Colby v Interior Lift Truck Services Inc, 2019 ABQB 915

Court of Queen’s Bench of Alberta Citation: Colby v Interior Lift Truck Services Inc, 2019 ABQB 915 Date: 20191202 Docket: 1403 11650 Registry: Edmonton Between: Terry Colby and Scott Chalmers Respondents (Plaintiffs) - and - Interior Lift Truck Services Inc., Leavitt Machinery, GP, Leavitt Machinery and Rentals Inc., The Great West-Life Assurance Company, London Life Insurance Company, Tom Leavitt, Brian Leavitt, and Randy Leavitt Applicants (Defendants) _______________________________________________________ Decision of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________ 1. The Application [ 1 ] The Applicants (Defendants) apply for

Summary Judgment dismissing all claims against them pursuant to Rule 7.3 of the Alberta Rules of Court .

The Statement of Claim [ 2 ] The Statement of Claim was filed on August 12, 2014 and was brought under the Class Proceedings Act , SA 2003 c C-16.5 . [ 3 ] The class is defined as “including all individuals who are or were members of the Leavitt bargaining unit at any time since the date of sale”. [ 4 ] The Action arise in the context of the sale by Finning Canada (“Finning”) of one of its divisions to a series of corporations operating under the Leavitt Machinery General Partnership (“Leavitt”). [ 5 ] The directing minds of Leavitt are Tom Leavitt and Randy Leavitt. [ 6 ] At all material times, the International Association of Machinists and Aerospace Workers Local Lodge 99 (“the Union”) was the certified bargaining agent for employees of Finning and subsequently, employees of Leavitt. [ 7 ] The sale transaction was completed in or around October 2001. [ 8 ] It was agreed that the Finning Collective Bargaining Agreement, including its pension plan provisions, would apply to the Leavitt employees. [ 9 ] Subsequently, Leavitt set up its own pension plan with London Life Insurance Company (“London Life”). [ 10 ] Great West-Life (“GWL”) subsequently purchased London Life and assumed all responsibility for the Leavitt Pension Plan. [ 11 ] For a period of time, Pension Plan funds were used to pay Randy Leavitt a 1% fee as a Pension Plan advisor. [ 12 ] The Statement of Claim advances the following claims: a. claims against Randy Leavitt: i. unjust enrichment pertaining to the payment of the 1% pension advisory fee; ii. breach of duty of care of fiduciary duties owed to the class members; and iii. misrepresentation as to the nature of the Pension Plan; b. claims against the remaining Leavitt Defendants: i. unjust enrichment pertaining to the 1% pension advisory fee paid to Randy Leavitt; ii. breach of duty of care and fiduciary duties owed to the class members; and iii. misrepresentation as to the nature of the Pension Plan; c. claims against GWL and London Life: i.

GWL breached its fiduciary duties to the Plaintiffs by failing to disclose the Retail Fee (defined below) and by collecting the Retail Fee when it knew it was not in the Plaintiffs’ best interest to pay “retail” fees, instead of “group” rates; ii. GWL was unjustly enriched to the extent the Retail Fee exceeds reasonable group managements fees; and iii. GWL breached its obligations to the Plaintiffs by knowingly or negligently allowing the 1% Fee (defined below) to be paid from the Pension Fun Assets (defined below). [ 13 ] The Leavitt Defendants apply for

summary dismissal on the basis that all of the claims against them are barred by the Limitations Act , RSA 2000 c L-12 (“the Act ”). [ 14 ] GWL and London Life apply for

summary dismissal on the basis of the following: a. the claims are statute barred by virtue of the Limitations Act from being advanced against GWL; b. the management fees charged by GWL, as set out in the

Schedule of Fees, were not “retail fees”, as alleged, but were calculated based on GWL’s fees for group plans and the specifications of the plan; and c. GWL is not the administrator and owes no duty, fiduciary or otherwise, to the members of the Leavitt Pension Plan (“Members”) or any other person entitled to a benefit under the terms of the plan, except for those duties and obligations specifically provided for in the agreement. [ 15 ] The remedies sought in the Statement of Claim include recovery of the 1% fee paid to Randy Leavitt, damages for negligent misrepresentation and recovery of retail fees paid by members. 3. The Pension Plan

[ 16 ] Pursuant to para 17.1 of the Collective Agreement, all employees covered by the Collective Agreement were required to participate in a defined contribution pension plan (the “Pension Plan”). [ 17 ] Given that the Pension Plan was defined, the following terms applied: a. each member would have an individual account wherein individual contributions would be credited; b. each member would select which type of investment fund to participate in; and c. investment income would be attributable on an individualized basis. [ 18 ] Once a member enrolled in the Pension Plan, GWL provided documentation outlining different investment funds available and described management fees which it would charge depending on the type of fund selected. [ 19 ] GWL provided each member semi-annual statements and investment management fee schedules. [ 20 ] Each member was provided with an online login identification system and a password such that each member could review their account at any time.

As well, members could access a call centre to obtain information. [ 21 ] The Collective Agreement entered into between the Employer and the Union obligated the Employer to provide each member a statement outlining the value of the pension credits accrued each year. [ 22 ] In accordance with the wording of the Pension Plan Text, the Employer was responsible for paying the cost of administering the Pension Plan. [ 23 ] Each member would be responsible for paying the fees and expenses attributable to their individual investment fund. This was referred to as the Management Expense Ratio - MER. 4.

The Pension Plan Advisory Fee Paid to Randy Leavitt [ 24 ] In early 2013, Leavitt realized that the 1% plan advisory fee paid to Randy Leavitt for the period January 1, 2011 to June 30, 2013 should have been paid by Leavitt, and not from Pension Plan funds. [ 25 ] In a Memorandum dated December 9, 2013, Leavitt agreed to reimburse members for amounts improperly deducted, calculated as follows: Calculation of the Payment As set out above, for the benefit of the individual members and subject to the terms and conditions set out below, Leavitt will pay to the Pension Plan 1. 1% of the value (as at June 30, 2013) of: (

a) the contributions made from January 1, 2011 to June 30, 2013; plus (

b) all investment income earned on the contributions set out in item (

a) above up to June 30, 2013. 2. An additional 10% of the value calculated in 1 above to cover the potential investment income that could be earned from July 1, 2013 to December 31, 2013. (1% of the value of the amount set out in 1(a), 1(b), and the amount in 2 above is hereinafter referred to as the “Payment Amount”). [ 26 ] Subsequently, a further payment was made of $70.55, resulting in a total reimbursement of $169,954.21. [ 27 ] This amount was allocated on a pro rata basis to all members and no pension advisory fee has been paid since. 5. The Test for

Summary Judgment [ 28 ] The parties are in agreement that the test for

summary judgment pursuant to Rule 7.3 was extensively reviewed the by the Alberta Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 . [ 29 ] The Court of Appeal summarized the following principles with respect to

summary judgment in Alberta: (

a) where the record allows for the judge to make the necessary findings of fact and apply the law, the

Summary Judgment procedure should be used unless there is some substantive reason to conclude that

summary disposition would not achieve a just result; (

b) there is only one standard of proof in civil law: proof on a balance of probabilities. The party moving for

Summary Judgment must, at the threshold stage, prove the factual elements of its case on a balance of probabilities, and that there is no genuine issue requiring a trial; (

c) the following are key considerations when determining an Application for

Summary Judgment:

(

i) is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal agenuine issue requiring a trial?; (ii) has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuineissue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail,but mere establishment of the facts to that standard is not a proxy for

summary adjudication; (iii) if the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record thatthere is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, byshowing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring atrial. If there is a genuine issue requiring a trial,

summary disposition is not available; and (iv) in any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared toexercise the judicial discretion to summarily resolve the dispute. Weir-Jones at paras 25, 28, 32 and 47 [30] At para 37, the Court of Appeal affirmed the long standing principle that the test for

summary disposition must be on therecord that is actually before the Court and that parties to an application of this nature must “put their best foot forward”: Even before Hryniak v Mauldin it was established that the parties to a

summary disposition application must “put their best footforward”: Canada (A.G.) v Lameman, 2008 SCC 14 at para. 11, [2008] 1 SCR 372. One could not resist

summary disposition,or create a “genuine issue requiring a trial” by speculation about what might turn up in the future. Lameman stated the principle at para.19: 19 We add this. In the Court of Appeal and here, the case for the plaintiffs was put forward, not only on the basis of evidenceactually adduced on the

summary judgment motion, but on suggestions of evidence that might be adduced, or amendments that might bemade, if the matter were to go to trial. A

summary judgment motion cannot be defeated by vague references to what may be adduced inthe future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion forsummary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about whatmight be pleaded or proved in the future. This applies to Aboriginal claims as much as to any others. (emphasis added) From this it is clear that the Hryniak v Mauldin test is to be applied based on the record actually before the

summary disposition judge. 6. Have the Respondents Put Their Best Foot Forward inOpposing this Application for

Summary Judgment? [31] As noted at para 37 in the Weir-Jones decision, the Court of Appeal made it clear that parties in an application for

summaryjudgment must put their best foot forward and not speculate that additional information may be produced in the future. [32] The parties to this application provided me with extensive briefs of law, authorities, and supporting materials. [33] The Respondents filed an Affidavit on October 18, 2019 from Kevin Clark, who is currently the Directing BusinessRepresentative for the Union. His Affidavit deposes that he has been a Business Representative for the Union since 2008.

He does notdepose to having any involvement with the Union prior to 2008. [34] In para 3, he deposes to taking over responsibility for the Leavitt bargaining unit from Robert MacKinnon, who has sinceretired.

The date of MacKinnon’s retirement was not specified. [35] At para 6, he references reviewing documents and obtaining information to the effect about what MacKinnon learned in oraround 2011, but no reference was made to inquiring about what he learned before 2011. [36] Appended to his Affidavit are a series of documents from the Union file which involve email correspondence betweenMacKinnon, Leavitt and GWL. [37] In para 17, he deposed to personally attending a Pension Advisory Committee meeting held on March 5, 2013.

He does notdepose to having any involvement prior to that date with Leavitt pension issues. [38] In para 19, he deposed to meeting with Leavitt employees Alison Fuller and Carolyn Mui, along with MacKinnon, onDecember 9, 2013. [39] In para 20, he deposed that at the December 9, 2013 meeting, he learned that a 1% fee was being paid to Randy Leavitt by thePension Plan. [40] No reference was made to when MacKinnon first learned of the existence of the advisory fee or that he ever asked him toclarify this. [41] In a document entitled ‘Answers to Undertakings of Kevin Clark from Questioning on his Affidavit Held on October 23,2019’, it was noted that Clark did speak to MacKinnon about his understanding of the statement “we are taking legal action” contained inone of MacKinnon’s emails. [42] In an email dated September 19, 2012, MacKinnon said the following: “I am starting the process tomorrow with our legal

counsel.” [ 43 ] There is no reference to Clark having spoken to MacKinnon about other issues pertinent to this application, including MacKinnon’s state of knowledge at various times about whether the Union should be filing a Statement of Claim, or when MacKinnon first considered bringing legal action respecting pension issues. [ 44 ] Given that the Respondents have not filed an Affidavit from MacKinnon, these critical questions are left unanswered. [ 45 ] During argument for this application, I inquired as to MacKinnon’s status and was advised that he is alive, healthy and is residing in a town a short distance outside of Edmonton. [ 46 ] It is clear from 2001 up to the unspecified date of MacKinnon’s retirement sometime after December 9, 2013, that he was heavily involved in discussing pension issues with Leavitt and GWL. [ 47 ] His state of knowledge of pension issues at various times would be critical in terms of whether the two year limitation period under s 3(1)(

a) of the Act had been triggered, that is, did the Union know or in the circumstances ought to have known that the Respondents had suffered an injury requiring it to seek a remedial order within two years? [ 48 ] It cannot be credibly argued that the Respondents have put their best foot forward when they chose not to submit an Affidavit from MacKinnon, who within the Union was the individual with the most firsthand knowledge of what transpired from 2001 until he retired approximately 12 years later. [ 49 ] Moreover, no Affidavits were filed by the representative Plaintiffs, Terry Colby and Scott Chalmers.

This omission is significant given the position of the Applicants that at all material times, individual Union members could access detailed information about their Pension Plan coverage and the costs thereof. [ 50 ] In the result, there is no evidence in this application to refute the position of the Applicants that this information was readily available. 7.

Should the Claims Against Randy Leavitt be Summarily Dismissed Because Full Rectification of These Claims has Allegedly Been Made? [ 51 ] It is uncontroverted that Leavitt made voluntary payments totalling $169,954.21, which amounts were allocated to members on a pro rata basis. [ 52 ] It is also uncontroverted that no payments to Randy Leavitt as a plan advisor have been made since, and Leavitt acknowledges that these payments should not have been made from pension funds. [ 53 ] The Respondents argue that Leavitt has not made full rectification in that no reimbursement was offered prior to January 1, 2011, nor was any reimbursement made for commissions paid to Leavitt or a 2% transfer commission paid to him out of the Plan. [ 54 ] As well, reimbursement was only offered to members who had current GWL accounts, thus former employees were not part of the reimbursement plan. [ 55 ] Given these omissions, it cannot be argued that full rectification has been made, rather only partial rectification. [ 56 ] In the result, the claims against Randy Leavitt cannot be dismissed on the basis that full rectification has been made. 8.

The Limitations Act [ 57 ] The Limitations Act , ss 3(1), 4, 8(2) and 9(1) read as follows: Limitation periods 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose ...

Concealment 4(1) The operation of the limitation period provided by section 3(1)(

b) or (1.1)(

b) is suspended during any period of time that thedefendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

(2) Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(b)or (1.1)(

b) was suspended. ... Acknowledgment and part payment 8(2) Subject to subsections (3) and (4) and

section 9, if a person liable in respect of a claim acknowledges the claim, or makes a partpayment in respect of the claim, before the expiration of the imitation period applicable to the claim, the operation of the limitationperiod begins again at the time of the acknowledgment or part payment. ... Persons affected by exceptions for agreement, acknowledgment and part payment 9(1) An agreement and an acknowledgment must be in writing and signed by the person adversely affected. 9.

Did the Applicants Fraudulently Conceal the Injury forWhich a Remedial Order is Being Sought? [58] The Respondents argue that s 4 of the Act is engaged in that the Applicants fraudulently concealed the injury for which aremedial order is being sought. [59] While I accept that the Union experienced delays in obtaining some documents from Leavitt and GWL, I do not accept thatthe Respondents have met the burden of proving that their actions were fraudulent. [60] On this evidentiary record, it is clear that the Union had access to a large volume of pension documentation from the time ofthe transfer of the Pension Plan to Leavitt from Finning in 2001. [61] In addition, individual members were able to access information from GWL through a password protected online portal. [62] There is no evidence that any of the Applicants deliberately meant to deceive or mislead the Union or any of its members. [63] Absent such evidence, s 4 of the Act is not engaged. 10.

Did the Respondents Sign an Acknowledgement of theClaim? [64] The Applicants argue that the claims against Randy Leavitt are barred by operation of s 3 of the Act. [65] The Respondents argue that the Memorandum dated December 9, 2013 was an acknowledgement of the claim, thus engagingss 8 and 9 of the Act, such that the operation of the limitation period would begin at the time of the acknowledgement of the claim. [66] I do not accept that ss 8 and 9 of the Act are engaged. [67] The Memorandum of December 9, 2013 was not signed by the Union or any agent on behalf of it. 11.

What Triggers the Operation of the Limitations Act? [68] It is well established that the phrase “first knew, or in the circumstances ought to have known” in s 3(1)(

a) of the Act imposeson a party claiming to be injured, a duty to respond to the injury with reasonable diligence. [69] The burden is on the plaintiff to put forward some evidence of what steps were taken to advance the claim (Clark Buildersand Stantec Consulting Ltd v GO Community Centre, 2019 ABQB 706 at para 257). [70] At para 259, it was held that what is required is knowledge of the injury, not knowledge of whether there is a cause of action. [71] In Owners: Condominium Plan No. 0625385 v Oxford Grande Ltd, 2017 ABQB 316, Rooke ACJ summarized the principlesof law governing the issue of what a limitation period is triggered. [72] At paras 12-14, he noted the legal distinction between an injury and the cause of an injury. [73] At para 20, he referenced the Supreme Court of Canada decision in Peixeiro v Haberman, (SCC), [1997] 3

SCR 549 wherein it was held that a cause of action accrues once the plaintiff becomes aware that some damage has occurred. Full knowledge of the extent of the damage is not required. [ 74 ] At para 29, he concluded that the issue is reduced to whether by a given date, the plaintiff was aware that an injury had occurred, the identity of the parties which allegedly caused the injury was known and the injury warranted seeking a remedial order. [ 75 ] In the factual context of this application for

Summary Judgment, the issue is reduced to whether at a given date, the Respondents were aware that an injury had occurred, were aware of the identities of the parties which caused the injury, and the injury warranted seeking a remedial order? [ 76 ] The injury would be the allegation that members were paying too much for their pension coverage. [ 77 ] There is no dispute that they were fully aware of the parties which allegedly caused the injury being the Leavitt Defendants, GWL and London Life. [ 78 ] Finally, the injury warranted seeking a remedial order. 12.

Are All of the Claims in the Statement of Claim Subject to the Same Limitation Period? [ 79 ] It is uncontroverted that in the period January to March, 2013 it was discovered that the 1% pension advisory fee which was embedded in the MER, should not have been paid out of pension funds. Rather, it should have been paid by Leavitt. [ 80 ] However, it is also uncontroverted that MacKinnon had been aware for some time before that date, that the 1% advisory fee was being paid and formed part of the MER. [ 81 ] On June 1, 2011, he sent the following email: ...

People are paying higher than normal fees for any group plan we have ever seen, and that alone states itself Leavitt is not fulfilling their legal responsibility to its own employees under the legislation and the CAPS guidelines, without concerning with how much the plan made that issue itself is possible causing members to not make as much as they can, but the bigger issue is they are paying 2.25 to 3.5% of what the funds are making for the management of the funds.

Your statement back was Randy Leavitt supplies a service and feels he is worthy of the 1% he makes, while that may be accurate and possibly true... [ 82 ] Moreover, the advisory fee payment was discussed at a Pension Plan meeting on December 2, 2011, which is reflected in MacKinnon’s handwritten notes of the meeting. [ 83 ] The Grievance filed on December 9, 2013 references pension fee disputes dating back to 2001. [ 84 ] Allegedly excessive fees would be caused a combination of Pension Plan management fees and the 1% advisory fee, which were embedded in the MER. [ 85 ] As noted in Oxford and Clark Builders , the cause of action exists once the plaintiff suffers an injury, identifies the parties which caused it, and knew or should have known of the need to seek a remedial order. [ 86 ] Accordingly, for limitation purposes, all claims pertaining to allegedly excessive fees would involve the same triggering event.

Full particulars of how excessive fees were caused was not required. [ 87 ] Since 2001, the Union raised an ongoing series of complaints about Pension Plan costs. [ 88 ] The Union never considered the 1% advisory fee to be a separate claim, rather it was part of an overall concern of the Union that pension costs were too high. [ 89 ] It is significant that the Union filed one Grievance, not two. [ 90 ] Discovery of why the MER was allegedly too high is analogous to the situation in Oxford , that is, the cause of an injury is not the same as the injury itself. [ 91 ] In the result, all of the claims in the Statement of Claim are subject to the same limitation period. 13.

Are the Claims of the Respondents Barred by the Limitations Act ? A. Section 3(1)(a) – Two Year Limitation Period

[ 92 ] A review of the documents filed in the application reveals the following: • on March 30, 2004, MacKinnon forwarded the following email referencing that the Union had consulted experts in 2002: ... In 2002 Randy Leavitt had finalized a document for the Pension Plan which he forwarded it to us, it was supposed to mirror the previous plan.

We had this plan reviewed by experts in 2002 after receiving it.... • in late 2010 and early 2011, the parties were bargaining for a renewal of the Collective Agreement, and during negotiations MacKinnon expressed concerns about the Pension Plan; • in or around 2011, MacKinnon learned that a 1% fee for services was being paid to Randy Leavitt in relation to the Plan; • in April 2011, there was an email exchange wherein MacKinnon requested from Leavitt additional information pertaining to the management of the Pension Plan; • on April 19, 2011, the Union was provided with information from Great West-Life pertaining to the Pension Plan. [ 93 ] In an email dated May 4, 2011, MacKinnon said the following: We have had further discussions with our experts about the pension plan information.

The plan is terrible in the amount of cost per fund, Leavitt Machinery has a fiduciary responsibility per the Canadian CAP guide lines – there could not be legal liability and financial liability for losses of the plan to date and from here on.

We cannot leave this situation as is, we have found out how bad this plan is during negotiations and we have a right a legal concern for our members that has to dealt with now. [sic] [ 94 ] On the same date, MacKinnon forwarded the following email: Sheldon; The costs are usually .5 to 1.2 in group plans, at times a bit higher like 1.5 but never do we see 2.23 to 3.3 percent as management fees.

No caring employer would subject their employees to such fees... [ 95 ] On June 1, 2011, MacKinnon forwarded an email to Leavitt, a potion of which reads as follows: People are paying higher than normal fees for any group plan we have ever seen, and that alone states itself Leavitt is not fulfilling their legal responsibility to its own employees under the legislation and the CAPS guidelines, without concerning with how much the plan made that issue itself is possibly causing members to not make as much as they can, but the bigger issue is they are paying 2.25 to 3.5% of what the funds are making for the management of the funds. [ 96 ] In light of the foregoing, the inevitable conclusion which must be drawn is that MacKinnon, by 2002, had consulted pension experts and had raised with Leavitt that pension administration fees were too high. [ 97 ] It is apparent from all of the documents submitted respecting this application that from the outset MacKinnon’s position never changed.

That is, pension costs were too high. At no time did MacKinnon ever state that the Union felt that pension costs were appropriate. [ 98 ] By September 2012, MacKinnon in emails referred to the Union taking legal action over pension issues. [ 99 ] On December 9, 2013, the Union submitted a Grievance, which contains the following wording: On December 9 th , 2013, the Union was given a “MEMO” laying out the particulars to resolve an ongoing issue (since 2001) with the DC Pension Plan...

The excessive Pension management and third party fees that were incurred by the Plan members since 2001 be recalculated and paid at 2% (as per the MEMO) retroactively back to 2001 and to be made whole in all respects... [ 100 ] The wording of the Grievance is consistent with MacKinnon’s emails; that is, pension fees incurred since 2001 were being disputed. [ 101 ] By the end of 2002, the Union knew or in the circumstances ought to have known, that it had suffered an injury, caused by the actions of the Applicants, and that there was a need to seek a remedial order. In the result, the operation of s 3(1)(

a) of the Act was triggered by the end of 2002. [ 102 ] The filing of the Statement of Claim on August 12, 2014 falls well below the standard of reasonable diligence required of the Respondents. [ 103 ] The Respondents have failed to establish that reasonable diligent steps were taken to advance the claim in a timely manner.

[ 104 ] Accordingly, all of the claims in the Statement of Claim are barred by s 3(1)(

a) of the Act . B.

Section 3(1)(b) – Ten Year Limitation Period [ 105 ] It is well established that the ten year limitation period begins to run after the claims arise irrespective of whether the plaintiff discovered the injury. [ 106 ] As a result of the business sale, the Plaintiffs were terminated from the Finning Pension Plan in September or October of 2001. [ 107 ] In the Grievance of December 2013, the Union referenced issues with the Pension Plan dating back to 2001. [ 108 ] As was noted in Weldon v Teck Metals Ltd , 2013 BCCA 358 , claims of injury relating to the transferring from one pension plan to another are calculated from the date of transfer. [ 109 ] In Alberta Municipal Retired Police Officers’ Mutual Benefit Society v Alberta , 2010 ABQB 458 , Kent J held that pension payments do not re-set the limitation period. [ 110 ] As noted in the discussion dealing with s 3(1)(

a) of the Act , it is uncontroverted that by 2002, the Union had concluded that pension costs were too high and was consulting pension experts. [ 111 ] In the result, the ten year limitation period under s 3(1)(

b) was triggered no later than the end of December 2002. 14.

Other Defences Raised by GWL and London Life [ 112 ] The Statement of Claim alleges that GWL and London Life were charging retail fees. [ 113 ] GWL confirmed that it charged group rates for all of the group plans it provided. [ 114 ] There is no evidence that GWL charged retail fees and no evidence from Colby or Chalmers that they were charged retail fees or that any member of the Class was so charged. [ 115 ] In the Statement of Claim it is also alleged that GWL breached fiduciary duties owed to the representative Plaintiffs. [ 116 ] The applicable pension plan policy contains the following provision: Limitation of liability (continued) The issue is not the administrator of the plan, and owes no duty, fiduciary or otherwise, to the plan sponsor, employer, members or any other person entitled to a benefit under the terms of the plan, except for those duties and obligations specifically provided for in the agreement. [ 117 ] Nowhere in the Pension Plan policy is it stipulated that GWL owes any duty to the plan members. [ 118 ] In the result, all of the claims against GWL and London Life based on allegations of improper fees being charged or on the basis of alleged breach of fiduciary duties, are summarily dismissed as there is no genuine issue requiring a trial. 15.

Conclusion and Order [ 119 ] I have concluded that the Applicants have established on a balance of probabilities that there is no genuine issue requiring a trial. [ 120 ] The Respondents have failed to put their best foot forward and have failed to demonstrate that there is a genuine issue requiring a trial. [ 121 ] In the result, the application for

Summary Judgment is granted and the action struck out against all the Applicants. [ 122 ] Costs may be spoken to. Heard on the 20 th day of November, 2019. Dated at the City of Edmonton, Alberta this 2 nd day of December, 2019. R. Paul Belzil J.C.Q.B.A.

Appearances: Alexandra C. Bochinski and Jessie E. Black DLA Piper (Canada) LLP for the Applicants, Interior Lift Truck Services Inc., Leavitt Machinery, GP, Leavitt Machinery and Rentals Inc., Tom Leavitt and Brian Leavitt Karen D. Ivanovic and Allie Larson Parlee McLaws LLP for the Applicants, The Great West-Life Assurance Company and London Life Insurance Company Michael S. Sestito Dentons Canada LLP for the Applicant, Randy Leavitt John R. Carpenter and Tim Nessim Chivers Carpenter for the Respondents