



COURT OF APPEAL
    FOR ONTARIO

CITATION: Bell v. Ontario Power Generation Inc., 2017 ONCA
    587

DATE: 20170710

DOCKET: C61509

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Sylvia Bell

Appellant

and

Ontario Power Generation Inc.

Respondent

Kyle Armagon, for the
    appellant

Frank Cesario and Stephanie
    Kalinowski, for the respondent

Heard: July 5, 2017

On appeal from the judgment of Justice John McCarthy of
    the Superior Court of Justice, dated November 25, 2015.

REASONS FOR DECISION

[1]

At issue in this appeal is the
    nature of the relationship between the appellant and Michael
Shestowsky
in the three years before his retirement
    from the respondents employ.

[2]

Mr. Shestowsky was an employee of the
    respondent. He retired in February 2003 and received a pension until his death
    in May 2011. The pension was calculated in accordance with his representation
    that he did not have an eligible spouse.

[3]

After Mr. Shestowskys death, the
    appellant claimed an entitlement to survivor pension benefits on the basis that
    she was a spouse pursuant to the
Pension Benefits Act
, R.S.O. 1990, c.
    P.8, (the Act) s. 1(1),
which defines spouse as a
    person who, at the date of retirement, has been living together with the
    employee in a conjugal relationship for at least three years.

[4]

The trial judge dismissed the
    appellants claim having concluded that she was not living together with Mr.
    Shestowsky for three years before his retirement.

[5]

She appeals on numerous grounds,
    including on the basis that the trial judge erred by disbelieving the
    uncontradicted evidence that a flood had destroyed cards and photos that
    supported her claim and by finding her evidence and that of her daughter and
    friends unreliable.

[6]

The appellant does not identify
    any error of fact or misapprehension of the evidence. The issues raised
    challenge findings of fact, which are amply supported by the evidence and accorded
    deference from this court.

[7]

The appellant further alleges that
    the trial judge misapplied the law with respect to the nature of a conjugal
    relationship. She says he erred in: (1) relying on a cohabitation agreement
    signed by the parties in 2002; (2) focusing on the subjective intent of Mr.
    Shestowsky; and (3) relying on Mr. Shestowskys pension election form. The
    appellant submits that, by doing so, the trial judge misapplied the law set out
    in
M. v. H.
, [1999] 2 S.C.R. 3, which held that the elements to consider
    as generally accepted characteristics of a conjugal relationship may be present
    to varying degrees and are not all necessary. The approach must be flexible,
    and subjective intent is not required.

[8]

The trial judges reasons, read as
    a whole, disclose a consideration of multiple factors which, taken together,
    led him to conclude that the appellant and the deceased were not living
    together in a conjugal relationship for the three years before the deceaseds
    retirement. The trial judge used the non-exhaustive criteria set out in
Molodowich v. Penttinen
(1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), as a
    guideline. Consistent with the jurisprudence, which confirms an emphasis on the
    objective, contemporaneous evidence, he relied on the following facts:

·

The
    cohabitation agreement signed by the parties in September 2002 stating that the
    parties intend to commence cohabiting
[1]
;

·

Mr.
    Shestowskys change of address notifications in September 2002;

·

The
    respondents letter of December 17, 2002, advising Mr. Shestowsky that his
    pension records showed he had no eligible spouse and inviting him to contact
    the respondent if this information was not correct;

·

The
    pension election form signed by Mr. Shestowsky on January 15, 2003, confirming
    that he had no eligible spouse. By making this election, Mr. Shestowsky
    confirmed that he knew the definition of eligible spouse, and his pension
    entitlement was calculated at a higher rate than if he identified an eligible
    spouse;

·

The
    letter sent by the respondent to Mr. Shestowsky on January 16, 2003 confirming
    the election;

·

Mr.
    Shestowsky received pension benefits until his death and never sought to amend his
    election  despite the fact that, in 2005, he inquired about changing his
    designation to include an eligible spouse. He was provided with the appropriate
    procedure to follow but did not do so; and

·

The
    income tax returns filed by both the appellant and Mr. Shestowsky, which
    indicated divorced until 2002, when it converted to common law.

[9]

It was open to the trial judge to
    rely on this evidence. It fully supported his conclusion that the appellant was
    not an eligible spouse for the purpose of the Act or the pension plan
    administered by the respondent.

[10]

We therefore conclude that the
    appeal must be dismissed. In light of this conclusion, it is not necessary to
    consider the appellants submissions with respect to the trial judges
    alternative finding under s. 45 of the Act
.

[11]

The appeal is dismissed with costs
    payable to the respondent in the amount of $10,000, inclusive of disbursements
    and HST.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.





[1]

The terms of the
    cohabitation agreement also provide for a release of the appellants claims to
    Mr. Shestowskys pension entitlements.


