Professional Institute of the Public Service of Canada, Canadian Merchant Service Guild, Federal Government Dockyard Trades v. Labour Council (East), International Brotherhood of Electrical Workers, Federal Government Dockyard Chargehands, 2012 SCC 71

SUPREME COURT OF CANADA Citation: Professional Institute of the Public Service of Canada v.

Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660 Date: 20121219 Docket: 33968 Between: Professional Institute of the Public Service of Canada, Canadian Merchant Service Guild, Federal Government Dockyard Trades and Labour Council (East), International Brotherhood of Electrical Workers, Federal Government Dockyard Chargehands Association, Research Council Employees’ Association, Association of Public Service Financial Administrators, Professional Association of Foreign Service Officers, Federal Government Dockyard Trades and Labour Council (West), Canadian Association of Professional Radio Operators, Canadian Air Traffic Control Association, Canadian Military Colleges Faculty Association and Federal Superannuates National Association Appellants and Attorney General of Canada Respondent AND BETWEEN: Public Service Alliance of Canada Appellant and Attorney General of Canada Respondent AND BETWEEN: Armed Forces Pensioners’/Annuitants’ Association of Canada, Association des Membres de la Police Montée du Québec, British Columbia Mounted Police Professional Association, Mounted Police Association of Ontario and Canadian Association of Professional Employees Appellants and Attorney General of Canada Respondent - and - Attorney General of British Columbia Intervener Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 165) Rothstein J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ. concurring) Professional Institute of the Public Service of Canada v.

Canada (Attorney General), 2012 SCC 71, [2012] 3 S.C.R. 660 Professional Institute of the Public Service of Canada, Canadian Merchant Service Guild, Federal Government Dockyard Trades and Labour Council (East), International Brotherhood of Electrical Workers, Federal Government Dockyard Chargehands Association, Research Council Employees’ Association, Association of Public Service Financial Administrators, Professional Association of Foreign Service Officers, Federal Government Dockyard Trades and Labour Council (West), Canadian Association of Professional Radio Operators, Canadian Air Traffic Control Association, Canadian Military Colleges Faculty Association and Federal Superannuates National Association Appellants v.

Attorney General of Canada Respondent - and - Public Service Alliance of Canada Appellant v. Attorney General of Canada Respondent - and - Armed Forces Pensioners’/Annuitants’ Association of Canada, Association des Membres de la Police Montée du Québec, British Columbia Mounted Police Professional Association, Mounted Police Association of Ontario and Canadian Association of Professional Employees Appellants v. Attorney General of Canada Respondent and Attorney General of British Columbia Intervener Indexed as: Professional Institute of the Public Service of Canada v. Canada (Attorney General) 2012 SCC 71

File No.: 33968. 2012: February 9; 2012: December 19.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for ontario Pensions ― Pension plans ― Surplus ― Public sector pension plans administered by government ― Government amortizing actuarial surpluses in Superannuation Accounts ― New legislation coming into force on April 1, 2000 amending Superannuation Acts ― Government debiting over $28 billion directly from Superannuation Accounts on basis of new legislation ― Whether Superannuation Accounts contain assets ― Whether government owes fiduciary duty to Plan members ― Whether constructive trust should be imposed over balances in Superannuation Accounts as of March 31, 2000 ― Whether new legislation authorizing government to debit actuarial surpluses in Superannuation Accounts ― Public Service Superannuation Act, R.S.C. 1985, c.

P-36 ― Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17 ― Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 ― Public Sector Pension Investment Board Act, S.C. 1999, c. 34 . There are three pension plans involved in this appeal (the “Plans”). They were established by statute for each of the three groups: substantially all those who are employed in the federal public service; the members of the RCMP; and the regular force of the Canadian Forces (the “Plan members”). Each Plan is administered by the Government of Canada, and each is a contributory, defined benefit plan.

The statutes governing the Plans establish for each one a “Superannuation Account”, which records payments into and out of the Plan. In the 1990s, the credits to the Superannuation Accounts began to reflect actuarial surpluses (meaning that the credits exceeded the estimated cost of providing pension benefits). By March 1999, the total surpluses of the three Plans had reached approximately $30.9 billion. There are two relevant time periods in this appeal. The first period is up to and including March 31, 2000.

It precedes the coming into force of the Public Sector Pension Investment Board Act , S.C. 1999, c. 34 (“ Bill C-78”), legislation that amended the Superannuation Acts ( PSSA ; CFSA and RCMPSA ) and, thus, the Plans. The second period begins on April 1, 2000, when Bill C-78 came into effect. Beginning with the 1990-91 Public Accounts (Canada’s annual financial reports), the government began to “amortize” the actuarial surpluses in the Superannuation Accounts.

The effect of this “amortization” was twofold: it reduced the government’s annual budget deficit (or increased the annual budget surplus) by reducing annual pension expenditures, and it brought the government’s net debt down by reducing the net pension liabilities to an amount closer to the actuarial estimates of the government’s future pension obligations. In 1999, the government introduced Bill C-78, which came into force on April 1, 2000. It made significant changes to the Superannuation Acts and changed the way in which contributions to the Plans were collected, managed and distributed.

It established a Pension Fund in each of the Superannuation Acts that replaced the Superannuation Accounts for post-March 31, 2000 service. Since April 1, 2000, employee and government contributions in respect of current service have been made to the Pension Funds. All benefits for pensionable service prior to April 1, 2000, when paid, are charged to the appropriate Superannuation Account. However, benefits paid for service thereafter are paid from the appropriate Pension Fund.

Bill C-78 also required the Minister to debit from the Superannuation Account certain amounts in excess of specified actuarial surplus ceilings. Unlike the effect of the prior amortization practice, on the basis of Bill C-78, the government debited over $28 billion directly from the Superannuation Accounts, thereby reducing the actuarial surplus in those accounts. Various unions and associations filed suit, seeking relief that would require the government to return $28 billion to the Plans. The trial judge dismissed the claims and the Ontario Court of Appeal upheld the decision.

In their appeal in this Court, they seek a declaration that the Plan members have an equitable interest in the outstanding balance in the Superannuation Accounts as of March 31, 2000. They also seek a declaration that Bill C-78 does not authorize the reduction from the Superannuation Accounts of any amount in which Plan members have an equitable interest without compensation. They seek an order that the Superannuation Accounts be credited with all amounts that were removed following Bill C-78 in which the Plan members have an equitable interest, together with interest. Held : The appeal should be dismissed.

The Superannuation Accounts are legislated records and do not contain assets in which the Plan members have a legal or equitable interest. The Plan members’ interests are limited to their interest in the defined benefits to which they are entitled under the Plans. The Superannuation Acts created the Accounts to track Plan-related Consolidated Revenue Fund (“CRF”) transactions and to estimate the government’s pension liabilities to Plan members. In this way, they are accounting records, not funded and segregated pools of assets.

When the word “assets” is used in the legislation in reference to the Superannuation Accounts, it merely signifies their credit balances, not anything of value to which the Plan members could have an interest. Even if reference to extrinsic aids was appropriate, the extrinsic evidence available is inconclusive. Nor does it afford insight into the intention of Parliament when creating the Superannuation Accounts. The courts below were correct to reject the theory that the government borrowed from the Accounts, placing in them promises to pay by the government (the purported assets in the Accounts).

This theory is inconsistent with the legislation in that it assumes that the government was required to contribute property into the Accounts in the first place. As the Accounts are no more than accounting records, this would have been impossible. Prior to April 1, 2000, all of the real money associated with Canada’s pension scheme remained unsegregated in the CRF, until benefits were actually paid — out of the CRF — to Plan members.

The superannuation scheme reflects “internal borrowing” only in the sense that it avoids, by design, the need for the external borrowing that would otherwise be required to finance the government’s pension obligations. The Superannuation Accounts are just accounting records and they are not funds, nor are they “trust-like”, such that it is possible to borrow from them. As the Superannuation Accounts do not contain assets, there was no property in respect of which Plan members can have a legal or equitable interest.

However, even if the Accounts did contain assets, it has not been established that the Plan members have a proprietary interest in either their contributions made or in the government credits under the Superannuation Acts . On a plain reading of

the Superannuation Acts, there is no suggestion that the Plan members have a proprietary interest in their contributions. Contributingemployees can claim no continuing property interest in these amounts. In exchange for their contributions, and with each year ofpensionable service, employees gain a legal entitlement to a future benefit. It has been asserted that employees have an interest in boththe employee and employer contributions, plus interest, on the basis that they form part of employees’ total compensation.

Even if itwere to be assumed that employees have an interest in the contributions at the point in time at which their salaries are to be paid to them,no interest in these amounts could survive the requirement in the Superannuation Acts that they be paid into the CRF and credited to theAccounts. Rather, this is the “cost” paid by employees for the future legal entitlement to their statutorily defined benefits. TheSuperannuation Acts also do not establish that employees have an equitable interest in the amounts credited to the Accounts. Theyprovide only a legal entitlement to statutorily defined pension benefits.

Nor was the government subject to a fiduciary obligation in favour of the Plan members with respect to the actuarialsurplus. In this case, the government does not fall into any of the per se fiduciary relationships. It is contended that the government is ina recognized fiduciary role in its capacity as a pension plan administrator; however, it is not necessary to decide the precise ambit of anypotential fiduciary duty that might arise between the government, as pension plan administrator, and the beneficiaries of the plan, orwhether the relationship inherently carries with it some set of fiduciary obligations.

It is clear that the government had no fiduciary dutyto the Plan members with respect to the actuarial surplus. There was no ad hoc fiduciary relationship between the government and thePlan members with respect to the actuarial surplus reflected in the Superannuation Accounts. Most importantly, the government did notundertake, either expressly or impliedly, to act in the best interests of the Plan members with respect to the actuarial surplus. Withoutsuch an undertaking of loyalty in favour of these particular stakeholders, the government’s duty was to act in the best interests of societyas a whole.

This is inconsistent with the existence of a fiduciary duty. Moreover, while the government exercised discretion in itsaccounting treatment of the surpluses in the Superannuation Accounts, the Plan members were not vulnerable to that discretion, nor didthey have any legal or practical interest at stake. The effect of the amortization was to disclose more accurately Canada’s actual pensionobligations, not to affect Plan members’ statutory entitlements under the Plans. Further, a constructive trust should not be imposed over the balances in the Superannuation Accounts as of March 31, 2000.

There was no enrichment and corresponding deprivation, and a prima facie case of unjust enrichment has not been established. As theSuperannuation Accounts are mere accounting records, and do not contain assets in which the Plan members have an interest, noenrichment and corresponding deprivation can be found in either (1) the government’s decision prior to April 1, 2000, to amortize thesurpluses for accounting purposes, or

(2) Parliament’s decision to enact Bill C-78 to require the debiting of a portion of the surplusdirectly from the Accounts. Bill C-78 authorized the government to debit the actuarial surpluses in the Superannuation Accounts. The courts below didnot err in determining that the Plan members have no equitable interest in the surpluses in the Superannuation Accounts. Bill C-78 thuscould not have expropriated the Plan members’ property.

Further, the Superannuation Acts are unambiguous in establishing that theMinister may debit any actuarial surplus and must debit all amounts exceeding 110 percent of the estimated liability under the Plans. Moreover, it is “extremely clear” that Parliament did not intend any compensation to be given to the Plan members for these debits,whether or not this constituted expropriation. It would be absurd to read Bill C-78 as requiring the government to debit excess amountsand then compensate the Plan members for the amounts debited. Such an

interpretation would be to convert the relevant provisions ofBill C-78 into a distribution mechanism — where the surpluses would be reduced and the Plan members would receive some form ofcompensation in lieu of having surpluses in the Accounts — which was quite clearly not Parliament’s intent. Cases Cited Applied: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; distinguished: Burke v.Hudson’s Bay Co., 2010 SCC 34, [2010] 2 S.C.R. 273; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R.222; referred to: Schmidt v.

Air Products Canada Ltd., (SCC), [1994] 2 S.C.R. 611; Nolan v. Kerry (Canada) Inc.,2009 SCC 39, [2009] 2 S.C.R. 678; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3S.C.R. 152; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; CanadianOxy Chemicals Ltd. v. Canada(Attorney General), (SCC), [1999] 1 S.C.R. 743; United States of America v. Dynar, (SCC), [1997] 2S.C.R. 462; Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335;Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Frame v.

Smith, (SCC), [1987] 2 S.C.R. 99;Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377; Gladstone v. Canada (Attorney General), 2005 SCC 21, [2005] 1S.C.R. 325; Soulos v. Korkontzilas, (SCC), [1997] 2 S.C.R. 217; Pacific National Investments Ltd. v. Victoria (City),2004 SCC 75, [2004] 3 S.C.R. 575; Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980; Sorochan v. Sorochan, (SCC), [1986] 2 S.C.R. 38; Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919. Statutes and Regulations Cited Act to amend the Civil Service Superannuation Act, S.C. 1944-45, c. 34, s. 6.

Act to amend the Militia Pension Act, S.C. 1946, c. 59, s. 6. Act to amend the Royal Canadian Mounted Police Act, S.C. 1947-48, c. 28, s. 10. Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17, s. 55(9) to (13). Canadian Forces Superannuation Act, S.C. 1959, c. 21. Civil Service Superannuation Act, R.S.C. 1952, c. 50, s. 21. Defence Services Pension Act, R.S.C. 1952, c. 63. Financial Administration Act, R.S.C. 1985, c. F-11, ss. 2 “Consolidated Revenue Fund”, “money”, “negotiable instrument”, “publicmoney”, 17, 63, 64.

Financial Administration Act, S.C. 1951, c. 12, s. 2(e) “Consolidated Revenue Fund”. Fisheries Act, R.S.C. 1985, c. F-14. Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.), s. 4. Public Pensions Reporting Act, R.S.C. 1985, c. 13 (2nd Supp.), ss. 5, 7, 8, 9(1). Public Sector Pension Investment Board Act, S.C. 1999, c. 34, s. 4. Public Service Labour Relations Act, S.C. 2003, c. 22 [as en. by Public Service Modernization Act, S.C. 2003, c. 22, s. 2], ss. 2(1)“employee”, “public service”, 113. Public Service Modernization Act, S.C. 2003, c. 22, s. 2.

Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [rep. 2003, c. 22, s. 285], ss. 2 “employee”, 57. Public Service Superannuation Act, R.S.C. 1985, c. P-36, ss. 3(1) “Superannuation Act”, 4, 43, 44, 45. Public Service Superannuation Act, S.C. 1952-53, c. 47, s. 33. Royal Canadian Mounted Police Act, R.S.C. 1952, c. 241. Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, s. 29(9) to (13). Royal Canadian Mounted Police Superannuation Act, S.C. 1959, c. 34. Authors Cited Canada. House of Commons. House of Commons Debates, vol. VI, 3rd Sess., 34th Parl., February 24, 1992, p. 7486. Canada.

Receiver General for Canada. Public Accounts of Canada 1996, vol. I,

Summary Report and Financial Statements. Ottawa: Treasury Board, 1996. Canada. Receiver General for Canada. Public Accounts of Canada 1997, vol. I,

Summary Report and Financial Statements. Ottawa: Treasury Board, 1997. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008. APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Gillese and Juriansz JJ.A.), 2010 ONCA 657, 102 O.R.(3d) 241, 275 O.A.C. 40, 84 C.C.P.B. 161, [2010] O.J. No. 4248 (QL), 2010 CarswellOnt 7532, affirming a decision of Panet J. (2007),66 C.C.P.B. 54, , [2007] O.J. No. 4577 (QL), 2007 CarswellOnt 7541. Appeal dismissed. Paul J. J.

Cavalluzzo, Hugh O’Reilly and Amanda Darrach, for the appellants the Professional Institute of the PublicService of Canada et al. James Cameron, Andrew Raven and Andrew Astritis, for the appellants the Public Service Alliance of Canada, the ArmedForces Pensioners’/Annuitants’ Association of Canada et al. Peter Southey, Dale Yurka and Christine Mohr, for the respondent. Written submissions only by J. Gareth Morley, for the intervener. The judgment of the Court was delivered by Rothstein J. — I.

Introduction [1] This appeal concerns three statutory, public sector pension plans, the members of which are federal public serviceemployees, members of the Canadian Forces, and members of the RCMP. Each plan is administered by the Government of Canada, andeach is a contributory, defined benefit plan. [2] The statutes governing the plans establish for each one a “Superannuation Account”, which records payments intoand out of the plan. In the 1990s, the credits to the Superannuation Accounts began to reflect actuarial surpluses (meaning that thecredits exceeded the estimated cost of providing pension benefits).

By March 1999, the total surpluses of the three plans had reachedapproximately $30.9 billion. [3] Beginning with the 1990-91 Public Accounts (Canada’s annual financial reports), the government began to“amortize” the actuarial surpluses in the Superannuation Accounts. On April 1, 2000, the Public Sector Pension Investment Board Act,S.C. 1999, c. 34 (“Bill C-78”), came into force. Bill C-78 changed the way in which contributions to the plans were collected, managedand distributed. It also required the Minister to debit from the Superannuation Account certain amounts in excess of specified actuarialsurplus ceilings.

Unlike the effect of the prior amortization practice, on the basis of Bill C-78, the government debited over $28 billiondirectly from the Superannuation Accounts, thereby reducing the actuarial surplus in those accounts.

[ 4 ] The appellants (being various unions and employee/pensioner associations) filed suit, seeking relief that would require the government to return $28 billion to the plans. The trial judge dismissed the claims, and the Ontario Court of Appeal upheld the decision ((2007), 66 C.C.P.B. 54 (Ont. S.C.J.), aff’d 2010 ONCA 657 , 102 O.R. (3d) 241). [ 5 ] In order to succeed, the plan members must establish that they have an equitable entitlement to the actuarial surpluses. Otherwise, their entitlement will be limited to the defined pension benefits set out in the governing statutes.

In this connection, the nature of the Superannuation Accounts is an issue of central importance. The appellants have argued that the Superannuation Accounts were funds that contained assets in which an equitable interest could be claimed. They say their equitable interest is protected by a fiduciary duty on the part of the government, and, in the alternative, by a constructive trust based on unjust enrichment. The government counters that the Superannuation Accounts were merely accounting records and contain no assets to which an equitable interest could attach.

A further issue raised on appeal is whether, if the plan members did have an interest in the actuarial surplus, that interest was extinguished by Bill C-78. [ 6 ] I have determined that the courts below were correct to conclude that the Superannuation Accounts were not separate funds containing assets, but were rather accounting ledgers used to track pension-related payments, and to estimate Canada’s future pension liabilities in the Public Accounts.

Therefore, the plan members’ entitlements are limited to the statutorily defined benefits set out in the Superannuation Acts . [ 7 ] I have also concluded that the government was not subject to a fiduciary obligation in favour of the plan members with respect to the actuarial surplus. Nothing in the Superannuation Acts , or any other legislation, supports the contention that the government has undertaken to forsake the interests of all others (including taxpayers) in favour of the plan members with respect to the actuarial surplus.

Further, there was no unjust enrichment and therefore no basis for a constructive trust. As the Superannuation Accounts did not contain assets in which the appellants had an interest, they did not suffer any detriment as a result of the government’s accounting treatment of the Superannuation Accounts. For the same reason, Bill C-78 did not expropriate any property of the plan members. Accordingly, I would dismiss the appeal. II. Facts A. The Pension Plans [ 8 ] The

summary of facts that follows parallels the findings of the Court of Appeal closely. There are three pension plans involved in this appeal (the “Plans”). They were established by statute for each of three groups: substantially all those who are employed in the federal public service; the members of the RCMP; and the regular force of the Canadian Forces (the “Plan members”). The relevant statutes are the Public Service Superannuation Act , R.S.C. 1985, c. P-36 (“ PSSA ”); the Canadian Forces Superannuation Act , R.S.C. 1985, c.

C-17 (“ CFSA ”); and the Royal Canadian Mounted Police Superannuation Act , R.S.C. 1985, c. R-11 (“ RCMPSA ”) (collectively, the “ Superannuation Acts ”). [ 9 ] Each of the Superannuation Acts has legislative antecedents dating back to the late 19th or early 20th centuries. As currently enacted, they date from the coming into force of the present Superannuation Acts — January 1, 1954, for the PSSA , S.C. 1952- 53, c. 47 (“ PSSA 1954”); March 1, 1960, for the CFSA , S.C. 1959, c. 21; and April 1, 1960, for the RCMPSA , S.C. 1959, c. 34. [ 10 ] The Plans are the same in all aspects relevant to these proceedings.

For ease of reference, I will generally refer only to the PSSA , but the analysis and conclusions apply equally to the CFSA and the RCMPSA . [ 11 ] The Superannuation Acts set out the terms of the Plans. They establish contributory, defined benefit pension plans. Membership in the Plans is compulsory for all eligible public service employees, members of the regular force of the Canadian Forces, and members of the RCMP. [ 12 ] There are two relevant time periods in this appeal. The first period is up to and including March 31, 2000.

It precedes the coming into force of Bill C-78, legislation that amended the Superannuation Acts and, thus, the Plans. The second period begins on April 1, 2000, when Bill C-78 came into effect. [ 13 ] Employees are required to make a contribution to the relevant Plan, by way of reservation of salary. While the contribution rates for these Plans varied, employees generally contribute in the range of 5 to 7.5 percent of their salaries. [ 14 ] The defined benefit to which an employee is entitled, upon retirement, is determined in accordance with a formula.

The basic pension is two percent per year of pensionable service (to a maximum of 35 years) multiplied by the average of the best five consecutive years of salary. [ 15 ] The terms of the Plans are not subject to collective bargaining. The PSSA Plan is excluded by virtue of s. 113(

b) of the Public Service Labour Relations Act , enacted by the Public Service Modernization Act , S.C. 2003, c. 22, s. 2 (“ PSLRA ”) (formerly s. 57(2) (

b) of the Public Service Staff Relations Act , R.S.C. 1985, c. P-35 (“ PSSRA ”) (rep. S.C. 2003, c. 22, s. 285 )). The RCMPSA Plan is not subject to collective bargaining because RCMP members are expressly excepted from para. (

d) of the definition of “employee” in s. 2 (

l) of the PSLRA (formerly para. (

e) of the definition of “employee” in s. 2(1) of the PSSRA ) and thus have no collective bargaining rights. The CFSA Plan is not subject to collective bargaining because members of the Canadian Forces are neither Crown employees nor part of the public service as defined in the PSLRA and therefore do not have collective bargaining rights.

Nor are the Plans subject to the Pension Benefits Standards Act, 1985 , R.S.C. 1985, c. 32 (2nd Supp.) (see s. 4 ). [ 16 ] Employee contributions to the Plans were required to be deposited into the Consolidated Revenue Fund (“CRF”). “Consolidated Revenue Fund” is defined to mean “the aggregate of all public moneys that are on deposit at the credit of the Receiver General”, in the Financial Administration Act , R.S.C. 1985, c. F-11 (“ FAA ”), s. 2 .

Prior to April 1, 2000, contributions to the Plans were reflected as credits to the “Superannuation Accounts” (or “Accounts”), which were statutorily established for each of the Plans. Amounts payable pursuant to the Superannuation Acts (pension benefits) were paid from the CRF and debited to the appropriate Superannuation Account.

[ 17 ] In addition to credits reflecting Plan members’ contributions, the legislatively prescribed credits to the Superannuation Accounts prior to April 1, 2000, consisted of the following: (1) credits in respect of contributions by Public Service corporations; (2) government contribution credits; (3) additional actuarial liability credits (to cover actuarial liabilities); (4) transfers from other pension plans and Supplementary Retirement Benefits Accounts; and (5) interest credits on the balance in the Superannuation Accounts at the rate prescribed by regulation. [ 18 ] The required government contribution credits varied over time.

For example, the government was required to credit the Superannuation Account created for the PSSA Plan with amounts matching employee contributions in respect of current service: a year in arrears, from 1954 to 1991, and on a monthly basis, from 1991 to 2000.

Additionally, further credits were required in relation to past or “buy-back” service, and to provide for the cost of benefits accrued in the month in relation to current service. [ 19 ] The reporting of the government’s pension liabilities is subject to the FAA , the applicable Superannuation Act , and the Public Pensions Reporting Act , R.S.C. 1985, c. 13 (2nd Supp.) (“ PPRA ”). Pursuant to s. 64 of the FAA , for each fiscal year the Receiver General must prepare, and the President of the Treasury Board must lay before the House of Commons, an annual report known as the “Public Accounts”.

The Public Accounts reflect the value of the assets and liabilities of Her Majesty in Right of Canada. They are the Government of Canada’s main financial reporting document. [ 20 ] The two principal statements in the Public Accounts are the Statement of Financial Position, which sets out the assets and liabilities of the government, and the Statement of Operations and Accumulated Deficit, which sets out the government’s revenues and expenditures. [ 21 ] The transactions and balances in the Superannuation Accounts are reported annually in the Public Accounts.

The government’s annual credits made pursuant to the Superannuation Acts are shown as a government expense in the Statement of Operations and Accumulated Deficit. The amounts set out in the Superannuation Accounts are shown as an ongoing liability of the government in its Statement of Financial Position. The Superannuation Accounts have been classified as “Specified Purpose Accounts” under the liabilities

section of the Statement of Financial Position since the 1980-81 fiscal year. [ 22 ] As required by the Superannuation Acts and the PPRA , actuarial reports were received from time to time with respect to each of the Plans. The PPRA requires the Chief Actuary of the Office of the Superintendent of Financial Institutions to periodically estimate the cost of the government’s future pension obligations, and to cause a “certification of the assets” of the Plans (ss. 5, 8(1) and 9(1)).

To the extent that the estimated cost of the pension liabilities is greater than the certified value of the “assets” reflected in the Superannuation Accounts, there is an “actuarial deficit”. On the other hand, where the certified value of the “assets” reflected in the Superannuation Accounts exceeds estimated pension liabilities, there is an “actuarial surplus”. [ 23 ] In the 1990s, the actuarial valuations showed that the estimated cost of the present and future obligations for each of the three Plans was less than the total of the amounts showing in the Superannuation Accounts.

The surplus arose as a result of a combination of factors, including low inflation rates, high interest rates, government-imposed restraints on salaries, the capping of indexing benefits in the 1980s, and changing assumptions in calculating the actuarial liability of the Plans. The surplus in the three Superannuation Accounts reached $16.6 billion by December 1992, climbing to $23.4 billion in March 1996 and $30.9 billion in March 1999. B. Amortization of the Surplus [ 24 ] In the 1990-91 fiscal year, the government began to “amortize” the actuarial surplus in the Superannuation Accounts.

The word “amortize” is used to describe the actions undertaken by the government, over a number of years, to gradually reduce the impact of the actuarial surplus on the Public Accounts. The amortization consisted of the following actions: the government continued to credit its contributions to the Superannuation Accounts in accordance with the Superannuation Acts . However, the Public Accounts recorded lower net annual pension expenses.

To accomplish this objective, the government booked into the Public Accounts negative expenses to reflect the amount of the surplus amortized during the year, thereby reducing the government’s total pension expenses. For the books to balance, the negative adjustments to pension expenses were equally reflected in reductions in the government’s total stated pension liabilities on its Statement of Financial Position. To make this happen, the amounts amortized each year were debited to contra-liability accounts (i.e., liability accounts having a debit balance) created in the Public Accounts.

These accounts went by different names over the years — such as the “Allowance for Pension Adjustments” — but their function was the same: they allowed the government to reduce its stated net pension liabilities in the Public Accounts by the amount of the amortization without debiting the Superannuation Accounts themselves. The Superannuation Accounts maintained their credit balances, unaffected by the amortization, but the debit balances in the separate allowance accounts partially offset them in the Public Accounts.

The government’s stated net pension liabilities were in this way gradually brought toward the actuarial valuation of Plan liabilities (i.e., the surplus was gradually reduced), but the balances in the Superannuation Accounts were not affected. [ 25 ] The effect of this “amortization” was therefore twofold: it reduced the government’s annual budget deficit (or increased the annual budget surplus) by reducing annual pension expenditures, and it brought the government’s net debt down by reducing the net pension liabilities to an amount closer to the actuarial estimates of the government’s future pension obligations. [ 26 ] During the 1990s, the government amortized a total of $18.6 billion, with further amounts being amortized after the year 2000.

C. Bill C-78 [ 27 ] In 1999, the government introduced Bill C-78, which came into force on April 1, 2000. It made significant changes to the Superannuation Acts . It established a Pension Fund in each of the Superannuation Acts that replaced the Superannuation Accounts for post-March 31, 2000 service (“Pension Funds”). Since April 1, 2000, employee and government contributions in respect of current service have been made to the Pension Funds. [ 28 ] Under Bill C-78, the amounts in the Pension Funds were to be invested externally. Bill C-78 established an

investment board to manage the assets in the Pension Funds. One of the objects of the investment Board is to manage the amounts that are transferred to it, pursuant to the amended Superannuation Act , “in the best interests of the contributors and beneficiaries under those Acts” (s. 4(1)( a )). [ 29 ] Bill C-78 added s. 44(9) to (13) to the PSSA . In general terms, these subsections both grant discretion to and create an obligation on the Minister to debit the Superannuation Accounts to reduce the actuarial surplus.

While the Minister has the discretion to debit the Superannuation Accounts with any amount of the surplus between 100 percent and 110 percent of the amount estimated to be required to meet the cost of benefits payable, as determined from the actuarial reports, the Minister is required to debit the Accounts for any actuarial surplus that exceeds 110 percent of the amount required to pay future benefits. [ 30 ] Bill C-78 provided that after January 1, 2004, employee contribution rates would no longer be set by legislation but would be set at the discretion of the Treasury Board, subject to certain restrictions.

Employees faced a legislated increase of 15 to 33 percent in contribution rates in the years from 2000 to 2003. In 2005, the Treasury Board announced further increases. [ 31 ] Bill C-78 also changed the basis for the government’s annual contributions. Instead of being required to make contributions matching those made by employees, the government’s contributions are now determined by the President of the Treasury Board, based on the actuarial valuations for each Plan. [ 32 ] All benefits for pensionable service prior to April 1, 2000, when paid, are charged to the appropriate Superannuation Account.

However, benefits paid for service thereafter are paid from the appropriate Pension Fund. [ 33 ] Between 2001 and 2004, the government relied on Bill C-78 to debit over $28 billion from the Superannuation Accounts. Since the effect of the prior amortization was to reduce the annual deficit or increase the annual surplus, and to reduce the government’s net debt, the debiting of any amounts already amortized had no effect on Canada’s financial position. D.

The Appellants’ Action [ 34 ] The appellants brought an action for the return of the actuarial surplus reflected in the Superannuation Accounts, arguing that the government had breached its trust and fiduciary duties by amortizing and debiting the surplus. The appellants also maintained that Bill C-78 did not extinguish Plan members’ interest in the surplus as it did not evidence an unambiguous intent to expropriate without compensation. The trial judge dismissed the appellants’ action.

The Ontario Court of Appeal dismissed their appeal. [ 35 ] In their appeal in this Court, the appellants seek a declaration that the Plan members have an equitable interest in the outstanding balance in the Superannuation Accounts as of March 31, 2000. They say that the equitable interest includes the right to have the entire amount in the Superannuation Accounts used solely for the purpose of providing pension benefits to Plan members.

In the alternative, the appellants seek a declaration that the equitable interest of the Plan members constitutes a right to have a share of the actuarial surplus in the Superannuation Accounts used for the purpose of providing benefits to the Plan members. Under this alternative, the appellants have prorated their share in accordance with the ratio of employee and employer contributions as of March 31, 2000. The Plan members’ contributions were the equivalent of 42.2 percent of the actuarial surplus on that date.

They also seek a declaration that ss. 44(9) and 44(10) of Bill C-78 do not authorize the reduction from the Superannuation Accounts of any amount in which Plan members have an equitable interest without compensation. And they seek an order that the Superannuation Accounts be credited with all amounts that were removed following Bill C-78 in which the Plan members have an equitable interest, together with interest. E. Relevant Statutory Provisions [ 36 ] The relevant statutory provisions are set forth in the Appendix at the conclusion of these reasons. III. Judgments Below A.

Ontario Superior Court of Justice (Panet J.) (2007), 66 C.C.P.B. 54 [ 37 ] The appellants brought a claim for breach of trust and a claim for breach of fiduciary duty with respect to the outstanding balance in the Superannuation Accounts, as of March 31, 2000. [ 38 ] In considering the statutes and other documents, Panet J. found that the trust requirement that there be certainty of intention was not present. Panet J. also concluded that there was no certainty of subject matter. He found that there was no separate or segregated fund.

Panet J. rejected the appellants’ claim for breach of fiduciary duty, as there was no scope for the exercise of any discretion or power, a necessary element of a fiduciary relationship. Panet J. held that the government had no discretion because the PSSA was a complete statutory code. [ 39 ] The appellants also objected to the amortization of the surplus.

Panet J. rejected this claim on the basis that the Public Service Superannuation Plan was not a funded plan, and that the amortized amounts in the Superannuation Account were not assets that had been removed. [ 40 ] In Panet J.’s view, the Superannuation Accounts did not contain assets.

Rather, the Accounts were maintained by the government, pursuant to the FAA , to record and disclose an estimate of its pension liability (the cost of the pension obligation). [ 41 ] Panet J. considered whether the government had borrowed from the Superannuation Accounts the difference between the contributions to the Plans plus interest, and the pension payments from the Plans. He found there was no amount owing by the government to the Superannuation Accounts. [ 42 ] In his view, the government’s pension liability comes from the Superannuation Acts , not the Accounts.

The Superannuation Accounts are effectively an estimate of the cost of the government’s pension liability. Panet J. considered the actuarial

reports periodically submitted to Parliament, which make reference to assets and liabilities in the Plans. However, he found that the use ofthe word “assets” in these reports does not correspond to the ordinary meaning of that word. “Asset” was used to mean the recordedcontributions of employees and the government, less benefits paid — i.e., the balances in the Superannuation Accounts. [43] Even though he concluded that the Superannuation Accounts did not contain assets, Panet J. went on to considerwhether Bill C-78 expropriated any interest that the Plan members had in the surplus.

He concluded that, in clear and unambiguousterms, Bill C-78 required the Minister to debit from the Superannuation Accounts any amount that exceeds 110 percent of the amountestimated to be required to meet pension obligations, and that it gave him the discretion to debit additional amounts of the surplus. [44] Finally, Panet J. rejected the appellants’ argument that Bill C-78 breached the Charter rights of Plan members. [45] Panet J. concluded that the declarations sought by the appellants should not be granted. B.

Ontario Court of Appeal (Gillese J.A., Concurred in by Laskin and Juriansz JJ.A.), 2010 ONCA 657, 102 O.R. (3d) 241 [46] Gillese J.A. found that the trial judge had correctly concluded that the Superannuation Accounts did not containassets, notwithstanding the appearance of the word “assets” in the PSSA. In her view, Superannuation Accounts were “legislatedledgers”, designed to record the amounts credited to the Plans, and to estimate the government’s liability to provide benefits to Planmembers.

The “real money” deducted from employees’ pay cheques was deposited (retained) in the CRF, becoming a part of theaggregate of all public moneys, with a corresponding credit in the appropriate Superannuation Account (paras. 49 to 52). [47] Although government documents referred to the Plans as being “fully funded”, Gillese J.A. held that, understood incontext, that phrase simply meant that the value of credited contributions in the Superannuation Accounts was sufficient to discharge thegovernment’s liability for promised pension benefits (para. 55). [48] However, Gillese J.A. held that the trial judge erred by determining that the PSSA was a complete code.

While thePSSA listed many of the parties’ rights and obligations, prior to April 1, 2000, the PSSA did not address the actuarial surpluses in theSuperannuation Account. Accordingly, the Act did not constitute a complete code prior to Bill C-78 coming into force. [49] It did not follow from this conclusion that Plan members had equitable rights to the actuarial surplus.

They did nothave an interest in the surplus flowing from the PSSA, the employment relationship, trust principles, or from the government’s fiduciaryobligations as Plan administrator. [50] Gillese J.A. found that the government was not a fiduciary in its capacity as administrator of the Plans prior to April1, 2000. However, she held that the trial judge had erred by determining that the government did not have any discretion that could giverise to a fiduciary duty.

In her view, the government had discretion in managing the amounts credited to the Superannuation Accounts.The government made the decision to deal with the actuarial surplus by amortizing it, and this amounted to the exercise of discretion. [51] Gillese J.A. held that there was no property belonging to the Plan members that was affected by the government’sexercise of discretion, but that the way the government exercised its discretion had an effect on the practical interests of the Planmembers.

It appeared to her that the exercise of discretion led to the employees having to contribute more towards the cost of theirpensions. However, the core question was whether “given all the surrounding circumstances, one party could reasonably have expectedthat another would act in the former’s best interests” (para. 94). In this case, she concluded, it would not be reasonable for Plan membersto expect the government to act in their best interests when exercising its discretion.

A fiduciary duty is unlikely to apply to the Crown,as it would create a conflict between the Crown’s responsibility to act in the public interest, on one hand, and its obligation to act in thebest interests of beneficiaries, on the other. [52] Gillese J.A. also held that a constructive trust should not be imposed. She found that it need not be imposed tosatisfy the requirements of good conscience, in view of the lack of an equitable obligation on the part of the government. Second, thegovernment was not enriched by the amortization and removal (pursuant to Bill C-78) of the actuarial surplus.

In her view, whateverbenefit there was to the amortization, it enured to all Canadian taxpayers. In any event, Bill C-78 was a juristic reason justifying anyremoval. [53] Accordingly, Gillese J.A. dismissed the appeal. Laskin and Juriansz JJ.A. concurred. IV. Issues [54] The issues in this appeal are: a. Did the Superannuation Accounts contain assets? b. Did the government owe a fiduciary duty to the Plan members? c. Should a constructive trust be imposed over the balances in the Superannuation Accounts as of March 31, 2000? d.

Did Bill C-78 authorize the government to debit the actuarial surpluses in the Superannuation Accounts? V. Analysis [55] This Court has considered the law related to pension plan surpluses on several occasions, but it has always done so inthe context of private sector pension plans. In this appeal, the Court must consider pension plan surpluses in the context of statutory,public sector pension plans. [56] Schmidt v. Air Products Canada Ltd., (SCC), [1994] 2 S.C.R. 611, is the leading statement of thelaw on pension plan surpluses.

That case establishes the principle that, in the absence of overriding legislation, the first step to assessing

competing claims to the surplus is to determine, in accordance with ordinary principles of trust law, whether the pension fund is impressed with a trust. If it is, all applicable trust principles apply. If, on the other hand, the pension fund is not subject to a trust, entitlement to the surplus will be assessed in accordance with the principles of contract

interpretation. [ 57 ] In Burke v. Hudson’s Bay Co. , 2010 SCC 34 , [2010] 2 S.C.R. 273, this Court affirmed Schmidt , along with Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678, and Monsanto Canada Inc. v.

Ontario (Superintendent of Financial Services) , 2004 SCC 54 , [2004] 3 S.C.R. 152, to the effect that entitlement to a pension plan surplus is “determined according to the words of the relevant documents and applicable contract and trust principles and statutory provisions” (para. 26). [ 58 ] At trial, the appellants advanced the argument that the Superannuation Acts created express trusts for the benefit of Plan members.

However, the trial judge rejected the express trust argument, and it has not resurfaced on appeal. [ 59 ] In this appeal, the appellants have based their arguments not on express trust, but on constructive trust. Their contention is that the Superannuation Accounts contain assets, and that the government is under an equitable (fiduciary) obligation in respect of its management of them. The appellants argue that the government breached its fiduciary duty by amortizing the surplus, and that this gives rise to a constructive trust over the assets in the Superannuation Accounts, in favour of the Plan members.

The appellants have also argued that a constructive trust should be imposed on the basis of unjust enrichment. As mentioned above, central to both of these arguments is the issue of whether the Superannuation Accounts in fact contained assets. If they did not, then there could be no equitable interest subject to a fiduciary duty, nor any unjust enrichment justifying a constructive trust. Accordingly, the first issue to address is whether the Superannuation Accounts contained assets. A.

Did the Superannuation Accounts Contain Assets? [ 60 ] Both courts below found that the Superannuation Accounts did not contain assets. At first instance, Panet J. rejected appellants’ expert evidence that the primary asset of each Account is a receivable from the government. He found that, in fact, the government had not borrowed from the Superannuation Accounts and that there were no amounts owing by the government to the Accounts. Rather, the Superannuation Accounts were no more than accounts maintained by the government to record and disclose its estimated pension liability.

At the Court of Appeal, Gillese J.A. found no error with this conclusion. In her view, “[i]n essence, the Superannuation Accounts are legislated ledgers” (para. 50). [ 61 ] While there is no question that the Superannuation Accounts are not pools of marketable securities, the appellants maintain that the courts below erred in not finding that the Accounts contain assets, namely, receivables owing from the government to the Accounts.

They submit that real money was contributed to the Accounts in each year, but, because the amounts were not invested externally, the government effectively borrowed this money from the Accounts for its own use — leaving promises to pay in the Accounts. These promises to pay, they say, are assets, much like Government of Canada bonds. [ 62 ] As I will presently explain, I agree with the respondent and the courts below that the Superannuation Accounts do not contain assets.

The Superannuation Accounts are no more than accounting records designed to track the operation of the Plans and to estimate the government’s future pension liabilities.

(1) The Superannuation Acts [ 63 ] The Superannuation Accounts are all established by statute and, therefore, an analysis of their nature must begin with the legislation. The current Superannuation Account for the Public Service Superannuation Plan is a continuation of the account established by the 1952 revision of the Civil Service Superannuation Act , R.S.C. 1952, c. 50 ( PSSA , definition of “ Superannuation Act ” in s. 3(1) and s. 4(2)). The 1952 Revised Statutes of Canada re-enacted, in turn, a provision that was originally found in

An Act to amend the Civil Service Superannuation Act , S.C. 1944-45, c. 34, s. 6, enacted by Parliament in 1944. [ 64 ] The Civil Service Superannuation Act , s. 21, provided that all funds collected and distributed pursuant to that Act flowed into, and out of, the CRF: 21.

(1) The moneys received under the provisions of this Act shall form part of the Consolidated Revenue Fund, and the moneys payable under the said provisions shall be payable out of the said Consolidated Revenue Fund. The CRF was defined to mean, at the relevant time, in The Financial Administration Act , S.C. 1951 (2nd Sess.), c. 12, s. 2( e ), assented to December 21, 1951, “the aggregate of all public moneys that are on deposit at the credit of the Receiver General”.

Section 21 of the Civil Service Superannuation Act further provided for a special account in the CRF, to be known as the Superannuation Account, for purposes of funds received and payable in respect of the Act:

(2) There shall be kept a Special Account in the Consolidated Revenue Fund, to be known as the Superannuation Account, of all moneys so received or so payable, and there shall be added to the said Account annually an amount representing interest, at such rate and calculated in such manner as the Governor in Council may by regulation prescribe, on the amount to the credit of such account. [ 65 ] The description of the Superannuation Account as a “Special Account in the Consolidated Revenue Fund . . . of all moneys so received or so payable ” describes accounting entries — a record of transactions relating to government pension plans reflected in credits and debits.

It is apparent from the statutory language that Parliament contemplated that the Account would reflect Plan-related transactions into and out of the CRF.

Considered together with the direction to receive all Plan-related moneys into the CRF, and to pay them out of the CRF, the language is consistent with accounting entries rather than with a direction to keep a separate, identifiable accumulation of assets. [ 66 ] As the current Superannuation Account is a continuation of the account established by the 1952 Revised Statutes of Canada (originally established legislatively in 1944), the current Superannuation Account continues to represent accounting entries reflecting, through credits and debits, superannuation Plan-related transactions into and out of the CRF.

[ 67 ] In this regard, I pause to remind that the Superannuation Account continues to exist notwithstanding the establishment in 2000 of the Pension Funds pursuant to Bill C-78. Benefits for pensionable service prior to April 1, 2000, are, generally, charged to the Superannuation Account and paid out of the CRF ( PSSA , s. 43). [ 68 ] The current FAA supports the view that all pension-related transactions are into and out of the CRF, and no money is deposited in or withdrawn from the Superannuation Accounts themselves.

The FAA provides that “all public money shall be deposited to the credit of the Receiver General”, and it defines “public money” as including “all money that is paid to or received or collected by a public officer under or pursuant to any Act . . . and is to be disbursed for a purpose specified in or pursuant to that Act” (ss. 17 and 2 ). Thus, while the PSSA no longer refers specifically to the Superannuation Account as being an account in the CRF, the scheme of the FAA provides that the moneys collected under the PSSA form part of the CRF.

Thus, the continuation of the 1944 Superannuation Account, an account in the CRF, is consistent with the financial administration legislation currently in force. [ 69 ] When Parliament first established the Superannuation Account, the intention was to create an accounting ledger to track the operation of the superannuation Plan. Not only does the Account record transactions into and out of the CRF, as I have explained, but the credit balance reflects an estimate of Canada’s future pension liability under the PSSA .

This is demonstrated by the fact that, when the Account is in deficit (i.e., is an understatement of the actuarial estimate of pension liabilities), the PSSA requires the government to record actuarial liability credits to bring the credit balance in the Account — through annual instalments, to spread out the impact on the Public Accounts — toward the actuarial estimate of the future pension obligation ( PSSA , s. 44(6) to (8) ). In this way, the Superannuation Account is useful from a financial reporting perspective.

And it explains why it is disclosed in the Public Accounts as a government liability. [ 70 ] While the above discussion focuses on the Superannuation Account applicable to the Public Service Superannuation Plan, the conclusions apply equally to the other two pension plans at issue on this appeal. The Canadian Forces Superannuation Account is a continuation of the Permanent Services Pension Account established in the accounts of Canada pursuant to the Defence Services Pension Act , R.S.C. 1952, c. 63, as it read before March 1, 1960. The Permanent Services Pension Account was earlier enacted pursuant to

An Act to amend the Militia Pension Act , S.C. 1946, c. 59, s. 6, and was described as “a Special Account in the Consolidated Revenue Fund”. Likewise, the RCMP Superannuation Account is a continuation of the Royal Canadian Mounted Police Pension Account established in the accounts of Canada pursuant to the Royal Canadian Mounted Police Act , R.S.C. 1952, c. 241, as it read before April 1, 1960. The Royal Canadian Mounted Police Pension Account was earlier enacted pursuant to

An Act to amend the Royal Canadian Mounted Police Act , S.C. 1947-48, c. 28, s. 10, and was also said to be “a Special Account in the Consolidated Revenue Fund”. [ 71 ] The legislation supports the finding that the Superannuation Accounts are accounting entries, rather than funded pools of assets.

(2) The “Borrowing Theory” [ 72 ] The appellants’ argument that the Superannuation Account contained assets did not rely on the contention that there was identifiable property in the Accounts that could be liquidated or sold. (This much was admitted by the appellants’ expert, John Christie, at trial, upon cross-examination: A.R., vol. III, at p. 142.) His theory (the “Borrowing Theory”) was instead, that “[t]he assets of the plan are a promise to pay from the government of Canada, a debt of the government of Canada” (A.R., vol. III, at pp. 142-43).

In his opinion, the assets consisted of the “promise to pay to the account the amount that was owed to it by the government of Canada” (p. 147). [ 73 ] Scott Milne (the appellants’ accountant) presented a similar opinion. He stated at trial that the government has effectively paid the money into the account, and then they have borrowed the money back from the account. So the end result is . . . that the pension account has a receivable from the government and the government has a payable to the pension account. [A.R., vol.

IV, at p. 48] [ 74 ] The trial judge rejected the expert evidence supporting the Borrowing Theory, and the Court of Appeal agreed. I see no reason to interfere with this finding. [ 75 ] The appellants argue, incorrectly in my view, that “if the Government did not borrow the amounts in the Superannuation Accounts, the only conclusion available is that it violated the PSSA by failing to contribute to the Accounts in the first place” (A.F., at para. 57).

They assert that the experts testified at trial that the only way for the government to have met its statutory obligations without actually transferring money into the Accounts was through the Borrowing Theory. The problem, however, is that this argument is premised on a legally incorrect

interpretation of the governing legislation. As already discussed, the Superannuation Accounts were — and are — legislated ledgers to track Plan-related CRF transactions and to estimate the government’s pension liabilities to Plan members.

In short, they are accounting records — that is to say, information — not repositories of assets capable of holding property. [ 76 ] For the appellants’ Borrowing Theory to hold together, it must be possible to say that the government was required to contribute property to the Superannuation Accounts, and that it was, in fact, borrowing this property back and depositing it into the CRF for public purposes. However, if the Superannuation Accounts are informational accounting records, as I have already concluded they are, this is manifestly impossible.

There can be no transfer of actual property to — or borrowing from — an informational record. The property is, and always was, elsewhere: viz., prior to April 1, 2000, the legislation contemplated that all property associated with the operation of the Plans was to be held in, and ultimately be paid out of, the CRF. Throughout the operation of the Superannuation Accounts, there was no intermediate step in which any property should have gone into the Accounts, only to be immediately borrowed back by the government. Not only were such “offsetting cheques” (A.R., vol.

IV, at p. 51) not contemplated by the legislation, but the trial judge also found as a fact that this is not how the government was operating the Accounts. Legislatively, the Accounts were informational records incapable of holding assets; in practice, they were treated as such. There was no borrowing from them; there was no debt owing to them; there was no property in them. [ 77 ] As I have said, the Superannuation Acts required the government to record accounting credits and debits to track the

operation of the Plans, and to pay the statutorily defined benefits to members out of the CRF. But they did not require the government to transfer assets into the Accounts, nor did they require the government to “borrow” from the Accounts or to place paperless government receivables in them to reflect this “borrowing”. The suggestion that any of this was statutorily required is not reflected in the relevant legislation. The Superannuation Accounts were intended to be, and were, part of the government’s accounting system.

Contrary to the appellants’ contention, the Accounts were not capable of holding assets. [ 78 ] The appellants also put before the Court various government documents and reports that refer to “borrowing” from the Superannuation Accounts. In the Auditor General’s 1991 report to the House of Commons, for example, it is stated that a substantial portion of the government’s budgetary deficit is financed through internal non-cash borrowing from specified purpose accounts (SPAs). . . .

These borrowings do not involve cash but rather result from a deferral of payments of contributions and interest owed by the government to the third parties on whose behalf the SPAs are administered. [A.R., vol. IV, at p. 233] [ 79 ] Similarly, it is written in the 1994 report of the Economic Analysis and Forecasting Division, entitled “Public Service Pension Review: The Macroeconomic Impacts of Investing in A Diversified Portfolio of Market Assets”: At present, the pension funds are, in effect, segmented off from the capital market. They constitute a pool of funds to which only the government has access.

The Government “borrows” from the fund and credits the fund with interest as if the borrowing was done exclusively through 20-year Government of Canada bonds. [A.R., vol. V, at p. 167] [ 80 ] It is important, however, to understand these references to “borrowing” in context. As the Treasury Board Secretariat explained in its response to the Auditor General’s 1991 report: “ The government does not borrow funds directly from the public service pension accounts to finance other spending activities.

The government has borrowed from the pension accounts only in the sense that by not raising money to invest required employee and government contributions in marketable securities it has not had to borrow money in the capital markets” (A.R., vol.

IV, at p. 237). [ 81 ] There is a difference between saying that the effect of the superannuation scheme operates as if the government were borrowing from the capital markets, without actually doing so — as the Treasury Board Secretariat explains — and saying the government is actually borrowing from the Superannuation Accounts, in the sense that a debt is owing to the Accounts (such that the Accounts hold government receivables). The legislation does not support the appellants’ contention that there was borrowing from the Accounts.

The superannuation scheme reflects “internal borrowing” only in the sense that it avoids, by design, the need for the external borrowing that would otherwise be required to finance the government’s pension obligations. [ 82 ] It remains only to dispose of the appellants’ reliance on Ermineskin Indian Band and Nation v. Canada , 2009 SCC 9 , [2009] 1 S.C.R. 222. In that case, this Court was concerned with the Crown’s obligations in respect of oil and gas royalties collected on behalf of Aboriginal bands.

The Crown deposited the royalties into the CRF and credited interest based on the market yield of long- term government bonds. Superficially relevant to this appeal is the discussion in that case of the Crown’s “borrowing” of royalty moneys. The bands argued that the Crown was in breach of its fiduciary duty because (1) a trustee is not permitted to borrow from a trust fund, and (2) by holding the royalties in the CRF for use by the Crown, the Crown was engaged in “forced borrowing” of the assets in the trust (para. 126).

This Court agreed that the “Crown is borrowing the bands’ money held in the CRF” (para. 127). However, it concluded that this practice was not a breach of the Crown’s fiduciary duty because the “borrowing” was required by legislation (para. 127). [ 83 ] It might be said that a similar type of “borrowing” is reflected in the present appeal. While the government owed future obligations to the Plan members (their statutorily defined benefits), it had the use of current funds in the CRF, including the amounts of employee contributions withheld from their pay cheques.

Likewise, by not having to withdraw funds from the CRF to satisfy its own contribution obligations, the government continued to have the use of funds that it would have otherwise had to set aside to invest in marketable securities. As already discussed, however, it does not follow from this “internal borrowing” that the Superannuation Accounts contain government receivables: the Superannuation Accounts are no more than legislated accounting records.

Ermineskin does not suggest otherwise. [ 84 ] Further, in Ermineskin , the Crown received royalty moneys “in trust” for the bands, and the Court concluded that the relationship between the Crown and the bands was “trust-like in nature” (para. 74). Upon collecting the royalty moneys, “in trust”, the Crown was statutorily required to retain them in the CRF (para. 127). In other words, the legislation required the Crown to take property that was subject to a “trust-like” fiduciary duty, collected on behalf of beneficiaries, and to deposit it into the CRF for public use.

It is accurate to describe this statutory scheme as involving the public “borrowing” of property from the “trust”. This is in contrast to the present case: the government did not undertake, expressly or impliedly, to act in the best interests of Plan members with respect to the actuarial surplus (discussed below). The Superannuation Accounts are just accounting records and they are not funds, nor are they “trust-like”, such that it is possible to borrow from them. [ 85 ] Accordingly, the courts below were right to reject the Borrowing Theory.

Panet J. correctly found that, “[i]n fact, there is no such borrowing and there is no amount owing by the government to the Superannuation Account of each plan” (para. 222).

(3) The Word “Assets” [ 86 ] The appellants point out that the Superannuation Acts and the PPRA use the word “assets” in connection with the Superannuation Accounts. [ 87 ] The PSSA 1954 required the reporting of “an estimate of the extent to which the assets of the said [Superannuation] Account are sufficient to meet the cost of the benefits payable under this Act” (s. 33).

The PPRA provides that the “Minister shall cause a certification of the assets of a pension plan established under the Canadian Forces Superannuation Act , . . . the Public Service Superannuation Act , [and] the Royal Canadian Mounted Police Superannuation Act . . . to be made and a report thereof to be filed” ( s. 8 ). The PPRA also refers to the “going concern assets” of the Plans (s. 7).

[88] These provisions pre-date Bill C-78, which amended the Superannuation Acts to make specific reference to thePPRA. From September 14, 1999, onward, the PSSA, for example, provided: 45.

In accordance with the Public Pensions Reporting Act, a cost certificate, an actuarial valuation report and an assetsreport on the state of each of the Superannuation Account, the Public Service Superannuation Investment Fund and the Public ServicePension Fund shall be prepared, filed with the Minister designated under that Act and laid before Parliament. [89] The appellants say that these legislative references mean that the Superannuation Accounts contain assets, in thesense that there is something of value in the Accounts to which the Plan members could have an equitable interest. [90] In my view, the word “assets” in the Superannuation Acts and the PPRA, when it is used in connection with theSuperannuation Accounts, refers to the credit balances reflected in the Accounts.

As discussed above, the actual moneys related topension contributions remained in the CRF until paid out to members, and the Accounts did not contain government debt. TheSuperannuation Accounts themselves reflect accounting credits and debits. Prior to Bill C-78, there was no mechanism in theSuperannuation Acts, or elsewhere, to direct payments into a separate pension fund. [91] Accordingly, the word “assets” in the legislation cannot indicate that the Superannuation Accounts contain anyproperty to which the Plan members could have an interest.

I would not, however, agree with the Court of Appeal’s suggestion that theParliamentary use of the word “assets” reflects “sloppy use of language” (para. 49). Rather, the word “asset” is being used in theSuperannuation Acts and the PPRA in a different sense: as Panet J. said in respect of the actuarial reports periodically submitted toParliament, the term “assets” refers to the credit balances in the Superannuation Accounts (para. 228). The same, in my view, applies tothe legislation. It is simply a matter of definition.

(4) Extrinsic Aids [92] The appellants rely on several representations by government to the effect that the Superannuation Accounts containassets. The authority to rely on such representations is found in Schmidt, where Cory J. stated: Documents not normally considered to have legal effect may nonetheless form part of the legal matrix within which therights of employers and employees participating in a pension plan must be determined.

Whether they do so will depend upon the wordingof the documents, the circumstances in which they were produced, and the effect which they had on the parties, particularly theemployees. [p. 669] [93] In Burke, however, this Court determined that, where the relevant articles in the plan documents were unambiguous,it was not necessary to consider surrounding documents (in that case, employer pension booklets) as interpretative aids. [94] Schmidt and Burke were decided in the private law context. As this case involves statutory plans, the considerationsare different.

Specifically, it is necessary to consider the law on extrinsic evidence in statutory

interpretation. [95] As this Court reiterated in Bell ExpressVu Limited Partnership v.

Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[i]t isonly when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of thestatute, that the courts need to resort to external interpretive aids” (para. 29 (emphasis deleted), quoting CanadianOxy Chemicals Ltd. v.Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743, at para. 14). [96] I have found that the Superannuation Acts require the Superannuation Accounts to operate like accounting records,tracking pension-related payments that are made into and out of the CRF.

The Accounts are not required by the Superannuation Acts tobe segregated, funded accounts, that receive or make any actual payments themselves; thus, the legislation does not require them tocontain assets. The language in the legislation is quite consistent: “assets” simply has a statutorily specific meaning, namely, the creditbalances in the Accounts.

However, even were it appropriate to look at extrinsic materials, they do not assist the appellants for thereasons that follow. [97] The appellants present documents that were produced years after the Superannuation Accounts were established.They have not pointed to documents coinciding with (or preceding) the creation of the Superannuation Accounts, which, as noted above,are continued by the current Superannuation Acts. [98] The appellants’ documents therefore reflect subsequent governments’

interpretations of previous Parliamentary work(United States of America v. Dynar, (SCC), [1997] 2 S.C.R. 462, at para. 45). However, as Cory and Iacobucci JJ.wrote in the context of subsequent legislative history, “in matters of legal

interpretation, it is the judgment of the courts and not thelawmakers that matters. It is for judges to determine what the intention of the enacting Parliament was” (para. 45). Accordingly, it isnecessary to be cautious when relying on the many subsequent government documents to which the appellants have referred the Court. [99] Further, Parliament, which created the Superannuation Accounts, is to be distinguished from the executive branch ofgovernment, which administers them. Although it is not impossible that governmental documents could assist in the

interpretation oflegislation, the words of subsequent government Ministers and bureaucrats offer minimal guidance in identifying Parliament’s intentionconcerning the Superannuation Accounts. [100] The appellants present one Parliamentary debate that took place prior to the enactment of Bill C-78. In February 1992,the President of the Treasury Board said, when introducing Bill C-55, that the “bill also proposes that all [superannuation] plans shouldhenceforth be operated on a fully funded basis” (House of Commons Debates, vol. VI, 3rd Sess., 34th Parl., February 24, 1992, at p.7486).

He went on to say that the Superannuation Acts would be amended to “consolidat[e] the assets and obligations in respect of each[sector]” (p. 7486). [101] However, Bill C-55, which was enacted as S.C. 1992, c. 46, did nothing to change the nature of any of theSuperannuation Accounts. The Accounts did not hold actual assets before 1992, and the amendments did not change this fact.

[ 102 ] The notion that Bill C-55 made the Superannuation Accounts “fully funded” is also found in the 1993 document “Treasury Board Secretariat and Department of Finance Study of the Implications of the Current and Alternative Methods of Financing Federal Public Service Pensions”.

With respect to the words “fully funded”, the document states: “Among other provisions of Bill C-55, the Superannuation Acts were amended to require, effective April 1991, that the plans be fully funded; that is, that contributions be made each month by the Government which, together with employee contributions and interest credits, are sufficient to provide for the cost of the benefits that have accrued in respect of that month” (A.R., vol. V, at p. 221). In other words, “fully funded” in this context refers to government contribution credits that must be made to record the cost of benefits accruing each month.

It does not refer to an identifiable fund of assets set aside to cover the government’s pension liabilities. [ 103 ] The appellants also present a Treasury Board document entitled “Basic Facts about Pensions in the Public Service of Canada”, dated October 18, 1976. The Treasury Board expressly denied that the Plans (other than indexation benefits) were “pay-as- you-go”. Rather, the Treasury Board said that the “basic pensions are fully funded in a government account” (A.R., vol. V, at p. 11).

The “Basic Facts” document explained the meaning of “fully funded” as follows: “This means that pensions are provided for in such a way that, if the Plan were suddenly terminated, the Account would, without further contributions but with future interest earnings, have sufficient credits to meet the pension payments . . .” (A.R., vol. V, at pp. 10-11). [ 104 ] The description of the Accounts as “fully funded” is also found in an undated pension booklet which was at one time given to federal employees (A.R., vol. V, at p. 83).

And, as in the Superannuation Acts , the language of “assets” can be found in various internal and external governmental documents (see e.g. “Public Service Pensions”, January 1970 (A.R., vol. V, at p. 5)). [ 105 ] While the government documents presented by the appellants use language stating that the Accounts contain assets, other government documents, presented by the government, support the argument that they do not.

The Auditor General has several times expressed — in his official observations on the Public Accounts — that the Superannuation Accounts are “unfunded pensions, in the sense that assets have not been set aside to pay for ultimate pension benefits” (“Supplementary Information: Observations by the Auditor General on the Financial Statements of the Government of Canada and the Statement of Transactions of the Debt Servicing and Reduction Account”, in Public Accounts of Canada 1997 (1997), vol.

I, 1.25, at p. 1.28; see also “Supplementary Information: Observations by the Auditor General on the Financial Statements of the Government of Canada, the Statement Required Under the Spending Control Act and the Statement of Transactions of the Debt Servicing and Reduction Account”, in Public Accounts of Canada 1996 (1996), vol.

I, 1.24, at p. 1.27). [ 106 ] Similarly, the Towers Perrin consulting report, “Return Expectations for the Public Service Superannuation Fund”, prepared for the Department of Finance and Treasury Board in 1993, states that, “[i]n the case of the PSSF [the “Public Service Superannuation Fund”], the plan is not ‘funded’ in the sense of an externally invested trust fund, but it is accounted for and actuarially treated as if it were” (A.R., vol. V, at p. 145 (emphasis added)).

In this document, the Plans are referred to as “notionally-funded”. [ 107 ] In my view, even if reference to extrinsic aids was appropriate, the extrinsic evidence available is inconclusive. Nor does it afford insight into the intention of Parliament when creating the Superannuation Accounts. Thus, I cannot give much weight to the documents presented by the appellants in their submissions. It would appear that, from time to time, government officials have inaccurately described the Superannuation Accounts in publications and internal communications.

(5) Conclusion on Whether the Superannuation Accounts Contain Assets [ 108 ] For the reasons given, I agree with the courts below that the Superannuation Accounts do not hold assets — not even the government receivables that the appellants suggest they contain. The Superannuation Acts created the Accounts to track Plan-related CRF transactions and to estimate the government’s pension liabilities to Plan members. In this way, they are accounting records, not funded and segregated pools of assets.

When the word “assets” is used in the legislation in reference to the Superannuation Accounts, it merely signifies their credit balances, not anything of value to which the appellants could have an interest. [ 109 ] The courts below were correct to reject the theory that the government borrowed from the Accounts, placing in them promises to pay by the government (the purported assets in the Accounts). This theory is inconsistent with the legislation in that it assumes that the government was required to contribute property into the Accounts in the first place.

As the Accounts are no more than accounting records, this would have been impossible. Prior to April 1, 2000, all of the real money associated with Canada’s pension scheme remained unsegregated in the CRF, until benefits were actually paid — out of

[…]