J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 100 Date: 20040624 Between: Docket: 952 Her Majesty the Queen in Right of Saskatchewan represented by the Superintendent of Pensions (Applicant) Proposed Appellant and MacKenzie Financial Corporation, Haywood Securities Inc., Dynamic Mutual Funds Limited and AGF Management Ltd. (Respondents) Proposed Respondents Before: Sherstobitoff J.A. Counsel: Ralph K. Ottenbreit, Q.C. for the Proposed Appellant Deron A. Kuski for the Proposed Respondent Application: From: 2004 SKQB 187 (CanLII) Heard: June 23, 2004 Disposition: Dismissed Written Reasons: June 24, 2004 By: The Honourable Mr. Justice Sherstobitoff SHERSTOBITOFF J.A. [1] The Superintendent of Pensions seeks leave to appeal an order staying six separate proceedings brought by him in purported exercise of powers conferred on him by s. 8 of The Pension Benefits Act, 1992, S.S. 1992, c.P-6.001 and Regulations made thereunder. The stay was granted upon the applications of the respondent corporations and was to remain in effect until an action against them by one Faye McMaster, not party to these proceedings, was settled or otherwise completed. The subject matter of the McMaster action and the Superintendent’s applications was the same, namely certain monies McMaster’s husband had paid into pension plan and in which she had an interest by reason of judicial division of matrimonial property. [2] Hunter J., who dealt with the stay application, felt impelled to deal with the powers of the Superintendent because it had previously been agreed by the parties and directed by the Court that the preliminary issue to be determined was the scope of s. of the Act. She determined that the Superintendent did not have the powers he claimed to have and purported to exercise. However, she was careful to limit her judgment in this respect as follows: [24] This matter was addressed as preliminary issue only without any adjudication on the merits. It is impossible to address the scope and breadth of statutory provision in the absence of factual context. However, that is how the matter was put for determination. [25] In an effort to limit the effect of this determination on preliminary issue on the merits of the six motions commenced by the Superintendent, find that the letter of August 6, 2002 is not direction of the Superintendent, which may be enforced pursuant to s. of the Act. Section is to assist the Superintendent in carrying out his administrative duties and the letter of August 6, 2002 is beyond the legislative authority of the Superintendent and beyond his administrative capacity. [3] From this, it is clear that her finding was for procedural purposes only and was not intended to be definitive. She left it open to the Superintendent to proceed with his applications when the McMaster action was finished and that her decision respecting his powers was open to review upon further evidence being adduced. Indeed, it could be said that her findings in respect of s. were obiter dictum as not being strictly necessary to the decision, and made only because that was the way the matter was put to her by previous decision of the court and the agreement of the parties. [4] Since the judge made it clear that the part of her judgment which the Superintendent says was wrong was made “without any adjudication on the merits” the matter is left open for the Superintendent to argue another day, either in the stayed proceeding or in another case, in proper factual context, which was lacking here. [5] For these reasons, find it inappropriate to grant leave to appeal. The application is dismissed with costs. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of June, A.D. 2004. SHERSTOBITOFF J.A.
The Superintendent of Pensions seeks leave to appeal an order staying six separate proceedings brought by him in purported exercise of powers conferred on him by s. 8 of The Pension Benefits Act, 1992. HELD: The application was dismissed. It was clear that the judge's finding was for procedural purposes only and was not intended to be definitive. The judge left it open to the Superintendent to proceed with his applications when the McMaster action was finished and that her decision respecting his powers was open to review upon further evidence being adduced.