



COURT OF APPEAL FOR ONTARIO

CITATION:
Shaw v.
    Healthcare of Ontario Pension Plan, 2013 ONCA 102

DATE: 20130215

DOCKET: C55834

Blair, MacFarland and Rouleau JJ.A.

BETWEEN

Gregory Shaw


Applicant (Appellant)

and

Healthcare of Ontario Pension Plan (HOOPP),
    Helen Fetterly, Dan Anderson, Adrian Foster, R. Wayne Gladstone, Marlene
    Puffer, Patty Rout, Deepak Shukla, Joyce Bailey, Ronald Meredith-Jones, Lesley
    Bell, Jon Clark, Julie Giraldi, Martin Parker, Louis Rodrigues, James Sanders,
    Bryce Walker, Kevin Smith, Marlene Izzard in their capacity as Trustees of the
    Healthcare of Ontario Pension Plan, and Ontario Hospital Association

Respondents (Respondents)`

Andrew Hatnay and Demetrios Yokaris, for the appellant

Peter H. Griffin and Emily Graham, for the respondents

Heard: February 15, 2013

On appeal from the judgment of Justice Frank J.C.
    Newbould of the Superior Court of Justice, dated July 2, 2012.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Shaw appeals the decision of Newbould J. dismissing his application
    for a declaration that what the parties referred to as three retention
    bonuses in his amended employment contract with the Ontario Hospital
    Association (OHA) constitute pensionable earnings under s. 2.18 of the Healthcare
    of Ontario Pension Plan (HOOPP). The provisions in his original employment
    contract were considered by OHA to be very favourable to Mr. Shaw if he elected
    to terminate the contract early  an incentive to leave as the OHA put it.
    Mr. Shaw and OHA agree to an amendment that would provide for three extra
    payments to Mr. Shaw designed to provide him with an incentive to stay. They
    were (1) a payment of $100,000 on November 1, 2009; (2) a payment of $150,000
    on October 31, 2010; and (3) a payment of $225,000 on October 21, 2011  a
    total of $475,000. He and OHA apparently viewed these payments as pensionable
    which, if correct, would amount to an increase in Mr. Shaws pension in an
    amount with a present value of $1,275,000.

[2]

The amended control was for a term that expired in October 2011, but
    provided for automatic 1-year renewable terms unless one of the parties
    terminated.

[3]

HOOPP ultimately took the position that the retention bonuses were not
    pensionable earnings.

[4]

Mr Shaw argues that the motion judge erred in concluding that they were
    not, because the payments did not form a regular part of the members
    remuneration. He submits as well that the motion judge erred in considering
    equity issues such as the potential impact of the interpretation on other
    beneficiaries of the plan, in doing so, and, in addition that he failed to
    consider and apply the
contra proferentum
rule of interpretation in
    Mr. Shaws favour.

[5]

We do not accept these submissions. The motion judge considered the
    plain meaning and dictionary definitions of the word regular and concluded in
    the context of the Plan and the factual matrix in which it operates, that the
    three payments did not form a regular part of Mr. Shaws remuneration because
    they were not paid as a rule or usual or customary. They were payable over
    three years only. They did not continue during the automatic renewal terms of
    the contract. There were potential negative implications for the beneficiaries
    and the Plan if payments of that nature were recognized as pensionable
    earnings.

[6]

We see no error on the part of the motion judge in arriving at such a
    conclusion. It was not necessary for him to resort to the
contra
    proferentum
rule because other tools of contractual interpretation enabled
    him to reach his conclusion, notwithstanding any ambiguity that might exist in
    the wording of the Plan. Finally, the absence of the word bonuses in the
    exclusions under s. 2.18 of the Plan is of no moment in our view. The issue was
    whether the retention bonuses were a regular part of the members remuneration,
    and the motion judge concluded they were not.

[7]

Mr. Shaw also appeals the motion judges refusal to award him costs out
    of the Plan in spite of his loss. We would not give effect to this argument.

[8]

Costs may be awarded to an unsuccessful litigant out of a pension plan,
    but such an award is discretionary. The motion judge applied the principles
    laid down by this Court and the Supreme Court of Canada in
Nolan v. Kerry
,
    2007 ONCA 605 (C.A.); [2009] 2 S.C.R. 678 considering whether the proceedings
    were brought (1) to ensure the due administration of the pension plan, and (2)
    for the benefit of all beneficiaries. He concluded that Mr. Saws claim did not
    meet those requirements. We see no error in the exercise of his discretion in
    that regard.

[9]

Accordingly, the appeal regarding the issue of pensionable earnings is
    dismissed. Leave to appeal costs is granted, but the appeal as to costs is
    dismissed.

[10]

The
    motion judge fairly decided not to grant costs to HOOPP in the proceeding
    below. The appeal is a separate step, however, taken in light of the decision
    below. We see no reason why HOOPP should not have its costs of the appeal. Mr.
    Hatnay concedes the amount claimed is not unreasonable. Costs of the appeal are
    therefore fixed in favour of HOOPP in the amount of $18,979.27 inclusive of
    disbursements and HST, on a partial indemnity basis.


