Coco Paving Inc. v International Union of Operating Engineers, Local 793, 2017 CanLII 8326.
David A. McKee, Vice-Chair
Leslie A. Brown and Jenny Coco for Coco Paving Inc.
Ernie A. Schirru, Mark Zigler, Jeff Smith and Kirsten Agrell for the International Union of Operating Engineers, Local 793.
February 17, 2017
Introduction
Coco Paving Inc. filed a grievance against the International Union of Operating Engineers, Local 793, for an alleged overpayment of pension contributions, as well as an overpayment to the Union Training Fund. The union filed a motion to dismiss the application on a number of grounds, including a challenge to the jurisdiction of the Ontario Labour Relations Board to hear the pension contribution overpayment issue.
Summary
The employer, a road building contractor operating in Ontario, filed a grievance against the union for an alleged overpayment of employer pension contributions to a jointly sponsored pension plan. The employer operates in different areas in Ontario, including the Greater Toronto Area and Simcoe County, and the parties negotiated different levels of pension contributions for these two areas. For union members working for, or residing in, Simcoe County, the rate of pension contribution is lower. However, for a four-year period, the employer paid the higher pension contribution rate (i.e. the one for the Greater Toronto Area) for members working for or residing in Simcoe County, and calculated its pension contribution overpayment at $354, 044.48.
The decision of the board addresses the union’s motion to dismiss the application, based on 11 different grounds. One of the grounds advanced by the union was that the pension contribution overpayment issue is a subject matter within the exclusive control of the Superintendent of Financial Services and must be dealt with at that level.
The board agreed with the union on this point and concluded that it ought to defer the pension contribution overpayment issue to a determination by the Superintendent under the Pension Benefits Act, R.S.O. 1990 Ch. P-8. The board held “[T]he Legislature has created a specific statutory process for precisely this problem – the alleged overpayment of contributions to a pension plan by an employer.” However, the board did not dismiss the application as the union requested. Instead, the board decided to hold the grievance in abeyance until the final decision from the Superintendent.
Conclusion
The decision appears to be the first application of section 62.1 of the Pension Benefits Act, which was added to Ontario’s pension legislation in 2010. Section 62.1 prohibits administrators of pension plans from authorizing payments from the pension funds to reimburse employers for overpayments, without advance consent of the Superintendent. The trustees of the pension plan were not named parties in the grievance.
Prepared by Balraj K. Dosanjh, Pink Larkin