Applicant’s correspondence could not be treated as election when conditions of election were nowhere close to being met

Federal court | Pensions | Public service superannuation | General principles

Applicant was employed by company from 1989 to January 2010 when he was laid off after company obtained protection under Companies’ Creditors Arrangement Act (CCAA). While employed by company applicant was enrolled in its benefit pension plan. Company stopped contributing to pension plan as result of insolvency, and Superintendent of Financial Services of Ontario ordered that pension plan be wound up effective October 2010. As result of decision to wind up pension plan, members could not elect whether to receive deferred pension or transfer commuted value of pension to another investment vehicle until after wind up was completed, which was not until December 2016. In September 2010 applicant obtained employment with federal public service, he was enrolled in Public Service Superannuation Plan (PSSP), and one of terms of PSSP was that employees who had prior pensionable service with another employer may pay sum of money into PSSP in exchange for being credited with some or all of years of pensionable service with previous employer. In 2011, applicant alleged he elected to buy back his pensionable service with company in accordance with s. 6(1)(b)(iii)(F) of Public Service Superannuation Act (Act). Applicant was informed by PSSP officer he was not he was not permitted buy back his pension because he was not in position to surrender his pension entitlement. When applicant learned that windup of company’s pension plan was imminent he tried to finally implement buy back of his service, and in 2017 he asked pension director to validate his 2011 election pursuant to s. 8(5)(a) of Act, but pension director advised applicant that his request to buy back pensionable service in 2011 was void and his request for relief under s. 8(5)(a) of Act was refused. Applicant applied for judicial review. Application dismissed. Applicant must meet all five preconditions set out in s. 8(5) of Act, but he did not make election for purposes of s. 8(5)(a) of Act in requests he submitted in 2011. Applicant did not use statutory form required by s. 8(1) as Act required him to do. Words applicant used were not of someone making election, but of someone asking for consideration of something. Applicant was not ready or able to actually purchase buy back. Applicant could not surrender his pension as required by ss. 4(2) and 4(3) of Public Service Superannuation Regulations. Applicant’s correspondence could not be treated as election when conditions of election were nowhere close to being met. Applicant was not in position to make election, and he only became capable of making election when plan was removed from CCAA proceedings in 2016.

Proulx v. Canada (Attorney General) (2018), 2018 CarswellNat 3788, 2018 CarswellNat 4055, 2018 FC 761, 2018 CF 761, Henry S. Brown J. (F.C.).

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