Regulation, Cases for Legal Research

Regulation, Cases for Legal Research

Order Description
This assignment need citations if you use any references.
Multiple Choice (5 marks)

Cases are the third primary source of law. Just as with statutes and regulations, it is important that you know how to read and understand case law. (1/2 mark each)

1. Case law is a

a. written record of a judge?s decision

b. written record of an adjudicator?s decision

c. written record of a
decision by the person before whom the matter is heard
d. written decision of the findings of a matter

2. Two main parts of a proceeding are

a. plaintiff and defendant

b. applicant and respondent

c. facts and issues

d. evidence and legal argument

3. Researching case law is used when advising or advocating on behalf of a client because

a. it may have useful or essential legal information related a client matter

b. it is always binding on a decision-maker

c. it is always binding on the other party

d. it determines what the client?s cause of action will be

4. A headnote of a case precedes the other elements of a published case. The headnote is written by the

a. decision-maker

b. judge

c. editor

d. adjudicator

The elements of a published case are the purpose, facts, issues, law, ratio decidendi, decision, and disposition.

5. The purpose section of a case is

a. a statement of terms related to the case

b. an action statement

c. a statement of the nature of the proceedings

d. the theory of the matter being heard

6. The issues of the case must be dealt with in order for a decision to be made. Issues are

a. the nature of the proceedings

b. the legal questions that must be answered by the decision-maker

c. a problem to be decided

d. the events that led to the cause of action

7. The decision-maker will usually discuss the law on the issues identified. This includes lines of authority presented and relied upon by each side. Lines of
authority include

a. both primary and secondary source law

b. only well-known law

c. only appeal cases

d. only cases that support one side

8. The ratio decidendi is Latin for ________________. It is a combined statement of a pre-existing principle of law and the application of the principle to the facts.

a. ?in my view?

b. ?reason for deciding?

c. ?reasons for disposition?

d. ?in this case?

9. The disposition is

a. a ?judgment for the defendant?

b. a motion of summary judgment granted

c. filed by a certain date as defined in the case

d. the judge?s orders set out at the end of the case

10. Cases may be reported in more than one law report series. When citing in this circumstance, use the __________ citation method.

a. neutral

b. secondary

c. parallel

d. tertiary

Exercises (4 marks)

1. The citation of a case gives you essential information about the case including where to find it. A typical citation is made up of the following components: style
of cause, year, abbreviated law reporter information, name of law report series, law report series number, page number, jurisdiction, and court. Read the following
citations and identify what each component is (2 marks):

Scaini v Prochnicki (2007), 85 OR (3d) 179 (CA)

Replar v Johnson, [1980] 2 SCR 193

2. During some recent research, Vandana found several related cases. She is working from her notes. Using the information below, cite each case correctly (2 marks).

a. The case Demon v Charles on page 681 in volume 31 of the second edition of the Ontario Reports decided in 1990. The case was heard in the Ontario Superior Court of
Justice.

b. The case of Regina v Collins decided in 2010 found on page 101 in volume 28 of the Canadian Criminal Cases. The case was heard in the Provincial Court of British
Columbia.

Case Review (6 marks)

3. Read the following case and answer the related questions found below the case. (1 mark each)

King v. King (also known as Raines) et al.

[Indexed as: King v. King]

103 O.R. (3d) 156

2010 ONSC 6271

Ontario Superior Court of Justice,

Cornell J.

November 25, 2010

Family law — Domestic contracts — Separation agreement containing release by wife of any claim or interest in husband’s OMERS pension — Release not mirroring
“prescribed form” referred to in s. 46(1) of Pension Benefits Act — Release not sufficient to constitute waiver of wife’s entitlement to survivor’s pension under s.
46(1) of Act — Pension Benefits Act, R.S.O. 1990, c. P.8, s. 46(1).

Pensions — Survivor’s benefits — Waiver — Separation agreement containing release by wife of any claim or interest in husband’s OMERS pension — Release not
mirroring “prescribed form” referred to in s. 46(1) of Pension Benefits Act — Release not sufficient to constitute waiver of wife’s entitlement to survivor’s pension
under s. 46(1) of Act — Pension Benefits Act, R.S.O. 1990, c. P.8, s. 46(1).

The parties entered into a separation agreement in 1992 which contained a release by the respondent of any claim or interest in the applicant’s OMERS pension and a
provision requiring the parties to execute any documents required to give effect to the terms and intent of the agreement. The applicant remarried. He brought an
application for a declaration that the respondent had waived her entitlement to his OMERS survivor’s pension.

Held, the application should be dismissed.

The “first instalment” of the pension within the meaning of s. 44(1) of the Pension Benefits Act was due in January 1992, when the applicant retired. The respondent
was his spouse at that time. Accordingly, the pension became a “joint and survivor pension” within the meaning of s. 44 of the Act. The release contained in the
separation agreement, coupled with the requirement that each party would execute any documents required to give effect to the terms of the agreement, was not
sufficient to satisfy the exemption requirements created by s. 46(1) of the Act as the release did not mirror the “prescribed form” referred to in s. 46(1). In view of
the failure to strictly comply with the Act, the applicant was unable to make use of the exemption created by s. 46(1). [page157]

APPLICATION for a declaration that the respondent had waived entitlement to the survivor’s pension.

Cases referred to Smith v. Casco Inc., [2010] O.J. No. 2048, 2010 ONSC 2584 (CanLII), 264 O.A.C. 164, 319 D.L.R. (4th) 641 (Div. Ct.), consd Other cases referred to
Kendall v. Canadian Multi Employer Retirement Fund for the Graphic Arts Media, [2008] O.J. No. 4711, 71 C.C.P.B. 233, 172 A.C.W.S. (3d) 780 (S.C.J.); Smiley v. Ontario
(Pension Board), 1994 CanLII 7505 (ON SC), [1994] O.J. No. 1674, 116 D.L.R. (4th) 337, 6 C.C.P.B. 166, 4 R.F.L. (4th) 275, 48 A.C.W.S. (3d) 861 (Gen. Div.) Statutes
referred to Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 1(1) [as am.], 44 [as am.], (1) [as am.], 46 [as am.], (1) [as am.] Rules and regulations referred to R.R.O.
1990, Reg. 909 (Pension Benefits Act), Form 3 [rep. 144/ 00, s. 33]

Richard Guy, for applicant.

Jerome C. Gardner, for respondent Marlene King.

No one appearing, for respondent OMERS.

[1] CORNELL J.: — This is an application brought by Robert King (“Mr. King”) for a declaration that his former wife, Marlene King (now Raines) (“Mrs. Raines”), has
waived her entitlement to his OMERS survivor’s pension. For the reasons which follow, the application is dismissed.

Issue

[2] The narrow issue in this case is whether a general pension release in a separation agreement is sufficient to constitute a waiver of Mrs. Raines’ entitlement to
Mr. King’s survivor’s pension.

Facts

[3] Although served with the material, OMERS filed a letter indicating that they would not be appearing as they would abide by the outcome of the application, provided
no costs were awarded against them.

[4] Robert King and Marlene Raines were married on December 28, 1983. They separated on July 16, 1992. Mr. King retired on January 31, 1992, with a result that his
pension was in pay at the date of separation.

[5] The parties entered into a Separation Agreement dated November 24, 1992.

[6] Paragraph 14 of the Separation Agreement provides as follows: [page158]

14. SAVINGS PLANS, R.R.S.P. PLANS AND PENSION PLANS

(a) The husband shall be entitled to the sole use, ownership and benefit of all savings accounts, R.R.S.P. accounts, and pension plans registered in his name as at the
date of the separation, free of any claim or interest therein by the wife. Included in such assets are the husband’s OMERS Pension Plan, any GIC’s and term deposits
registered in the husband’s name, and any bank accounts and R.R.S.P.s registered in the husband’s name.

[7] Paragraph 24 of the Separation Agreement provides:

24. GENERAL

(a) The husband and wife will each execute any documents required to give effect to the terms and intent of this agreement.

[8] Mr. King remarried. As part of his estate plan, he wrote to OMERS to appoint his new wife, Dominique Viau, as his beneficiary and to seek confirmation that his
survivor’s pension would be paid to his new wife. OMERS replied by letter indicating that the Separation Agreement “does not clearly state that each party, or
particularly a former spouse, relinquishes their entitlement to survivor benefits as eligible spouse that took effect when the pension first commenced”. The OMERS
letter went on to indicate that if OMERS Form 156 were to be completed by Mrs. Raines and returned to OMERS, they would accept that as sufficient evidence that she had
relinquished her right to a survivor benefit. Mrs. Raines refused to sign such form, with the result that Mr. King arranged for this application to be brought.

[9] In support of his position, Mr. King filed material indicating that he had never named Mrs. Raines as the beneficiary of any of his OMERS benefits at any point in
time.

The Law

[10] The statutory framework for the issue raised in this application is contained in the Pension Benefits Act, R.S.O. 1990, c. P.8 (the “Act”):

1(1) In this Act, . . . “joint and survivor pension” means a pension payable during the joint lives of the person entitled to the pension and his or her spouse and
thereafter during the life of the survivor of them; . . . . .

44(1) Every pension paid under a pension plan to a former member who has a spouse on the date that the payment of the first instalment of the pension is due shall be a
joint and survivor pension. . . . . .

46(1) The persons entitled to a joint and survivor pension benefit may waive the entitlement to receive payment of pension benefits in the form of a joint and survivor
pension by delivering to the administrator of the [page159] pension plan . . . a written waiver in the form approved by the Superintendent or a certified copy of a
domestic contract, as defined in Part IV of the Family Law Act, containing the waiver.

[11] Section 44 of the Act is a mandatory provision which establishes a joint and survivor pension where a former member has a spouse on the date that the payment of
the first instalment of the pension is due. The interplay between s. 44 and s. 46 of the Act was considered by the Divisional Court in Smith v. Casco Inc., 2010 ONSC
2584 (CanLII), [2010] O.J. No. 2048, 319 D.L.R. (4th) 641 (Div. Ct.) (“Smith”). Speaking for the majority, Matlow J. held, at paras. 38-39:

However, in spite of this mandatory provision, section 46(1) of the Act creates an exemption to allow persons entitled to a pension benefit to waive this mandatory
provision by delivering, in the context of this case, “a written waiver in the form approved by the Superintendent” It reads as follows:

The persons entitled to a joint and survivor pension plan may waive the entitlement to receive payment of pension benefits in the form of a joint and survivor pension
by delivering to the administrator of the pension plan or, in the case of a deferred life annuity, to the insurance company a written waiver in the form approved by
the Superintendent or a certified copy of a domestic contract, as defined in Part IV of the Family Law Act, containing the waiver.

There can be little doubt that the Legislature mandated the use of the approved form to ensure that the exception to the normal benefit prescribed by section 44(1) of
the Act could be obtained only if the prescribed preconditions were strictly satisfied.

[12] The court then went on to compare the language of the FSCO Form 3 and the form used by the defendant. Although the forms were quite similar and covered the same
subject matter, the court found that the Casco form was “substantially different” than the form approved by the superintendent (at para. 44). This case underscores the
need to use the form approved by the superintendent in order to take advantage of the exception created in s. 46 of the Act.

[13] Section 44(1) of the Act refers to “payment of the first instalment of the pension”. During the course of argument, the question arose as to whether that phrase
referred to the date upon which Mr. King began to receive his pension or whether the phrase referred to the date when the first payment was made under the survivor’s
pension. This issue was considered in Smiley v. Ontario (Pension Board), 1994 CanLII 7505 (ON SC), [1994] O.J. No. 1674, 116 D.L.R. (4th) 337 (Gen. Div.). In that
case, Speyer J. stated, at p. 343 D.L.R.:

In interpreting s. 44 of the PBA., I make the following two findings: first, the crucial date being spoken of is the date that the pensioner, in this case Mr. Smiley,
is entitled to his first instalment of the pension. It is not the date when the spouse’s pension would commence. Such latter interpretation would distort what I
believe to be the clear meaning of the section. Secondly, [page160] Mrs. Smiley was the spouse of the pensioner on the date the first instalment of pension was paid to
Mr. Smiley. Further support for this interpretation can be found in Kendall v. Canadian Multi Employer Retirement Fund for the Graphic Arts Media, [2008] O.J. No.
4711, 71 C.C.P.B. 233 (S.C.J.).

Analysis

[14] The “first instalment” within the meaning of s. 44(1) of the Act was due in January of 1992, when Mr. King retired. Mrs. Raines was his spouse at that time. That
being so, Mr. King’s pension became a “joint and survivor pension” within the meaning of s. 44 of the Act.

[15] The question then arises as to whether the release contained in para. 14 of the Separation Agreement, coupled with the requirement in para. 24 of the Separation
Agreement that each party would execute any documents required to give effect to the terms of such agreement, is sufficient to satisfy the exemption requirements
created by s. 46(1) of the Act. In 1992, when the Separation Agreement was signed, the “prescribed form” referred to in s. 46(1) of the Act was designated as Form 3,
R.R.O. 1990, Reg. 909.

[16] Paragraph 14 of the Separation Agreement does not mirror Form 3 in any respect. In view of the failure to comply strictly with the statute, Mr. King is unable to
make use of the exception created by s. 46(1) of the Act: see Smith, supra.

[17] Given the language of para. 14 of the Separation Agreement and the specific reference to the “husband’s OMERS Pension Plan”, it is understandable that Mr. King
would well believe that his former spouse had given up any interest that she might have had in his survivor’s pension. However, given the mandatory requirement that in
order for the waiver to be valid, the prescribed form must be used, Mr. King has found himself in the unfortunate position of being caught in a trap for the unwary.

Costs

[18] Costs shall follow the event on a partial indemnity scale. If the parties are unable to agree on costs, the respondent shall file her submissions within 15 days.
The applicant shall have 15 days from such date to file responding material. All submissions shall be less than two pages, exclusive of time records.

Application dismissed.

1. Provide a citation for the case as it would be found in the Ontario Reporter.

2. What is the question (the issue) before this court that must be answered?

3. What is the procedural history of this case?

4. What does the decision in this case say about the requirements under the Pension Benefits Act to waive a survivor?s pension in relation to a separation agreement?

5. What does the headnote tell you about a release in relation to entitlement to survivor?s pension under section 46(1) of the Pension Benefits Act?

6. In court, could you rely on what you determined the headnote stated in relation to the above question? Why or why not?