A termination is a termination whether the “t” is upper-case or lower-case, a former president of a B.C. wood manufacturer has learned.
Brett Robinson sued Canfor Pulp Ltd. for wrongful dismissal after his position as president was terminated in March 2018. The bulk of that lawsuit was settled, but there remained a disagreement about his pension plan.
Namely, the two parties disagreed about when contributions to the executive pension plan should have been made to.
Robinson argued for payments to be made for just over three years past his termination date, hinging at least part of his argument on the lack of a capitalization of the word “termination” in a clause of the pension plan agreement.
Robinson had worked at Canfor since 1989 and was promoted to vice-president of operations at its affiliate company, Canfor Pulp LP, in 2008 before being named the president of the company in 2012.
He’d been contributing to a defined benefit pension plan until 2006 before the company switched to a defined contribution plan. When he was made vice-president, he became qualified for the company’s supplemental executive retirement program (SERP).
Following his dismissal, Robinson argued he was entitled to 24 months of notice, while the company argued the 18 months it had offered was appropriate, according to a recent B.C. Supreme Court decision.
That action settled in 2021 for a lump sum of $563,077, and the effective termination date remained at Sept. 5, 2019.
Robinson had another $841,830 in his SERP account, and the company wrote to him in February 2021 to ask how he wanted to receive the payout of those funds. Robinson’s lawyer responded to say the payments into that account should have continued past Sept. 5, 2019.
Canfor disagreed, and Robinson again sued in June 2021.
Robinson ultimately received a payout of his SERP account on Oct. 26, 2022, and he argued the payments into the account should have continued to that point.
But Milman rejected Robinson’s argument, which depended on the definition of “notional earnings” in the SERP plan, saying it would be a “very oblique” way to convey an intention to continue paying into the account until withdrawals begin, “hidden as it is within a definition.”
What’s more, the judge noted another section of the agreement suggested an intention only to credit employees who retire, are terminated or die for periods in which they’ve worked.
Robinson argued that because that section used a lower-case “t” for the word “termination,” it likely meant something other than an upper-case “T” termination. He has been capital “T” terminated and there was case law to back up the distinction between upper-case and lower-case words.
Milman dismissed the argument, finding Sept. 5, 2019 to be the proper date to end the pension plan contributions.
“It is difficult to conceive of what other meaning can sensibly be imputed to the word in that context, given the broad scope of the definition. Mr. Robinson suggests, implausibly, that it might refer to a voluntary, rather than an involuntary termination,” wrote Milman.
“It is difficult to conceive of a coherent reason that could have moved the drafters [of the plan] to distinguish in that way between voluntary and involuntary terminations, or to allow those who have been terminated to continue to accrue notional earnings after the date of their termination, when those who decide to leave voluntarily, retire or die are not afforded the same privilege.”
