May 25, 2007

Pension Trial Bulletin no. 5

Pension surplus trial concluded:
judge's verdict expected in six months

Final arguments began in the pension surplus case on May 1, 2007. They were originally expected to last from one to two weeks. However they were finished in no more than three days. Now that the court proceedings are over, Justice Panet will look through information from 18 days of trial that have involved 10 witnesses and close to 60 exhibits. One of these exhibits corresponds to the group of the 128 internal government documents that Justice Panet ruled on December 23, 2005 would be admitted into evidence. It has been estimated that Justice Panet will provide his verdict in the fall of 2007, roughly in six months time.

The parties did not meet in court from April 2, 2007, when the last of the witnesses were examined, to May 1. During this lag period, lawyers on both sides completed their respective written submissions, which were due on April 11 and April 20 for the plaintiffs and Crown, respectively. Both parties had to submit reply-reports by April 27.

The 210-page plaintiffs' lawyers' written submissions offer very solid evidence in support of their claim.

The Crown lawyers claimed that there are no real assets in the superannuation accounts, that they are merely tracking accounts for bookkeeping purposes. The plaintiffs' lawyers gave six different examples supporting the argument that superannuation accounts have real assets. These examples range from internal reports to provisions in the three concerned superannuation acts indicating that Parliament intended the superannuation plans to operate on a full funding basis.

When asked by Justice Panet to clear up the matter of reality of assets, the Crown lawyers stated that the plaintiffs' expert witnesses were solely conveying an opinion that is not a standard in the industry and should not be of much value to the court. They further contended that this case is a question of law, and no one's opinions should be given that much weight in the final decision.

In defending their argument that the government has not breeched any duties it may have with employees, the Crown lawyers stated, “no moneys have ever been taken out of the superannuation accounts”. They also said that the government does not have any fiduciary duties, and even if it did, all debits and credits done in the accounts are done in line with legislation. These arguments were heavily refuted by the plaintiffs' lawyers.

The plaintiffs' lawyers disputed the argument that no funds had been removed from the superannuation accounts by stating that the funds were recorded into the fiscal framework, consisting of the government's anticipated revenues and expenditures. It was confirmed during trial that once any amount of surplus amortization was booked into the fiscal framework, it was effectively spent and could not be used for any other purpose.

One of the Crown lawyers' arguments was that no reference to surplus is made in any the three concerned superannuation acts and the government has not done anything wrong by passing Bill C-78, so there is no real legal issue at stake and this trial is just a “bargaining ploy” by the plaintiffs.

When asked how the employer can, on one hand, claim it is entitled to the surplus and, on the other hand, pretend that the employees are not, the Crown lawyers responded that was not the issue at hand. They claimed that everything the government has done was approved by legislation. They repeatedly argued that members of the Public Service, Canadian Forces and RCMP expect a pension at the end of their working lives; they will receive that pension no matter what the financial situation of the superannuation accounts is, and therefore there is no harm done if they do not have access to the surplus.

One of the plaintiffs' lawyers' main arguments during the final arguments was that the pension plan members have an equitable interest in the funds in the superannuation accounts because the contributions they made to these plans were true money taken from their salaries. All pension contributions were placed into specified purpose accounts designed, and annotated as such, for the specific and exclusive purpose of providing pension benefits to the plan members.

After the trial concluded, Justice Panet addressed both sides complementing them on their hard work, professional behaviour, and prompt responses to any additional queries he raised to them during the trial.