The Ontario Court of Appeal overturned the Divisional Court’s decision in Nolan v. Superintendent of Financial Services(otherwise known as Kerry)yesterday, says a brief from Osler, Hoskin & Harcourt.

The Court of Appeal essentially restored the earlier, more employer-friendly decision of the Financial Services Tribunal in respect of pension plan expenses and contribution holidays.

Highlights of the decision include:

• pension plan administration expenses were payable from the plan fund, as the payment of such expenses was not inconsistent with the language in the historic plan and trust documents;

• depending on how the plan is structured, it is permissible to use surplus from the defined benefit(DB)component of the plan to fund contributions in respect of the defined contribution(DC)component of the same plan;

• contribution holidays taken with respect to the DB component of the plan were valid, given the language of the plan.

Benefits Canada’s contributors have covered this story extensively in the past. Paul Dempsey, a partner with Gowling Lafleur Henderson, wrote about the case in A watching brief. Louise Greig, an associate with Osler, discussed Kerry in Out of pocket. Mitch Frazer, a senior associate at Torys, mentioned the case in his piece, Tread carefully. And Murray Gold, a partner with Koskie Minsky, wrote about Kerry in Blurring the lines.

To view the decision on the court’s website, click here.

To comment on this story email

Copyright © 2020 Transcontinental Media G.P. Originally published on

Join us on Twitter