, I did not touch expressly on whether a jurisdictional error was made in the  
Notice of Decision nor the scope of any such jurisdictional error. With that said, on the  
face of the record including my decision reflected in the Written Reasons, I am of the view  
that a reasonable person would infer that the error I made in the Notice of Decision was  
not an error of true jurisdiction.  
103. To add to the complexity on this point, there is another aspect of our situation that is  
relevant when considering this issue. In Fraser, Justice Chiasson, speaking for the majority  
on this point, said at paragraph 160 of the decision:  
[160] Historically, as expressed in Chandler and in s. 253.1, subject to a power to correct non-  
substantive mistakes, once an administrative tribunal has done what it was mandated to do,  
its jurisdiction is spent; it is functus officio. Chandler determined that this concept should be  
eased to allow a tribunal to reopen its proceeding in order to complete the task it was  
assigned. It also stands for the proposition that this includes the failure to provide  
procedural fairness because that results essentially in the tribunal not fulfilling its role.  
There is no suggestion that this limited ability to revisit the proceeding permits the tribunal  
essentially to retry the case before it in order to decide whether its decision was  
unreasonable.  
[emphasis added]  
104. I have already found I owed to the Plan members and former members, as part of the  
common law duty of procedural fairness, a duty to provide reasons for the Notice of  
Decision. If that Notice of Decision was a final, perfected decision, I breached that duty of  
fairness owed to Plan members and former members by not providing reasons for the  
decision reflected in the Notice of Decision. Based on the statement of Justice Chiasson in  
Fraser quoted above, my failure to provide procedural fairness would bring the Notice of  
Decision within the common law exception to the functus officio doctrine.  
105. If the issue was that straightforward, then that would be the end of the matter. However,  
this statement by Justice Chiasson was obiter, as the facts in the case before him did not  
involve a breach of procedural fairness. In Chandler, Justice Sopinka’s reference to  
breaches of natural justice as an exception to the application of functus officio was more  
nuanced. At paragraph 81, he said:  
Page 44 of 63  
If the error which renders the decision a nullity is one that taints the whole proceeding,  
then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40  
(H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge)  
(1978), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968] S.C.R.  
330, referred to above, are in this category. They involve a denial of natural justice which  
vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure  
the defect.  
[emphasis added]  
106. If my Notice of Decision was reviewed by a court and I was found to have breached the  
duty of procedural fairness by failing to provide reasons, I am not convinced the Notice of  
Decision would be rendered a nullity on that basis alone. One remedy where a statutory  
decision-maker has failed to give reasons for their decision is for the court to direct the  
statutory decision-maker to provide reasons. It is certainly plausible that a court would  
have viewed that to be the most appropriate remedy in our situation, particularly in light  
of the fact that no reasons whatsoever were given in the Notice of Decision and there are  
no obvious indications of an error on the face of the Notice of Decision alone.  
107. Having considered Chandler and Fraser, I am inclined to find that any error I made in the  
Notice of Decision was not an error of true jurisdiction and my failure to provide reasons  
accompanying the Notice of Decision was not a breach of procedural fairness of a nature  
that it would have vitiated the whole proceeding and bound me to start afresh in order to  
cure the defect.  
108. I am aware that Dunsmuir and the concept of jurisdictional error has been revisited  
recently by the Supreme Court of Canada, resulting in a continued evolution of this area of  
the law (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] SCJ No  
65). Neither CCRL or LH spoke to these developments and there is nothing before me to  
suggest that Fraser, or Chandler for that matter, are no longer leading authorities on the  
specific issue of the scope of jurisdictional error required to engage the common law  
exception to functus officio. Accordingly, I am left to apply Chandler, as elaborated on in  
Fraser, and reach the conclusion that I was not authorized to re-open the Notice of  
Decision and issue the Written Reasons on the ground that an error I made in the Notice  
of Decision was a jurisdictional error or due to the breach of the duty I owed to provide  
reasons for the Notice of Decision.  
III. Are there indications in the PBA that a plan amendment registration decision can be  
reopened in order to enable the Superintendent to discharge the function committed to  
the Superintendent by the PBA?  
Page 45 of 63  
109. As with the functus officio exception for jurisdictional error, the jurisprudence on this  
other functus officio exception set out in Chandler demonstrates the courts have found it  
somewhat challenging to land on a common approach to its application. In the article  
entitled “Doctrine of Functus Officio: the Changing Face of Finality’s Old Guard”, by Anna  
SP Wong, Canadian Bar Review [Vol.98 2020, page 543], Ms. Wong describes the post-  
Chandler jurisprudence in this area as follows beginning at page 562:  
Chandler left a positive legacy, but an ill-defined future for the application of functus officio in  
the administrative arena. In the aftermath of Chandler, lower courts struggled to grapple with  
how to apply the functus doctrine to administrative decision-makers under Chandler’s general  
counsel. Flexible application of a doctrine fixated on finality is not an intuitive exercise. Without  
clear parameters set for its exercise, much would be left to the presiding decision-maker’s  
discretion. It would be all too easy for different decision-makers to reach different conclusions  
as to when flexibility ought to be exercised to provide relief from the preclusion rule. The lack of  
clear direction is an open invitation for differences of opinion.  
As anticipated, there has been no consensus. A survey of post- Chandler judicial  
opinions reveals three distinct streams of jurisprudence. Each spells a different fate for the  
application of functus officio; all have their own complications.  
110. Ms. Wong then goes on to describe the three judicial approaches as: (i) cases where the  
court takes a narrow view of the flexibility described in Chandler and only applies the  
exception where the enabling statute provides express authority to reconsider; (ii) cases  
where the court views there to be a wide latitude to not apply functus officio, limited only  
by express statutory language prohibiting reconsideration; and (iii) cases where the degree  
of flexibility afforded is tied to the nature of the decision, with less flexibility to reconsider  
afforded where the decision is more on the adjudicative end of the spectrum and more  
flexibility afforded if the decision is more administrative in nature. Ms. Wong concludes  
her article with a plea for the courts to consider adoption of a flexible and pragmatic test  
for applying functus officio to administrative decisions similar to the test for its doctrinal  
cousin, issue estoppel.  
111. While these divergent approaches referred to by Ms. Wong are borne out to a degree in  
the cases cited to me by CCRL and LH, I do not view it appropriate for me to break from  
the courts and establish an entirely new test for the application of functus officio to  
statutory decision-makers. Fortunately, I see the beginnings of a jurisprudential path  
through the confusion taking hold.  
112. The line of cases that tend to be cited as standing for the proposition that the Chandler  
flexibility is to be applied narrowly, and only where there is express authority in the  
enabling statute, predominantly come from citizenship and immigration decisions out of  
the federal courts and a couple decisions out of the Ontario Court of Appeal. CCRL cited in  
the Notice of Objection the decision of the Federal Court in Dumbrava. In that decision,  
the Court does indeed conclude that as the decision-maker received its authority from  
statute, that any power to reconsider had to be found there as well. In the decision of the  
Page 46 of 63  
Ontario Court of Appeal in Stanley v. Office of the Independent Police Review Director,  
2020 ONCA 252 (“Stanley”), the Court expressly rejects the principle that more flexibility  
to reconsider decisions should be afforded to non-adjudicative decision makers due to the  
nature of the decision-making process. In reviewing the enabling statute to determine if  
the decision-maker had the authority to reconsider their decision, the Court in Stanley  
appears to focus on express authority.  
113. I question whether Stanley should be understood to be making an unequivocal statement  
that the authority to reconsider must be through an express grant of power. An absolute  
statement to that effect seems inconsistent with Chandler to me. If only an express  
statutory grant of authority to reconsider will suffice, it seems to me that there is no  
difference in the application of functus officio between courts and administrative-decision-  
makers. If that is the case, it is hard to give Justice Sopinka’s decision in Chandler any  
meaning. It would also run contrary to the Supreme Court of Canada’s decision in Grillas v.  
Minister of Manpower and Immigration, [1972] S.C.R. 577 (“Grillas”), which appears to  
have been one of the primary influences behind Justice Sopinka’s decision in Chandler. In  
Grillas, the statutory decision-maker had a broad statutory authority to reconsider a  
deportation decision on what the majority decision on this point describes as “equitable”  
grounds. Pursuant to the enabling statute, this “equitable” jurisdiction to reconsider  
became operative after the decision-maker dismissed an appeal from the deportation  
order. On the facts before the Court, the decision-maker reconsidered the deportation  
order pursuant to this “equitable” jurisdiction and refused to interfere with the order.  
Subsequently, the decision-maker was presented with new evidence and asked, and did,  
reconsider the deportation order again on these same “equitable” grounds. The majority  
concluded it was appropriate for the decision-maker to do so. This was the case even  
though the express statutory grant of power to reconsider on these “equitable” grounds  
did not speak to such reconsideration authority being exercised more than once. With that  
said, precisely what Stanley stands for on this issue is not something I need to ascertain at  
this time for the reasons I will describe below.  
114. The federal citizenship and immigration decisions are also where some of the cases  
standing for the other two approaches identified by Ms. Wong originate. One example is  
Chan v. Canada (Minister of Citizenship & Immigration), 136 DLR (4th) 433 (“Chan”), which  
was cited by Ms. Wong. Another such case cited by Ms. Wong was Kurukkal v. Canada  
(Minister of Citizenship & Immigration), 2010 FCA 230 (“Kurukkal”). Kurukkal was also  
cited to me by LH in the LH Submission. It is my view the Kurukkal decision of the Federal  
Court of Appeal overtakes Dumbrava and clarifies the approach in the federal courts on  
this issue. I reach this conclusion due to the fact the Court in the trial decision of Kurukkal  
(2009 FC 695) reviewed the conflicting cases that preceded it on this issue, including  
Dumbrava, and expressly adopted a functional and pragmatic test to determine whether  
an administrative decision-maker has the authority to reconsider a decision. On appeal,  
the unanimous Court of Appeal stated beginning in paragraph 3 of the decision:  
Page 47 of 63  
[3] We agree with the judge that the principle of functus officio does not strictly apply in  
non-adjudicative administrative proceedings and that, in appropriate circumstances,  
discretion does exist to enable an administrative decision-maker to reconsider his or her  
decision. The Minister and the Intervener agreed in this regard on this appeal (Minister’s  
memorandum of fact and law at paragraphs 1, 24-26; Intervener’s memorandum of fact and  
law at paragraphs 24, 25, 33, 36, 47). However, in our view, a definitive list of the specific  
circumstances in which a decision-maker has such discretion to reconsider is neither  
necessary nor advisable.  
[4] In this case, the decision-maker failed to recognize the existence of any discretion.  
Therein lay the error. The immigration officer was not barred from reconsidering the decision  
on the basis of functus officio and was free to exercise discretion to reconsider, or refuse to  
reconsider, the respondent’s request.  
[emphasis added]  
115. While the Federal Court of Appeal in Kurukkal declined to adopt the trial judge’s proposed  
functional and pragmatic test for determining whether administrative decision-makers  
have authority to reconsider their decisions, its ultimate conclusion is not reconcilable  
with the holding in Dumbrava that an express grant of power is required. This is clearly the  
case as there was no express grant of authority to reconsider the decision in the facts  
before the Court in Kurukkal.  
116. In Stanley, the Ontario Court of Appeal refers to aspects of Justice Epstein’s decision in  
Jacobs to buttress its rationale. Jacobs was an appeal from a labour relations board  
decision, which falls fairly far on the adjudicative end of the spectrum. In Stanley, the  
decision in issue was an investigation conclusion reached by the Office of the Independent  
Police Review Director (“OIPRD”) pursuant to the Police Services Act (Ontario). The  
investigation decision of the OIPRD was not a final decision in the public complaints  
process in respect of the police, it was an intermediate screening decision that determined  
whether the complaint was prima facie substantiated and, if so, the manner in which the  
complaint would proceed to be resolved. Nonetheless, the decision had the potential to  
result in very serious personal consequences to the police officer(s) being investigated.  
The complainants were members of the public who alleged mistreatment by the police  
officer(s) that were the subject of the investigation. The investigation was formal and  
serious. It resulted in a 118-page report containing a thorough review of the evidence of  
the complainants, civilian witnesses and 19 police officers. While the nature of the  
statutory decision involved in Stanley had been described in earlier Ontario cases as  
investigative as opposed to adjudicative, at the very least it did not resemble the plan  
amendment registration decision I was tasked with making pursuant to section 17 of the  
PBA. The decisions in Jacobs and Stanley are distinguishable from our present situation.  
117. In any event, I am a statutory decision-maker in respect of an Act enacted by the  
Legislature of Saskatchewan, and as such, I must ascertain what the law is in  
Saskatchewan in this regard. While CCRL and LH did not refer any Saskatchewan cases to  
Page 48 of 63  
me, I did come across a recent Saskatchewan decision that provides some degree of clarity  
on the position of the Saskatchewan Courts on this issue.  
118. The Saskatchewan Court of Queen’s Bench decision in Jordan v. Sears, 2021 SKQB 6  
(“Jordan”), involved an appeal to the Court by tenants from a decision of the Office of  
Residential Tenancies (“ORT”). At the centre of the case was a dispute between the  
tenants and their landlord regarding damages to the rental unit and the release of the  
tenants’ security deposit. After a hearing of the matter, a hearing officer of the ORT issued  
a decision on December 31, 2019, awarding damages to the landlord and ordering the  
release of the security deposit to the tenants (the “2019 ORT Decision”). The aspect  
regarding the release of the security deposit turned on a provision of the governing Act  
which required the landlord to provide notice to the tenant of the landlord’s intention to  
retain some or all of the security deposit within seven business days of the landlord  
becoming aware the tenant vacated the premises. As was subsequently admitted by the  
ORT, this aspect of the 2019 ORT Decision contained an error in its conclusion that the  
required notice was not provided by the landlord due to a failure by the hearing officer to  
correctly count the number of business days of notice provided. The landlord requested  
that the hearing be reopened. On January 21, 2020, the Director of the ORT wrote to the  
parties advising that “the hearing will be re-opened for the purpose of determining  
whether the previous decision is possibly in contravention of the Act or its regulations.”  
The second hearing, before a new hearing officer, proceeded on February 10, 2020.  
Contrary to the Director’s January 21st letter, the second hearing officer did not focus on  
whether the first decision was wrong or in contravention of the Act or its regulations. The  
second hearing officer treated the second hearing as essentially a fresh hearing. The  
second hearing officer rendered a decision on March 31, 2020, in which different  
credibility findings were made from those in the December 31st decision and an award of  
much larger damages was made in favour of the landlord (the “2020 ORT Decision”).  
119. Justice Elson identified the true issue before him to be whether the ORT was functus  
officio by the 2019 ORT Decision. Justice Elson reviews Chandler and states beginning at  
paragraph 29 of his decision:  
[29] Based on the authority in Chandler, it seems to me that the principle of functus officio  
cannot be summarily dismissed for decisions of statutory entities, such as the ORT. The  
principle applies but it does so in a more flexible and less formalistic way than would be the  
case for judgments and orders of a court. The measure of flexibility allowed is informed by  
the entity’s enabling statute. In short, the lesson from Chandler is that one must: (1) assess  
the scope of any permitted appeal from the decision; and (2) review the enabling statute  
for indications that a decision can be reopened to permit the entity to complete its  
statutory responsibilities.  
[30] In the present case, I have already noted that the RTA provides for a limited appeal to  
this court from an ORT decision. More specifically, it is limited under s. 72 to questions of law  
or of jurisdiction. Findings of fact, such as may be reflected in credibility assessments by a  
Page 49 of 63  
hearing officer, are not reviewable on appeal. See Reich v Lohse (1994), 117 DLR (4th) 1 (Sask  
CA), and Lansdowne Equity Ventures Ltd. v Cove Communities Inc., 2020 SKQB 113.  
[31] Based on the reasoning in Chandler, this limited right of appeal, standing alone, would  
suggest that the principle of functus officio should not be strictly applied in cases where an  
ORT hearing officer has erred on a finding of fact, from which no appeal is available.  
Accordingly, where the ORT discovers such an error after the decision is issued, it can be  
addressed. As I will discuss later in this judgment, whether the matter can be reheard is an  
entirely different question.  
[emphasis added]  
120. Justice Elson then goes on to consider whether there are any other indications in the  
enabling Act that a decision can be reopened to permit the ORT to complete its statutory  
responsibilities and concludes as follows beginning at paragraph 32 of his decision:  
[32] Aside from the limited right of appeal, the RTA contains at least one other obvious  
indication of flexibility in the application of functus officio. This is found in the remedial  
authority under s. 76 of the RTA. This remedial provision provides jurisdiction for “a hearing  
officer” (emphasis added) to “correct”, “clarify” and “deal with” matters that may require  
further consideration and possible corrective action. A hearing officer may exercise this  
jurisdiction on her/his own initiative or at the request of a party. It is notable, although  
perhaps not in this case, that the matters on which this remedial jurisdiction can be exercised  
are broad. They are not confined to questions of law or jurisdiction. It follows that a hearing  
officer has the authority, under s. 76, to revisit findings of fact and, where justified, clarify or  
even correct a finding.  
[33] I am also persuaded that the flexibility discussed in Chandler has a place in the  
application of s. 76. Giving the provision a purposive construction (as per Re Rizzo & Rizzo  
Shoes Ltd., [1998] 1 SCR 27 at para 21), the Legislature must be taken to have intended s. 76  
to have meaning and that it should not be easily defeated. For example, it should not be  
defeated by the unavailability, for whatever reason, of the hearing officer who authored  
an ORT decision that may be open to a s. 76 review. Where that occurs, the flexibility  
discussed in Chandler calls for the Director or another hearing officer to be assigned for the  
review.  
[emphasis added]  
121. Justice Elson ultimately concludes that, while the ORT could have reopened the 2019 ORT  
Decision to correct the error based on Chandler and the grounds referred to above, the  
ORT was indeed functus officio by the 2019 ORT Decision to the extent that it had no  
authority to rehear the matter afresh.  
122. Based on the Saskatchewan approach as set out in Jordan, in order to determine if functus  
officio prevented me from correcting the error in the Notice of Decision, I need to first  
turn my mind to whether there is a full right of appeal from the Notice of Decision, if it had  
Page 50 of 63  
been my final decision in this matter. I would then need to turn my mind to whether there  
are any other indications in the PBA of flexibility in the application of functus officio to my  
decision.  
123. There is a full right of appeal from a plan amendment registration decision set out in  
section 23 of the PBA, however, it only applies where the registration was refused and  
only the plan administrator is given the right to appeal. Plan members and former  
members have no right whatsoever to appeal a plan amendment registration decision.  
Regardless whether the alleged error in a plan amendment registration was an error of  
fact, law or jurisdiction, Plan members and former members aggrieved by the decision  
would only have judicial review as a potential recourse. This would have been the case  
with the Notice of Decision. On this ground alone, Jordan stands for the principle that, on  
the law as set out in Chandler, I was authorized to correct the error in the Notice of  
Decision.  
124. The next step described in Jordan is to consider whether there are any other indications in  
the PBA that a plan amendment registration decision pursuant to section 17 can be  
reopened to permit the Superintendent to fulfil the Superintendent’s statutory  
responsibilities. Clearly an express grant of power to reopen or reconsider decisions would  
suffice, but as I have already found based on the decisions in Kurukkal and Jordan, an  
express grant of authority is not required. No case authority establishing a complete and  
comprehensive list of criteria has come to my attention. In Kurukkal, the Federal Court of  
Appeal expressly concluded that it would not be advisable to establish such a list. Based  
on this, I am of the view I should be guided by prior court decisions that have identified  
criteria that was found to have constituted an indication that a decision could be  
reopened, as well as by the principles and objectives described in Justice Sopinka’s  
decision in Chandler animating this exception.  
125. The most obvious indication of flexibility in the PBA is the reconsideration provision in  
section 22 pursuant to which I am making this decision. The power to reconsider in that  
provision is very broad, however, it is a one-way street. As CCRL argues in the CCRL Reply,  
the section 22 right to reconsideration only becomes operative in respect of a plan  
amendment registration decision where the Superintendent refuses to register the  
amendment, and only upon the request of the plan administrator. CCRL takes the position  
that there is no statutory authority for the Superintendent to reconsider an amendment  
registration decision in any other circumstance. In terms of an express grant of authority,  
that much is clear on the face of the PBA. However, the issue under this Chandler  
exception to functus officio is whether there is an indication in the enabling statute that  
flexibility should prevail over finality with respect to the decision in question. Clearly  
section 22 is an express statement by the Legislature that flexibility is to prevail over  
finality where an amendment registration is refused. The Legislature wanted the  
Superintendent to have flexibility to best ensure the Superintendent gets the decision  
right. The plan administrator is given a broad right of appeal to the courts, so the right to  
Page 51 of 63  
require the Superintendent to reconsider the decision presumably is to ensure any errors  
subsequently identified could be addressed by the Superintendent in a more expeditious  
and less costly way. Should we interpret from this that the Legislature intended no  
flexibility is to be afforded where the Superintendent makes an error, no matter how  
obvious or harmful to plan members or former members, in deciding to register an  
amendment? That is not my view.  
126. There is another interpretation of section 22 that I find more compelling. In my view,  
section 22 should be viewed not as a grant to the Superintendent of the power to  
reconsider the registration decision, but rather as the grant of a right to the plan  
administrator to require that the Superintendent reconsider the registration decision. In  
other words, the aim of section 22 is to remove the Superintendent’s discretion to refuse  
to reconsider a decision in which the Superintendent rejects registration of a plan  
amendment. I arrive at this interpretation for a couple reasons. One is that it is the only  
interpretation that does not do violence to the principles of presumptive fairness  
applicable to our situation described earlier in this decision. As set out in Knight, Ocean  
Port and Oberg, it should be presumed that legislatures intended their statutory decision-  
makers to follow fair procedures when making decisions that affect the rights of  
individuals. The other fairness presumption comes from Baxter and other Ontario cases  
that, specifically in the pension benefits legislation context, establish that it should be  
presumed the procedural rights of the employers and the plan members and former  
members are intended to be symmetrical and balanced. The courts have been clear that,  
in respect of both presumptions, clear and unambiguous language or necessary  
implication are required to displace these presumptions.  
127. The second reason is that there is very sound rationale why the Legislature would not  
have intended for individual plan members and former members to have a right to require  
the Superintendent to reconsider a decision to register a plan amendment. As I indicated  
in the Written Reasons and earlier in this decision, there can be hundreds or even  
thousands of members and former members in a single plan. As the situations and  
perspectives of individual plan members can vary widely depending on the nature of a  
plan amendment, it is possible not only for there to be differing and even opposing views  
amongst cohorts of members and former members in respect of an amendment, but also  
for there to be differing and opposing views in respect of different aspects of an  
amendment. In our case here, there were members who supported registration of  
Amendment P-23, members and former members such as LH and others who opposed  
registration of the aspect of Amendment P-23 relating to the reduction in the indexation  
cap with respect to past service, and a different former member opposed to registration of  
the aspect in clause 1 of Amendment P-23 pertaining to the retroactive elimination of the  
member right to receive an annuity in lieu of a retirement benefit. If every member and  
former member had an individual right to require the Superintendent to reconsider a  
decision to register an amendment on the grounds of their choosing, it could potentially  
lead to significant unnecessary resource usage for both administrators and the  
Superintendent and severely curtail the expediency and efficiency of the amendment  
Page 52 of 63  
registration process. None of this is inconsistent, however, with the Superintendent having  
a discretion to reconsider a decision to register a plan amendment where the  
Superintendent is of the view it is appropriate to address a potential injustice. Particularly  
where members and former members do not have a right of appeal to the courts. This  
rationale is further supported in my view by the fact that the subject matter can be very  
complex and require special expertise to understand. There is a distinctly unlevel playing  
field between many plan administrators who have access to resources and expertise and  
most plan members and former members who do not. The Superintendent is best  
positioned to assess whether plan member and former member concerns relate to  
legitimate issues. This is why the PBA contains very few express participation rights for  
members and former members and instead relies on a number of provisions aimed at  
protecting members and former members that the Superintendent is assigned  
responsibility to enforce. Based on my interpretation of section 22, I am of the view it  
provides an indication that it was intended that the Superintendent could reopen an  
amendment registration decision in these circumstances.  
128. Subsection 17(1), clause 18(2)(b) and subsections 22(5) and 23(3) of the PBA are further  
indications of the intention that flexibility is to prevail over finality in plan amendment  
registration decisions. Those provisions provide:  
Amendments  
17(1) Where an amendment is made to a plan that is registered or with respect to which an  
application for registration is pending or to any document mentioned in subclauses 16(1)(a)(ii)  
to (v), the administrator shall file a certified copy of the amendment with the superintendent  
within 60 days after the amendment is made.  
Administration pending registration or amendment  
18(1) …  
(2) An administrator shall not administer a plan in a manner that reflects an amendment to it  
unless:  
(a) the amendment is registered; or  
(b) subject to subsections 22(5) and 23(3), the amendment has been duly filed for  
registration and the superintendent has not notified the administrator in writing that  
the superintendent refuses to register the amendment.  
Objection to certain actions of superintendent  
22(1) …  
(5) Where an administrator delivers a notice of objection pursuant to subsection (3), the  
administrator may, notwithstanding the decision of the superintendent mentioned in  
subsection (1), administer the plan in a manner that reflects the amendment or report or  
cost certificate until the matter is dealt with pursuant to subsection (4).  
Appeal to court  
23(1) …  
Page 53 of 63  
(3) Where an administrator serves a notice of motion pursuant to subsection (2), the  
administrator may, notwithstanding the superintendent’s decision, administer the plan in a  
manner that reflects the amendment, actuarial valuation report or cost certificate until the  
court disposes of the matter.  
129. Subsection 17(1) allows an administrator to file an amendment for registration as much as  
60 days after the amendment has been made to the plan. The other provisions cited  
expressly authorize the plan administrator to administer the plan in a manner that reflects  
the amendment even where the amendment has not yet been determined to be in  
compliance with the PBA; or after the Superintendent has determined the amendment is  
not in compliance with the PBA, but has not yet reconsidered that decision; or even after  
the Superintendent has both determined the amendment is not in compliance with the  
PBA and reaffirmed that decision on reconsideration, but the Court has not disposed of  
the appeal of that decision. In any of those scenarios, if the final answer by the  
Superintendent or the Court, as the case may be, is that the amendment should not be  
registered, the administrator will have to unwind any effects or outcomes due to the  
amendment that occurred during the period when the plan was being administered as if  
the amendment was registered. It is important to note that the PBA provides no timelines  
within which the Superintendent is required to issue a registration decision or  
reconsideration decision, nor are there timelines imposed for the Court to make its  
decision on an appeal. Several months could pass in the intervening period. Clearly then,  
the Legislature was not of the view that absolute finality was imperative. If the Legislature  
believed that irreparable harm would befall an administrator if it had to unwind an  
amendment registration decision, it would not have included those provisions in the PBA.  
These provisions are a clear statement of legislative intention that plan amendment  
registration decisions are capable of being unwound and should be if they are ultimately  
found to be not in compliance with the PBA.  
130. Another indication in the PBA that functus officio should not strictly apply to plan  
amendment registration decisions is the fact that the decision-making process set out in  
section 17 is administrative in nature and not a formal adjudicative proceeding. As noted  
by Ms. Wong in her article, there is a line of cases that suggest that functus officio does  
not apply to non-adjudicative decisions solely based on that fact alone. In addition to the  
Chan case cited by Ms. Wong, the decision in Saskatchewan Wheat Pool v. Canadian Grain  
Commission, 2004 FC 1307 () is another example of this position. On the other hand,  
as mentioned above, the Ontario Court of Appeal expressly rejects this position in Stanley.  
While it is far from clear, the weight of authorities leads me to the view that the informal  
administrative nature of a decision is a criterion to be considered, but not determinative  
on its own. This appears to be the position of the Federal Court of Appeal in Kurukkal. I  
should also note that Jordan is unhelpful here as it was silent on this point. Perhaps that  
was because the type of statutory decision involved in that case was on the formal  
adjudication side of the spectrum, involving a tripartite, adversarial hearing in which  
credibility findings can play a significant role. It seems to me there is compelling logic that  
justifies treating administrative decisions differently than formal adjudicative decisions for  
Page 54 of 63  
the purposes of the application of functus officio. As Justice Sopinka noted in Chandler, the  
main rationale behind functus officio applying to the decisions of statutory decision-  
makers is the benefit of finality of proceedings. A key aspect of this is that if a final  
decision can be readily reopened, the persons affected by the decision and the broader  
public may view the decision-making process as arbitrary and unfair, and could lead to a  
loss of confidence in the decisions and the institutions making those decisions. The fact  
that the statutory decision that was reopened was the result of a formal adjudicative  
process following procedures akin to those of the courts would most likely exacerbate  
those views and the loss of confidence.  
131. Section 17 doesn’t even contemplate a hearing before the initial registration decision is  
made. Section 22 does build in some formal process after the decision is made as a check  
on the decision, but only in limited circumstances. This informal approach makes sense  
from the standpoint that in some cases, a plan amendment could be clearly beneficial to,  
and supported by, all stakeholders of the plan. If that is the case, then any formal  
adjudication procedures would be unnecessary and inefficient. It is true that, like in our  
situation here, plan amendment registration decisions can be contested depending on the  
nature and circumstances of the amendment. In those cases, as I have already found  
earlier in this decision, the common law duty of procedural fairness kicks in to ensure a  
process is followed that is fair to all. However, those ‘fair procedures’ do not have to  
match the level of rigour and formality that is employed by the courts. In our case here,  
Plan members and former members were provided notice that the amendment was filed  
for registration and the opportunity to send me written submissions expressing their view.  
It is my view that the fact that the amendment registration process set out in the PBA is  
much closer to the informal administrative decision end of the spectrum and does not  
establish a formal adjudicative process is an indication that, in respect of these decisions,  
flexibility is to prevail over finality.  
132. Another indication in the PBA that flexibility prevails over finality with respect to  
registration decisions is found in subsections 21(1) and (2). Those subsections provide:  
Cancellation of registration  
21(1) The superintendent may cancel the registration of a plan:  
(a) that does not comply with this Act; or  
(b) with respect to which the administrator has not complied with this Act or the plan.  
(2) The cancellation of registration of a plan pursuant to subsection (1) takes effect from the  
day, not earlier than the day on which that non-compliance occurred or commenced,  
specified by the superintendent…  
133. When reading this provision it is important to keep in mind that, subject to the limited  
time allowances described above in paragraphs 128 and 129, the PBA contemplates that  
every plan and every plan amendment must be registered by the Superintendent (sections  
16 and 17). Not only that, pursuant to these provisions the Superintendent can only  
Page 55 of 63