Two Decades after Schmidt: Where Has Pension Law Been and Where Is It Going Workplace Pensions: Next Generation or Final Frontier

This paper takes a concise look at what the future might hold for pension law in Canada, by considering how it has developed in the past and where it stands today. Beginning with an overview of the Supreme Court of Canada's foundational decision in the Schmidt case, the author traces the evolution of what she sees as two distinct approaches to the resolution of pension disputes: the "classical" approach, and the "integrated" approach. The classical approach is both hierarchical and binary, in that if the governing pension legislation applies, its provisions prevail over the common law, while if the legislation does not apply, the court, in deciding the case, must choose whether to apply trust law principles or contract law principles. Under the integrated approach, by contrast, the court does not begin from the premise that a certain, unitary set of principles should be applied to decide the matter. Rather, it recognizes that pension disputes often involve the intersection of pension legislation, trust law and contract law, and that their resolution may properly be informed by a consideration of other areas of law as well as the underlying policy concerns. The author notes that the classical approach and the integrated approach both have advantages and disadvantages, and that both have a basis in the Supreme Court's jurisprudence. The paper concludes by setting out the types of novel pension issues which may come before the courts in the coming decade, and illustrates how the determination of those issues may depend on which of the two rival approaches is adopted.