Armbruster v Barrett, 2020 SKCA 140

Court of Appeal for Saskatchewan Docket: CACV3647 Citation: Armbruster v Barrett , 2020 SKCA 140 Date: 2020-12-23 Between: Clint Cory Armbruster Appellant (Respondent) And Kerry Granvel Barrett Respondent (Petitioner) Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Leurer On appeal from: DIV 579 of 2011, Queen’s Bench, Regina Application heard: November 12, 2020 Counsel: Jim Vogel, Q.C., and Joanne Moser, Q.C., for the Appellant Peggy Benko for the Respondent Schwann J.A. I. Introduction [ 1 ] This appeal concerns the finality of a consent judgment and whether it is possible to revisit the terms of a consent judgment several years after its implementation. The parties settled issues of property division and spousal support following a pretrial conference before a Court of Queen’s Bench judge.

The terms of their agreement were reflected in minutes of settlement and a consent judgment [Judgment] that was taken out the following day. Pursuant to paragraph 6 of the Judgment, Mr. Armbruster was entitled to receive a portion of Mr. Barrett’s pension, divided at source, from November 15, 1997, to June 25, 2010, plus interest to date of transfer. [ 2 ] Six years after the Judgment, and several years after having received his share of the pension, Mr. Armbruster took issue with the calculation of the value of the pension arrived at by the pension plan administrator. Mr.

Armbruster applied to the Court of Queen’s Bench for an order directing the plan administrator to divide the pension using the value-added method of actuarial calculation, rather than the prorated service approach used by the administrator. [ 3 ] The Queen’s Bench judge who heard the matter characterized the relief sought by Mr. Armbruster as a request to open up or modify the Judgment. In light of the circumstances at hand, he found himself functus officio ; and, as such, decided that the court lacked jurisdiction to entertain Mr. Armbruster’s application. [ 4 ] Mr.

Armbruster appeals from that decision: Barrett v Armbruster (30 April 2020) Regina, DIV 579 of 2011 (Sask QB) [ Chambers Decision ]. II. Background [ 5 ] The parties lived together from 1997 to 2010 and married in 2006. They separated in 2010. Mr. Barrett petitioned for divorce and division of family property in 2011, with Mr. Armbruster responding with an answer and a counterpetition for spousal support. Pursuant to an order made in the Court of Queen’s Bench on February 15, 2013, the application for divorce was severed from the remaining issues and judgment of divorce was granted as of that date.

This left the division of family property and spousal support for determination. The parties were able to resolve those issues at a pretrial conference before a Queen’s Bench judge and signed minutes of settlement to that effect. As it pertained to the pension issue, the minutes of settlement provide as follows: 1a. [Mr. Barrett’s] SGEU pension held with Desjardins Financial, shall be divided at source from November 15 1997 to June 25 2010 to include interest on that sum to date of transfer. 2.

The sum of 5000.00 from the net proceeds of the family home as referred to in paragraph 4 under the heading real property shall be held in trust to pay for any actuarial costs that may be necessary to divide [Mr. Barrett’s] SGEU pension. Should the cost exceed 5000.00 each party will pay 1/2 of the excess cost. Any unused portion shall be divided equally + returned to the parties. [Mr. Barrett] shall provide a copy of the Judgment to Desjardins Financial within 7 days of issuance of the Judgment. … Should there be any difficulties in implementing this Judgment either party may refer the matter back to Mr.

Justice Whitmore for further direction.

(Emphasis in original) [6] A consent judgment prepared by Mr. Armbruster’s counsel issued the following day. It tracked the language of the minutes ofsettlement: 6. Each party shall retain all pensions and RRSP’s held in his own name free from any claim by the other accepting that: a. The Petitioner’s SGEU pension, held with Desjardins Financial, shall be divided at source from November 15, 1997 to June 25, 2010and shall include interest on that sum to date of transfer. b.

The sum of $5,000 from the net proceeds of the family home as referred to in paragraph 2 under the heading Real Property, above, shallbe held in trust at Andrews Benko & Associates to pay for any actuarial costs that may be necessary to divide the Petitioner’s SGEUpension. Should the cost exceed $5,000 each party shall pay one half of the excess cost. Any unused portion of the held back funds shallbe divided equally and paid to the parties. c. The Petitioner shall provide a copy of this Judgment to Desjardins Financial within seven (7) days of issuance of the Judgment. … 14.

Either party is free to refer the matter back to Mr. Justice P.A. Whitmore for further direction should there be any difficulty inimplementing this Judgment. [7] Mr. Barrett provided a copy of the Judgment to his pension plan administrator, Desjardins Financial [Desjardins], in May of2013 and Desjardins submitted it to its support team for analysis. On October 4, 2013, Mr. Barrett’s legal counsel sent the sum of $800 tothe Public Employees Benefit Agency to cover the cost of the actuarial calculation for the pension. [8] Desjardins determined that Mr. Armbruster’s share of the pension was $135,667.65.

This sum was transferred toMr. Armbruster’s financial institution on September 19, 2014. Mr. Armbruster accepted those funds without objection or reservation.Shortly after receipt of the funds, Mr. Armbruster’s legal counsel requested an explanation from Desjardins concerning its calculation.Desjardins responded on December 12, 2014. There is nothing on the record that shows Mr. Armbruster followed up with Desjardins ortook issue with the calculation at that time. On June 22, 2015, Mr. Armbruster received his share of the balance of the funds that were heldin trust ($2,100) for actuarial costs. Once again, Mr.

Armbruster took those funds without objection or reservation. [9] Mr. Armbruster retained different counsel in September of 2015. His new counsel wrote to Desjardins, on September 28, 2015,asserting that Mr. Barrett’s pension was a defined contribution plan and that Desjardins had therefore erred in its method of calculation.He asked for a calculation of the actual value as of the dates set out in the Judgment, and, as he put it, “Once we have those numbers, it isa simple arithmetic exercise to determine the divisible portion”. [10] In response, on October 23, 2015, Desjardins informed Mr.

Armbruster’s counsel that, contrary to his assertion, Mr. Barrett’spension was a defined benefit plan and that it stood by its earlier calculation. Legal counsel for Desjardins provided a detailed explanationfor why it used the prorated service approach to value Mr.

Barrett’s pension, noting that it took particular guidance from the SupremeCourt decision in Best v Best, (SCC), [1999] 2 SCR 868: “Generally speaking, however, the pro rata method yields avaluation of a defined benefit pension that is fairer than the valuation produced by the value-added method” (at para 87). [11] Unsatisfied with the Desjardins response, Mr. Armbruster brought an application to the Court of Queen’s Bench a year later inOctober of 2016 for the following relief: 1. An order joining Desjardins Financial Security Life Assurance Company (“Desjardins Financial”) as a party to the within action. 2.

An order Directing the Desjardins Financial disclose valuation of the Petitioner’s SGEU pension as of the date of commencement of thespousal relationship, being November 11, 1997, and as of the date of petition, being June 25, 2010. 3. An order directing Desjardins Financial shall divide the Petitioner’s SGEU pension at source from November 15, 1997 to June 25,2010, including interest on that sum to the date of transfer, shall be calculated according to the value added method of actuarialcalculations. [12] Mr.

Armbruster eventually abandoned the first two grounds of his application and proceeded as if this dispute was solelybetween the parties concerning pension valuation. Although Mr.

Armbruster did not specifically seek an order directing the matter back topretrial conference for the purposes of dealing with the methodology for pension valuation, this option was pressed by his counsel at thetime of the Court of Queen’s Bench Chambers hearing. [13] The Chambers judge who heard the matter candidly admitted that he was initially drawn to the idea of a resumption of thepretrial conference on the conceptual footing that Mr. Armbruster’s application was an effort to enforce the terms of the Judgment. Uponreflection however, the Chambers judge found that Mr.

Armbruster’s application was an attempt to challenge the Judgment itself. Heconcluded by stating the following: “If the Court was persuaded that the ‘value-added method of actuarial calculation’ was the preferredapproach to be taken, that could only be ordered … through a modification of the consent judgment terms” (Chambers Decision at para 9) [14] Having reached that conclusion, the Chambers judge went on to consider whether Mr. Armbruster’s position ran afoul of thedoctrine of functus officio.

He summarized the applicable law in these terms: [11] The doctrine of functus officio originates from a 19th-century decision of the English Court of Appeal in Re St. Nazatre, (1879), 12Ch. D. 88. It has come to mean that, where a court formally issues a final judgment, with no ongoing obligations, that court has nojurisdiction to reopen or amend the judgment except in two instances. One instance is where there has been a slip or mistake in thedrawing up of the judgment. In such an instance, the slip can be corrected by a corrigendum.

The second instance is where there has beenan error in expressing the manifest intention of the court. The Supreme Court of Canada essentially confirmed this meaning in subsequent

decisions, such as Reekie v Messervey, (SCC), [1990] 1 SCR 219 (SCC), at pp. 222–23 and Doucet-Boudreau v NovaScotia (Department of Education), 2003 SCC 62, [2003] 3 SCR 3 (SCC) [Doucet-Boudreau] at paras. 77–79. [15] While the Chambers judge recognized that the Judgment could have been worded differently, he nonetheless found that “thewording actually used [was] not unheard of or uncommon, particularly after pretrial conferences” (at para 14).

Finally, the Chambersjudge observed that when wording such as this is used, the remedy for a dissatisfied party is against the pension carrier through an actioncommenced by statement of claim. In the end result, the Chambers judge was satisfied that, pursuant to the wording of the Judgment, andthe pension division that had taken place, the Court was functus officio. Accordingly, Mr. Armbruster’s application was dismissed withcosts. [16] Before turning to Mr. Armbruster’s arguments, I wish to draw attention to several other salient facts. First, although Mr.

Barrettconcedes that the parties had contemplated the need for actuarial advice at the pretrial conference in order to calculate pension division, ashe averred in his affidavit, and contrary to Mr. Armbruster’s position on the application, at no time did he seek an actuarial valuation basedon the retirement method of valuation. Mr. Barrett’s evidence was uncontested. Second, prior to their separation, Mr. Barrett’s job hadbeen terminated and, as such, he was no longer employed. The pension that was the subject of division had been terminated in 2009.Third, when the parties separated in 2010, Mr.

Barrett was 52 years of age. He was not retired nor was he eligible to retire. III. Analysis [17] Mr. Armbruster advances a two-pronged argument on appeal, both prongs of which can be conveniently addressed together. [18] First, Mr. Armbruster argues that by determining his application on the doctrine of functus officio, he was denied basicprocedural fairness. Since this issue had not been raised at the time of the Chambers hearing, he maintains that he had no opportunity to beheard on whether that doctrine applied to the circumstances at hand.

Had he been afforded the opportunity to respond to the possibilitythat the Court might be functus, Mr. Armbruster says he would have directed the Chambers judge’s attention to the wording of theJudgment that explicitly allowed the parties to return to the pretrial judge. Mr. Armbruster draws support for this argument from Rule 1-4(2) of The Queen’s Bench Rules, which he says obliges judges to provide parties with notice of a remedy and be given an opportunity torespond if the remedy under consideration is not one that had been claimed or sought by the parties. [19] On first blush, there is some attraction to Mr.

Armbruster’s position. In Kirk v Kirk, 2017 SKCA 97, [2018] 1 WWR 123[Kirk], this Court recognized that Rule 1-4(2) expressly preserves and acknowledges the rights of parties to be heard: “Rule 1-4 empowersa judge to grant a remedy that has not been claimed or sought but only if (

a) notice of his or her intention in this regard has been given tothe parties, and (

b) the parties had been afforded an opportunity to respond” (emphasis in original, at para 28). [20] This Court went on in Kirk to identify the underlying principles that animate Rule 1-4(2): [29] This important qualifier on a judge’s right to grant unsolicited remedies reflects the principle that a fair hearing is one where theparties know the case they have to meet and have an opportunity to present evidence and make submissions in relation to it. This is afundamental concept and it cannot be sacrificed in the quest for efficiency or the speedy resolution of disputes.

Finally, Kirk affirmed the caution provided by Canada (Attorney General) v King (1997), (NB CA), 187 NBR (2d)185: “Judges must resist the temptation to raise new issues, particularly those that are determinative, without giving the parties anopportunity to respond” (at 196). See also Onion Lake Cree Nation v Stick, 2020 SKCA 101. [21] For his part, Mr. Barrett argues the Chambers judge made the only decision that was open to him in light of what had transpiredafter the Judgment was taken out.

Because the Judgment was a final order, not appealed and fully implemented, he contends the Chambersjudge had no option but to find himself functus. This was the only logical conclusion he could come to. As such, says Mr. Barrett, therewas no room to vary the terms of the Judgment as Mr. Armbruster had urged the Chambers judge to do or to remit the matter to a pretrialconference. [22] It is common ground that neither party expressly raised the doctrine of functus officio by name in the written material that wasfiled with the Court of Queen’s Bench. Even so, there is support for the suggestion that Mr.

Barrett had put this very proposition to theChambers judge in the form of the following argument in his brief of law: [16] It is respectfully submitted that [Mr. Armbruster’s] Application be dismissed with costs payable to [Mr. Barrett]. He provided theJudgment to Desjardins as ordered, facilitated the actuarial calculation by Desjardins also in accordance with the judgment. He ensuredpayment of the report was made and consequently a large sum of over $135,000.00 was transferred to [Mr. Armbruster’s] financialinstitution on September 19, 2014. [17] [Mr.

Armbruster] did not reject these funds and now, more than three and a half years after the Judgment was issued, seeks to revaluehis entitlement to [Mr. Barrett’s] pension. [18] Of note is that paragraph 14 of the Judgment provides that [“]Either party is free to refer this matter back to Mr. Justice Whitmore forfurther direction …”. [Mr. Armbruster] did not dispute the Desjardins method of calculation at any time until he commenced hisapplication three and one half years later, nor did he seek to return the matter to Pre-Trial which he could have chosen to do. Further,[Mr.

Armbruster] in his Application asks to add Desjardins as a party to the action and that a “retirement valuation” be prepared by hisactuary. Although, counsel has been provided with the information they sought to have their actuary prepare another valuation, they haveadvised that they will not now do so. In any event, [Mr. Barrett] would have opposed a valuation employing the retirement method. [23] Mr.

Barrett’s position before the Chambers judge, as it is on appeal, is that the Judgment was final and fully implemented.There was no slip or mistake in drawing up the Judgment, which, incidentally, had been prepared by Mr. Armbruster’s counsel.Mr. Barrett submits that if Mr. Armbruster had any concern about the methodology for pension valuation, he should have addressed thatissue at the time of the pretrial conference, appealed the Judgment or brought a timely application to modify the Judgment. Not only did

Mr. Armbruster fail to take any of those measures, says Mr. Barrett, he acted in a contrary manner by accepting the pension funds and trust money without reservation and raising no issue whatsoever after he was provided with Desjardins’s detailed calculation in December 2014. [ 24 ] I agree with Mr. Barrett’s argument. Furthermore, while paragraph 14 of the Judgment permitted the parties to return the matter to the pretrial judge for further direction, that possibility was only to occur if they experienced “any difficulty in implementing the Judgment” (emphasis added).

As evidenced by their actions, the parties experienced no such difficulty. By the time Mr. Armbruster’s application came before the Chambers judge, the Judgment had long since been implemented. [ 25 ] In light of the facts and state of play before him, the Chambers judge came to the only logical conclusion that was open to him, which, as he said, was evident from Mr. Barrett’s position. While it is true neither party expressly referred to the doctrine of functus officio by name, from the tenor of Mr. Barrett’s position it should have been clear to Mr.

Armbruster that he was arguing the Judgment was final and fully implemented. In light of all of this, the Chambers judge simply attached the correct nomenclature to Mr. Barrett’s argument about the finality of the proceedings. [ 26 ] Viewed in this context, Mr. Armbruster was not denied procedural fairness. [ 27 ] Before leaving the procedural fairness issue, I wish to briefly comment on the suggestion that the Chambers judge improperly relied on Rapp v Baumann , 2019 SKQB 211 [ Rapp ], which was a decision that came out while this matter was under reserve. Mr.

Armbruster argues that, had he been alerted to the potential application of this decision, he would have been able to address whether it was distinguishable on its facts. [ 28 ] I see nothing to this argument. The Chambers judge did no more than identify Rapp as a “helpful review of Saskatchewan jurisprudence” (at para 12) that he had already summarized in the preceding paragraph. He understood Rapp turned on its specific facts and that it was a matter coming from trial where a formal judgment had not yet been taken out.

The Chambers judge did not say that was the only circumstance where a judge would continue to have jurisdiction to correct the valuation and division of family property. [ 29 ] Next, Mr. Armbruster argues the Chambers judge ignored the clear wording contained in both the minutes of settlement and the Judgment, which allowed the parties to return the matter to the pretrial judge. In his view, given that specific wording, the Chambers judge had no authority to ignore or override this direction. Mr.

Armbruster goes on to suggest that since the parties had not agreed to the methodology for valuing the pension, the Chambers judge deprived him of the right to have that issue determined and thereby have the pension properly calculated. Finally, he argues that he has a right under common law and The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , to have that term of the Judgment enforced. [ 30 ] There are several problems with Mr. Armbruster’s argument. Let me address the most obvious one. [ 31 ] As discussed above in relation to the procedural fairness ground of appeal, Mr.

Armbruster completely drives past the facts of this case. Notably, by accepting his share of the pension in 2014, without exception or reservation, Mr. Armbruster must be taken to have accepted that it had been properly calculated and divided. If he thought the division was incorrect, after having received the breakdown from Desjardins, he should have asked to have the matter returned to the pretrial judge at that time. He did not. In light of how things played out, it is hard to see how Mr. Armbruster’s own actions do not evince full and complete implementation of the Judgment. In other words, Mr.

Armbruster’s actions rendered paragraph 14 of the Judgment spent; and, as such, there was nothing left to implement or enforce. In the end result, the Chambers judge did not err in proceeding as he did. [ 32 ] With regard to Mr. Armbruster’s suggestion the Chambers judge should have directed the matter back to pretrial conference, I note the following: (

a) his notice of application did not request this specific relief, and (

b) a return to the pretrial conference would have been for no obvious purpose because there was nothing left to litigate in terms of the Judgment. [ 33 ] Finally, I wish to touch on Mr. Armbruster’s argument that the wording “divided at source” is ambiguous and, as such, he should be given the opportunity to have its meaning refined through the judicial process. Mr. Armbruster says he never agreed to this terminology. [ 34 ] The problem with Mr. Armbruster’s argument is that he did agree to that wording.

His agreement is reflected in the minutes of settlement and in the Judgment, with the latter document drafted by his legal counsel. Second, even if this wording is ambiguous, the fact of the matter is Mr. Armbruster acted on its terms but now argues he should be able to pursue judicial relief because he acted to his detriment. Mr. Armbruster was unable to refer this Court to any authority that stands for the proposition that a party can relitigate an ambiguous term in a consent judgment after the consent judgment has been fully implemented. [ 35 ] I wish to make one final point. Mr.

Armbruster’s underlying substantive argument is that the pension should have been divided using the retirement method of calculation. Without resolving this issue, that argument does not strike me as being particularly strong in light of the facts of this matter. Mr. Barrett’s employment had been terminated prior to separation and his rights in relation to the pension plan had ceased on termination from that employment. Mr. Barrett was only 52 at that time. He had not retired nor was he eligible to retire. IV. Conclusion [ 36 ] Mr. Armbruster’s appeal is dismissed with costs to Mr.

Barrett in the usual way. “Schwann J.A.” Schwann J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Leurer J.A.”

Leurer J.A.