Hawker Siddeley Canada Inc. v. Nova Scotia (Superintendent of Pensions)

Hawker Siddeley Canada Inc. v. Nova Scotia (Superintendent of Pensions) Court Court of Appeal Date 1994-03-15 Citation 1994 NSCA 91 Docket SCA 02581, SCA 02948 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Hart, Gordon L.S. (Honourable Justice); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content S.C.A. No. 02581 S.C.A. No. 02948 NOVA SCOTIA COURT OF APPEAL Cite as: Hawker Siddeley Canada Inc. v. Nova Scotia (Superintendent of Pensions), 1994 NSCA 91 Clarke, C.J.N.S.; Hart and Jones, JJ.A. BETWEEN: HAWKER SIDDELEY CANADA INC. ) Peter McLellan, Q.C. ) Hugh Wright ) for the Appellant Appellant ) - and - ) ) Ronald A. Pink, Q.C. THE SUPERINTENDENT OF PENSIONS ) Marian F. H. Tyson FOR THE PROVINCE OF NOVA SCOTIA ) Leanne W. MacMillan and THE UNITED STEELWORKERS ) for the Respondents OF AMERICA ) ) Respondents ) Appeal Heard: ) January 11, 1994 ) ) ) Judgment Delivered: ) March 15, 1994 ) ) ) ) ) ) ) ) THE COURT: Appeal dismissed from two decisions by Justices of the Supreme Court confirming orders issued by the Superintendent of Pensions (Nova Scotia), per reasons for judgment of Clarke, C.J.N.S., Hart and Jones, JJ.A. concurring. CLARKE, C.J.N.S.: At issue in this appeal is the validity of an order made by the Superintendent of Pensions whereby eighty-four employees of Hawker Siddeley Canada Inc., at its Trenton Works, became entitled to benefits provided by section 79 of the Pension Benefits Act, R.S. 1989, c. 340. Hawker Siddeley had a non-contributory pension plan for Unionized workers. It provided that the plan would be terminated "in the event of the sale to a purchaser at arm's length of all or substantially all of the business and undertakings" of Trenton Works. In March, 1987, Hawker Siddeley decided to sell Trenton Works. The employees were given notice to that effect. In October, 1987, to assist in attracting a buyer, the governments of Canada and Nova Scotia announced an early retirement program for employees. It was entitled, SUPPLEMENTAL OPTIONAL RETIREMENT PROGRAM. It was known as SORP. SORP was designed to encourage the retirement of older workers. It was thought a younger work force would make a sale more attractive. SORP provided a "bridging benefit" of one thousand dollars per month payable from the date of retirement to age 65 and additional pension benefits beyond age 65. SORP benefits were in addition to any others to which employees were entitled under the pension plan. It was totally funded by the two governments: no contributions were required from Hawker Siddeley. When SORP was announced to the employees, the information document included the following: "PENSION EARNED UNDER THE HAWKER SIDDELEY CANADA INC. PENSION PLANS. Entitlement to benefits under this PROGRAM will not affect or reduce the VESTED retirement pension and other benefits you have earned under the HAWKER SIDDELEY CANADA INC. PENSION PLAN(S). The benefits you will receive from this PROGRAM will be in addition to the benefits payable under the HAWKER SIDDELEY CANADA INC PENSION PLAN(S). In addition, you will have the option of beginning to receive your pension benefits under the HAWKER SIDDELEY CANADA INC PENSION PLAN(S) in accordance with the early retirement provisions of these plans." SORP was voluntary for those who met its qualifications. Employees were required to make their elections by February 29, 1988. Of the two hundred and fifty who were eligible, two hundred and forty-six made the election and signed a release to Hawker Siddeley. Two hundred and eleven of these were members of the Union. On March 31, 1988, Hawker Siddeley sold Trenton Works to Lavalin Incorporated. Later in 1988, Hawker Siddeley informed the Superintendent of Pensions (Nova Scotia) that it proposed to wind up the company pension plan. In December, 1988, it submitted a report and informed him that it had selected March 31, 1988 as the date of the wind up. Hawker Siddeley is the administrator of the company plan. On January 1, 1988, section 79 of the Pension Benefits Act became effective. It applies to all pension plans covered by the Act and contains additional benefits where plans are prematurely terminated. For these purposes the provisions of section 79 are called "grow in" benefits. Where a plan is prematurely wound up, section 79 permits a member who meets its requirements to an unreduced pension. For present purposes it is agreed that eligibility for section 79 "grow in" benefits depends upon the applicant being a member of the plan at the time it is wound up whether the winding up be in whole or in part. These proceedings relate to eighty-four employees who are also members of the Union. They participated in SORP. But for SORP they met the necessary age and years of membership in the pension plan to satisfy the requirements of section 79 for the "grow in" benefits. Of these, seventeen retired on December 1, 1987, twenty on January 1, 1988, eight on February 1, 1988 and thirty-nine on March 1, 1988. Hawker Siddeley took the position that these employees were not entitled to the section 79 "grow in" benefits because they were not employed on March 31, 1988, being the date chosen by it for the wind up of the company pension plan. The Union asserts they are entitled. If these eighty-four are disentitled, then the money that would otherwise be paid them will remain in the fund of the Plan and upon final distribution the surplus will pass to Hawker Siddeley since, as noted earlier, it was employer funded. After several exchanges among the interested parties, the Superintendent, on April 27, 1989, ordered that the wind-up report be amended to provide for a partial wind up on February 28, 1988 and further that it be amended to include these persons for section 79 "grow in" benefits, even though they had elected SORP. He relied on section 75(5) of the Act which provides: 75(5) The Superintendent may refuse to approve a wind-up report that does not meet the requirements of this Act and the regulations or that does not protect the interests of the members and former members. In addition to section 75(5), it is appropriate at this point to refer to the following sections of the Act, particularly as they bear upon the statutory authority of the Superintendent: 73(1) An employer or, in the case of a multi-employer pension plan, the administrator may wind up the pension plan in whole or in part. 73(6) The Superintendent may, by order, change the effective date of the wind up if the Superintendent is of the opinion that there are reasonable grounds for the change. R.S., c. 340, s. 73. 74(1) The Superintendent may, by order, require the wind up of a pension plan in whole or in part if ... (d) a significant number of the members cease to be employed by the employer as a result of the discontinuance of all or part of the business of the employer or as a result of the reorganization of the business of the employer; (e) all or a significant portion of the business carried on by the employer at a specific location is discontinued; (f) all or part of the employer's business or all or part of the assets of the employer's business are sold, assigned or otherwise disposed of and the person who acquired the business or assets does not provide a pension plan for the members of the employer's pension plan who become employees of the person; Hawker Siddeley applied to the Supreme Court for certain declarations. Justice Nathanson said there were two issues before him being: "1. What is the role of the Court in supervising the Superintendent of Pensions with respect to the wind-up of a pension plan pursuant to the Pension Benefits Act? 2. In the circumstances, how should the Court fulfill its role as defined in the answer to Issue 1?" After reviewing the scheme of the Act and what the Superintendent had done, Justice Nathanson concluded that in ordering an earlier date for a partial wind-up, the Superintendent was acting in a quasi-judicial capacity. He said that of the duties imposed upon the Superintendent, some are administrative and some are quasi-judicial. Those that are quasi-judicial are subject to review by the court. He also decided, citing authority, the Superintendent had not made any jurisdictional errors and that what he had done was "not only reasonable, but also consistent with the purposes of the Act." He awarded costs of $22,375.00 to the Union to be paid by Hawker Siddeley. The text of Justice Nathanson's reasons for judgment are reported in (1991), 103 N.S.R. (2d) 388. Following the decision of Justice Nathanson, the issues remained alive. Exchanges continued between and among the parties and ultimately Hawker Siddeley requested the Superintendent, pursuant to section 89(6), to hold a hearing to reconsider his decision. He agreed and the hearing was held on February 6, 1992. The Superintendent rendered a decision on November 30, 1992. Even though the following excerpt from his decision is lengthy, it records the essential features which he took into account. These are especially relevant in the light of the finding of Justice Nathanson that the Superintendent was acting in a quasi-judicial capacity in his determination that there would be four wind-up dates, all of which would make the SORP employees entitled to the section 79 "grow in" benefits. "The issue here is that the proposed 1 December 1987 partial wind-up pre-dates the coming into force of the current Act. I accept the argument of counsel for the employees that this does not violate the rule against retroactivity of statutes. The employees who accepted S.O.R.P. at 1 December 1987 had the 'characteristic or status' of having a 'combination of age plus years of employment or membership in the pension plan equal[ling] at least fifty-five ...' (s. 79). As Mr. Justice Nathanson has found, I have the authority to set the 'effective date of the wind-up of the pension plan, in whole or in part' (s. 79) to achieve the purposes of the Act [Hawker Siddeley, p, 412]. In so setting the partial wind-up date, the effect is to attach 'new consequences for the future to an event that took place before the statute was enacted', in the words of Professor Driedger: 'Statutes: Retroactive Retrospective Reflections' (1978), 56 Canadian Bar Review 264, at pp. 268-9. This is not something 'which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past' (Maxwell: Interpretation of Statutes, 12th ed, 1976). As a result, the presumption against retrospectivity does not apply. I therefore accept the argument that it is within my power under the Act to order a partial wind-up of a pension plan with an effective date prior to January 1, 1988 (the date of coming into force of the Pension Benefits Act, 1989). I find that the 84 employees in question here 'ceased to be employed by the employer as result of a discontinuance of all or part of the business of the employer' within the meaning of s. 74(1)(d). Hawker Siddeley was in the process of reducing the number of its employees as part of its preparation for the sale of its business. The sale was prompted by 'poor market conditions that have persisted during the last few years for railway freight car manufacturing' (Minutes of Board of Director's meeting 6 June 1989 - see Exhibit "C" to affidavit of Yvon Melancon sworn 5 February 1992). Hawker Siddeley was getting out of the business of rail car manufacturing and this resulted in a program of reduction of the work force via early retirements. The fact that the early retirements were aided or funded by S.O.R.P. does not affect my view of the employer's obligations in this case. As the employer concedes, the S.O.R.P. benefits 'are being offered and funded separately by the Federal Government and by the Government of Nova Scotia and ... Hawker Siddeley Canada Inc. is not responsible for providing any of the benefits provided by the program.' (see release form prepared by employer for employees taking S.O.R.P., being Exhibit "J" to Melancon affidavit). Therefore, there is no question of double recovery by these retiring employees, either from the employer or the pension fund. Having found that grounds exist for ordering a partial wind-up in respect of these 84 employees, I exercise my discretion under s. 75(5) and refuse the wind-up report of 19 December 1988 as not protecting the interests of members and former members. The employer has chosen a wind-up date of 31 March 1988 which effectively excludes these employees from the grow-in benefits provided for in s. 79. (Underlining Added) Consistent with the intent of the Act, and pursuant to the authority in s. 73(6) thereof, and keeping in mind the words of Mr. Justice Blair in Firestone Canada Inc. v. Pension Commission Ont. et al. (1990), 42 O.A.C. 176 (C.A.) at p. 127 that '... the Act is clearly intended to benefit employees' and '... evinces a special solicitude for employees affected by plant closures', I order the following partial wind ups of the Plan. Each effective wind up date coincides with the date of termination of employment of the particular sub-groups of employees set out after it. In total, these employees comprise the 84 with whom this decision is concerned. The date of final wind-up is 31 March 1988." The order of the Superintendent provided for partial wind-ups on each of November 30, 1987, December 31, 1987, January 31, 1988 and February 29, 1988, and a final wind-up date of March 31, 1988. The effect was to include all of the eighty-four as entitled to the "grow in" benefits provided by section 79. Hawker Siddeley appealed the decision of the Superintendent to the Nova Scotia Supreme Court pursuant to section 89(9) of the Act. Justice MacAdam dismissed the appeal and awarded the Union costs of $1,000.00 to be paid from the fund of the pension plan. His reasons are reported in (1994), 126 N.S.R. (2d) 113. Hawker Siddeley now appeals from the decisions of both Justices Nathanson and MacAdam alleging that they made errors in law. The two appeals were consolidated by an order of a judge of this court sitting in chambers. The First Issue Counsel for Hawker Siddeley presents the first issue in the form of a question: What degree of curial deference should be accorded to the Superintendent of Pensions? This relates to the standard of review. Relevant to the process by which the decision of the Superintendent makes its way to the Supreme Court are the provisions of section 89(8) and (9) of the Act: (8) Where the person requires a reconsideration by the Superintendent in accordance with subsection (6), the Superintendent shall reconsider the proposed action and notify the person of the decision. (9) Upon receipt by a person of the decision of the Superintendent pursuant to subsection (8), that person may appeal to the Trial Division of the Supreme Court and the Court may confirm the decision or substitute any decision the Superintendent was authorized to make. R.S., c. 340, s. 89. (The reference to the Trial Division now means the Nova Scotia Supreme Court) The Act contains NO privative clause respecting decisions made by the Superintendent. Also relevant are the general duties which the Act, by section 10, imposes on the Superintendent: 10 The Superintendent shall (a) promote the establishment, extension and improvement of pension plans throughout the Province; (b) make recommendations to the Minister in respect of pension plans throughout the Province; and (c) perform such functions and discharge such duties as are assigned from time to time by the Governor in Council or the Minister. R.S., c. 340, s. 10. As earlier noted, Justice Nathanson stated that the Superintendent performs both administrative and quasi-judicial functions. He wrote at page 409 (N.S.R.): "[40] The powers of the Superintendent, as set out in ss. 73(6), 74, 75(5) and 89(4) of the Act, indicate that the Superintendent's functions are quasi-judicial. Some of those powers are exercised by the Superintendent making a decision in a judicial manner. That view is reinforced by the specific duties of the Superintendent set out in ss. 89 and 90, both of which provisions require the Superintendent to give notice with written reasons and to hold a hearing. These are characteristics of the quasi-judicial function." It was his opinion that the court should liken the Superintendent to a statutory tribunal and apply the same standard of review. Justice MacAdam referred to the expertise inherent in the exercise of the powers of the Superintendent in the specialized and somewhat complicated area of pension benefits legislation. He concluded the decisions of the Superintendent are entitled to a degree of curial deference but somewhat less than the "patently unreasonable or irrational" standard applied to those statutory tribunals which have the protection of a privative clause. Hawker Siddeley contends there should be no "standard of curial deference" applied to the decision of the Superintendent. It relies upon the language of the Act which refers to a "decision" rather than a final decision. It observes that in the appeal provision (section 89(9)) the court may "substitute any decision" of the Superintendent. (The same section also provides the court "may confirm the decision".) Deference, says Hawker Siddeley, should be given only to findings of fact made by the Superintendent and in this instance it argues there are none. It is the view of Hawker Siddeley that the only basis for the rejection of its wind-up report was that it did not include the "grow in" benefits for the eighty-four employees who elected to take SORP. On that issue the appellant argues the Supreme Court or this court is in as good a position as the Superintendent to determine whether that entitlement was appropriate. Counsel for the respondent Union argues in support of the reasons of both Justices Nathanson and MacAdam, but tends to be slightly more supportive of the conclusions reached by Justice Nathanson. A review of the legislative scheme of the Act persuades me that for the purposes of review, the Superintendent should be equated to a statutory tribunal which is not protected by a privative clause. In addition to the general duties required by section 10 (above), the legislature imposes a broad range of responsibilities upon the Superintendent, many of which require expertise and decision making. As the respondent points out, the Superintendent determines whether a total or partial wind up of a plan is required (sections 73-79), whether a pension plan is suitable for registration (sections 12-24), whether conditions for the transfer of pension plans have been met (section 50), whether contribution methods and funding levels are sufficient (section 62), whether surplus pension plan funds may be paid out (section 83-84), and, in addition, broad powers to make orders for compliance with the Act. This subject has been recently addressed by the Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316. The decision relates to a "statutory" arbitrator whose decision was unprotected by a privative clause. Mr. Justice Sopinka, for the court, wrote at pages 332-3: "The legislative provisions in question must be interpreted in light of the nature of the particular tribunal and the type of questions which are entrusted to it. On this basis, the court must determine what the legislator intended should be the standard of review applied to the particular decision at issue, having due regard for the policy enunciated by this Court that, in the case of specialized tribunals, decisions upon matters entrusted to them by reason of their expertise should be accorded deference. The statutory provisions to be interpreted in this manner range from 'true' privative clauses which clearly and specifically purport to oust all judicial review of decisions rendered by the tribunal (such as that in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048) to clauses which provide for a full right of appeal on any question of law or fact and which allow the reviewing court to substitute its opinion for that of the tribunal (as in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321). Where the relevant legislative provision is a true privative clause, judicial review is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law otherwise within the tribunal's jurisdiction. The tests for identifying such errors are set out in Bibeault and affirmed in Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614 ("PSAC No. 1), and most recently in Canada (Attorney General) v. Public Service Alliance of Canada [1993] 1 S.C.R. 941 ("PSAC No. 2"). In the presence of a full privative clause, judicial review exists not by reason of the wording of the statute (which is, of course, fully preclusive) but because as a matter of constitutional law judicial review cannot be ousted completely: see Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. Although their preclusive effect may be less obvious than that of the true privative clause, other forms of clauses purporting to restrict review may also have privative effect. Wording such as 'final and conclusive' and the like may be found to restrict review to matters of jurisdiction if the court concludes that, taking into account the factors referred to above, the legislator clearly intended that the decision should be immune from review in the absence of an error as to jurisdiction. Such was the case in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, in which this Court found privative effect in a clause which provided that the tribunal's decision with certain limited exceptions, was 'final and conclusive'. See also the comments of Gonthier J. in Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at p. 1744." In Bradco Mr. Justice Sopinka made reference to the consideration that courts should give where expertise and specialization are inherent in the functions performed by the tribunal. He approved a standard of deference to a statutory tribunal even where, as here, its decisions are fully subject to appeal. He stated at page 335 (S.C.R.): "Along with the rationale for its existence, the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal's decision in the absence of a full privative clause. Even where the tribunal's enabling statute provides explicitly for appellate review, as was the case in Bell Canada, supra, it has been stressed that deference should be shown by the appellate tribunal to the opinions of the specialized lower tribunal on matters squarely within its jurisdiction." In Bell Canada v. Canada (CRTC), [1989] 1 S.C.R. 1772, to which Mr. Justice Sopinka refers, Mr. Justice Gonthier stated at page 1746: "However, within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise. ... Although the very purpose of the review committee is to interpret the tariff and although such questions of interpretation fall within the Review Committee's area of special expertise, it does not follow that its decisions can only be reviewed if they are unreasonable. However the principle of specialization of duties justifies curial deference in such circumstances." The Act anticipates the Superintendent is one who is skilled in the administration of legislation which calls for a considerable degree of expertise. The Superintendent is appointed by the Government of Nova Scotia on a full time and continuing basis. The Superintendent is charged with the responsibility of administering legislation which by its nature is one of public policy. The interest of the public, in general, and of participating employees, in particular, in the fair, equitable and consistent administration of pension plans is high. Thus the position of the Superintendent cannot be described as ad hoc. It is continuing and on-going. In this respect, Mr. Justice Sopinka observed in Bradco at page 336 (S.C.R.): "... a distinction can be drawn between arbitrators, appointed on an ad hoc basis to decide a particular dispute arising under a collective agreement, and labour relations boards responsible for overseeing the ongoing interpretation of legislation and development of labour relations policy and precedent within a given labour jurisdiction. To the latter, and other similar specialized tribunals responsible for the regulation of a specific industrial or technological sphere, a greater degree of deference is due their interpretation of the law notwithstanding the absence of a privative clause." In C.U.P.E. v. Ontario Hospital Assn. (1992), 91 D.L.R. (4th) 436, a panel of the Ontario Court (General Division) sitting as the Divisional Court, had occasion to review, on appeal, a decision of the Commission established by the provisions of the Pension Benefits Act of Ontario. In upholding the decision and dismissing the appeal the court stated at page 445: "And while we may not be in complete agreement with its reasons, we find the Commission's interpretation of s. 8(1)(e) to be consistent with the objects and purposes of the Act which concern the regulation and provision of standards for all types of pension plans in Ontario." Justice MacAdam concluded his remarks on the standard of review to be applied to the Superintendent by writing at page 97 (N.S.R.): "[50] Recognizing the duties and responsibilities of the Superintendent and the specialized area of pension benefits legislation, the actions and decisions of the Superintendent are entitled to deference by this court. The degree of deference is not, however, such as to require them to have been 'patently unreasonable or irrational' in order to be set aside." Counsel have interpreted his last sentence to be less broad in the degree of deference he would apply than the more general and unqualified approach of Justice Nathanson. Both Justices, however, are in agreement that in these circumstances the standard of review involves the application of curial deference to the decisions of the Superintendent. The judicial review of the decisions of tribunals is rampant with tests that include "patently unreasonable" and "irrational" and a variety of labels similarly related. In the recent decision of the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, Mr. Justice Cory explained the meaning of "patently unreasonable" at pages 963-4: "It is said that it is difficult to know what 'patently unreasonable' means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'. 'Unreasonable' is defined as '[n]ot having the faculty of reason; irrational .... Not acting in accordance with reason or good sense'. Thus, based on the dictionary definition of the words 'patently unreasonable', it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test." Section 89(9) gives the court the authority to review the decision of the Superintendent. In doing so, the court may confirm or substitute. The power on appeal is very broad. However, I agree with Justices Nathanson and MacAdam that in the scheme of the Act, the decision of the Superintendent is entitled to deference. If it is found to be 'patently unreasonable or irrational' it can be set aside. If the Superintendent has acted beyond his jurisdiction in the sense that he has made a decision which is outside the jurisdiction conferred upon him by the Legislature, then the court has the authority to set it aside. That the court may not agree with the decision is insufficient cause, standing alone, to substitute the decision for one of the court's liking. The court is otherwise obliged to respect the decision of the Superintendent as falling within the jurisdiction the Legislature has entrusted to his care, expertise and administration and should confirm it. Thus both Justices Nathanson and MacAdam are correct in determining that this decision of the Superintendent is entitled to deference by the court. The scope of review should be the same as a court would review the decision of a statutory tribunal not protected by a privative clause. The Second Issue Hawker Siddeley addresses the second issue with the question: What are the powers of the Superintendent under the Pension Benefits Act and were those exercised appropriately? The issue underlying this general question is more narrowly defined in the following paragraph in its factum: "60. The sole issue between the parties is the proposed date of wind up and how it will affect those former members of the plan who elected to participate in SORP. The basic question is whether the Superintendent had the authority to refuse the wind up report as submitted by Hawker Siddeley pursuant to Section 75(5), to order a series of partial wind ups pursuant to Section 74 or to change the effective date of the wind up pursuant to Section 73(6)." The sections of the Act to which Hawker Siddeley refers are set forth above at page 3. In considering this issue reference should also be made to the excerpt from the decision of the Superintendent which begins at page 5. Hawker Siddeley contends that the Superintendent lacked the statutory authority to refuse the winding up report it submitted, to order the partial wind ups and to change the date of the wind-up to accommodate the partial ones he imposed. In all these areas Hawker Siddeley argues the Superintendent exceeded his jurisdiction and this court, on appeal, should substitute its decision for his. Justice MacAdam took the position that the decision of the Superintendent to refuse to approve the wind-up report because it did not protect "the interests of the members and former members" required no "curial deference" because the evidence before the courts supported his decision as "being both reasonable and consistent with the purpose of the Pension Act as well as the duties of the office." (p. 97, para. 54, N.S.R.) I agree with Justice Nathanson who wrote at page 411, para. 51, (N.S.R.): "The Superintendent clearly had the power to order the wind-up of the pension plan, but only if a significant number of the members ceased to be employed by the employer as a result of the discontinuance of all or part of the business of the employer or as a result of the reorganization of the business of the employer, or if all or a significant portion of the business carried on by the employer at a specific location is discontinued. In my opinion, s. 75(1) authorizes the Superintendent to decide whether one or more of the prescribed conditions had been fulfilled. It is apparent that the Superintendent decided that one or more of those conditions had been fulfilled. I find that his decision was reasonable and consistent with the purposes of the Act, and I find no evidence of want of good faith or that the decision was made other than in accordance with the Act. I am unable to conclude that, in exercising his powers, he did anything in excess of his authority or contrary to the principles of natural justice. Moreover, I find that the evidence supports his decision." The sections of the Act, which have been quoted, provide the Superintendent with a broad discretionary authority to administer the Act. While he is to follow the procedures described in the Act, he must exercise his discretion fairly and in a manner consistent with the purposes for which the Act is established. He is entitled by the Act on wind up (section 75(5)) to protect the interests of members and former members of the Plan. Were it not for the intervention of the two governments with SORP in which these eighty-four employees were encouraged to enlist with the profession that they would not be adversely affected by the Plan, they would have been clearly eligible to full participation in the Plan. This created an unfairness in the opinion of the Superintendent which by his decision he sought to correct. It was a matter within his statutory discretion that he had the authority to correct. He did this following a reconsideration hearing where all the parties were given a full opportunity to be heard both orally and by their written submissions. I agree with the conclusions reached by Justices Nathanson and MacAdam that this is not a matter requiring the court to second guess the Superintendent. The result is that his decision should be confirmed as the two Justices did in their reported judgments. In his reasons, Justice MacAdam provides a section by section analysis of the statutory provisions upon which the second issue is based. I need not repeat them here. In my judgement he made no error in dismissing this ground of appeal. Hawker Siddeley submits that permitting the order of the Superintendent to stand may result in "double benefits" for those who elected to take SORP and eventually lead to future court proceedings concerning the eventual distribution of the surplus of the Plan. These are not issues before the court at this time and if they become live issues at some future time, they will then be dealt with. The Third Issue Hawker Siddeley puts the following question: Does the Pension Benefits Act authorize the retroactive extension of Benefits to persons who have retired and as a result cease to be members of the Pension Plan prior to the date when Section 79 of the Pension Benefits Act came into force? Section 79, which provides for the "grow in" benefits, came into force on January 1, 1988. Two of the partial wind ups ordered by the Superintendent were effective November 30, 1987 and December 31, 1987. These made it possible for thirty-seven of the eighty-four SORP employees to grow into their early retirement benefits under section 79. The issue is whether they were so entitled. Considering the frequent references that are made to section 79, it may be helpful to the reader to set forth section 79(1) which is the portion most relevant to this issue. 79 (1) A member of a pension plan whose combination of age plus years of employment or membership in the pension plan equals at least fifty-five, at the effective date of the wind up of the pension plan, in whole or in part, has the right to receive (a) a pension in accordance with the terms of the pension plan if, under the pension plan, the member is eligible for immediate payment of the pension benefit; (b) a pension in accordance with the terms of the pension plan, beginning at the earlier of (i) the normal retirement date under the pension plan, and (ii) the date on which the member would be entitled to an unreduced pension under the pension plan if the pension plan were not wound up and if the member's membership continued to that date; or (c) a reduced pension beginning on the date on which the member would be entitled to the reduced pension under the pension plan if the pension plan were not wound up and if the member's membership continued to that date. The following is the effect of section 79(1) as described in the affidavit evidence accepted by Justice MacAdam at page 104, para. 83 (N.S.R.): "In summary, a member whose combination of age plus years of employment or plan membership totals at least 55 at the effective date of a plan wind-up has the right to receive, inter alia, an unreduced early retirement pension in accordance with the terms of a plan commencing no earlier than the date the member would be entitled to such an unreduced pension assuming that the plan was not wound up and that the member's membership therein had continued to that commencement date." Hawker Siddeley contends the Superintendent was prohibited from making his order by section 106 of the Pension Benefits Act, S.N.S. 1987, c. 11. This is the predecessor legislation which did not contain the "grow in" benefits of section 79. Section 106 provided: 106 (1) Chapter 14 of the Acts of 1975, the Pension Benefits Act, is repealed. (2) Notwithstanding subsection (1), Chapter 14 of the Acts of 1975 and the regulations thereunder continue to apply to persons who have before the first day of January, 1988, ceased membership in a pension plan or retired from a pension plan. The same argument was considered by Justice MacAdam. He stated at page 108, para. 102, N.S.R.: "Hawker Siddeley suggests that s. 106 of the Pension Act which provides that the 1975 Act continues to apply to persons who ceased membership in a pension plan or retired from a pension plan prior to January 1st, 1988 precludes the application of the benefits of s. 79 to such persons. We do not agree. The section merely ensures that the rights of the retired members are not abridged by the repeal of the former Pension Act. There is nothing to prevent persons who otherwise qualify from attaining any benefits that are available under the Pension Act that took effect on January 1st, 1988." I agree with Justice MacAdam. Detailed arguments were advanced in the proceedings in the Supreme Court, and before this court on appeal, concerning the issues of retroactivity and retrospectivity. It is asserted by Hawker Siddeley that the Superintendent applied the Act backwards (retroactively) and in the alternative, applied section 79 to closed transactions (retrospectively). Counsel advanced numerous authorities to support its several submissions. The Union contends otherwise. It supports the orders of the Superintendent with its arguments and authorities. After extensively reviewing all of these, I have concluded that Justice MacAdam made no error when he stated at page 108, para. 101, N.S.R.: "The Superintendent was therefore entitled to order partial wind-ups for such dates he felt would effect the objectives of the Pension Act. His decision was therefore merely declaratory of each individual employee's status as at a particular time, which in the instant case, was preceding the date on which they ceased to be employed by Hawker Siddeley. His order neither changed the provisions of s. 79 nor applied it either retroactively or retrospectively." All of the authority conferred by the former statute on the Superintendent at December 31, 1987 continued in the new statute on January 1, 1988. There was no change in what he was authorized to do in the administration of the Act or in the enhancement of the objectives underlying the legislation. All that has been discussed in the preceding pages concerning his powers and the exercises of his discretion continued without interruption. Underlying this legislation is a significant and important principle of public policy designed to protect and enhance the quality of life to which the subject employees would be entitled in their retirement years after achieving the threshold requirements of continuous employment in the workplace. They were encouraged by two governments and Hawker Siddeley to take advantage of SORP on the representation that they would not suffer while continuing to be members of the existing Hawker Siddeley Plan. SORP was designed to help Hawker Siddeley sell the Trenton Works. We do not know whether it assisted but we do know that it did not hinder the sale to Lavalin which took place effect March 31, 1988. When Hawker Siddeley contributed the money that funded the Plan, it was obviously intended to be for the benefit of its workers pursuant to the Agreement negotiated between the company and the Union. The sale and final wind up were all 1988 transactions at times when the section 79 "grow in" benefits were lawfully in place. The Superintendent retained the final wind-up date chosen by Hawker Siddeley, namely March 31, 1988. To achieve a fair and equitable distribution of the funds in the Plan and to recognize rights to which these eighty-four were reasonably entitled, he ordered a series of partial wind ups. In doing so he gave effect to the objectives of the Act. There is no cause for this court to substitute some other decision for that of the Superintendent. There is cause, however, to confirm it. That I would do by concluding that Justice MacAdam made no error in his finding to which I have referred and finally, that the principles of retroactivity and retrospectivity are not violated these circumstances. The Fourth Issue The question raised by Hawker Siddeley is: Did Mr. Justice Nathanson err in his Decision on costs? Following the delivery of his reasons, Justice Nathanson held a separate hearing on the subjects of costs and who should pay them. Thereafter he rendered a lengthy and considered decision on October 17, 1991, in which he ordered costs of $22,375.00 to be paid by Hawker Siddeley to the Union. On appeal Hawker Siddeley alleges he awarded costs which were too high and he erred by requiring Hawker Siddeley to pay them rather than making them a charge against the fund of the Plan. Justice Nathanson found the case involved "substantial non-monetary issues". After reviewing the nature and circumstances surrounding the action together with a consideration of relevant authorities from this and other jurisdictions, he concluded: "In view of these factors and considerations, I consider that the appropriate 'amount involved' in this case is $600,000. This, when applied to Scale 3 of Tariff A, yields costs in the amount of $22,375. In addition, disbursements will be taxed." Interference by this court in the exercise of the discretion of the trial judge in the award of costs at trial is not to be lightly entered upon. This is reflected in the recent decision of this court in Turner-Lienaux v. Nova Scotia (Attorney General) et al. (1993), 122 N.S.R. (2d) 119, where Mr. Justice Chipman wrote at page 134, para. 55: "In dealing with the question of costs, the trial court was exercising its discretion vested in it. Having regard to the principle which so sharply limits the scope of our review of such an exercise of discretion, I am satisfied that no error in that respect has been shown. I would not disturb the order as to costs at trial." A review of the decision of Justice Nathanson reveals that he gave the issue detailed and thoughtful consideration. He discussed and analyzed the arguments raised by both counsel. Being the trial judge he was entirely familiar with the complexity of the issues and the time and effort contributed by counsel in bringing them forward. Finding no manifest error or wrong principle adopted by Justice Nathanson, I would not disturb his award. Nor would I propose to alter his order that Hawker Siddeley, and not the fund, pay the costs. The situation is not analogous to that of an outside trustee or administrator of a pension plan - Hawker Siddeley is the administrator. It is not in the position of an administrator seeking the interpretation of a provision in the Plan, nor does it equate to that of an executor asking the court for the interpretation of a provision in a last will and testament and thereafter the direction of the court for the course the executor or trustee should follow. Instead, Hawker Siddeley's attack relates to the authority of the Superintendent and the manner by which he conducted himself. Hawker Siddeley has every right to do this but when it does in the circumstances underlying this proceeding, the matter is brought to the court more on its own behalf than on any other. Justice Nathanson saw it that way as well. He wrote: "I reject the analogy of the principal application with an application for interpretation of a will. A better analogy would be with an application for construction of provisions of the Probate Act which established the powers and duties of the Registrar of Probate. Neither application affects the distribution of the residue of the funds held by the applicant. If this were a claim for the surplus of the pension fund, I might be inclined to do otherwise but, in the circumstances, I accept the submission of United Steelworkers and find that the costs are payable by Hawker Siddeley personally rather than out of the pension fund." On this issue reference is made to the following decisions: Reevie et al. v. Montreal Trust Company of Canada et al. (1986), 13 O.A.C. 233 (Ont. C.A.); Firestone Canada Inc. v. Pension Commission of Ontario et al. (1990), 33 C.C.E.L. 225 (Ont. C.A.); and Collins and Bachelor et al. v. Pension Commission Ontario and Dominion Stores Limited (1986), 31 D.L.R. (4th) 86 (Ont. Div. Ct.). I would answer the question raised by Hawker Siddeley in the fourth issue in the negative. Conclusion I would 1. dismiss the appeal; 2. order costs on the appeal to the respondent Union, to be paid by the appellant Hawker Siddeley in the amount of 40% of the costs awarded by Justice Nathanson, rounded to $9,000.00, plus disbursements; and 3. award no costs to the Superintendent and the Province because their counsel took no part in the appeal. C.J.N.S. Concurred in: Hart, J.A. Jones, J.A.