David Stratas Federal Court of Appeal Writing Workshop (Exercise D) David Stratas Federal Court of Appeal

How to do clear, direct and brief ● One main principle: context before detail / point first ● Three practical rules: - Eliminate wimpy words - Use one plain, good word if you can - Concentrate on connections

1. Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporations increasingly control lives of Canadians through lengthy consumer agreements or contracts of adhesion. Such contracts cover a range of services and have non-negotiable terms presented on a take it-or-leave-it basis.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporations control Canadians through consumer agreements or “contracts of adhesion.” Corporations require these contracts for many services, including banking and communication. Complicated and non-negotiable, these contracts put pressure on consumers to accept them.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporations are becoming more and more controlling in Canadians' lives.  Many services, including loans, banking services, vehicle leases and communication services, require customers to sign lengthy, standard form contracts. These contracts (or consumer agreements) are drafted by corporations, and are complicated and non-negotiable. Take it or leave it, consumers must sign these contracts to get the service they want.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporate interests increasingly control Canadian lives. Nowadays, corporations provide essential services such as loans, banking services, vehicle leases or purchases, or communication services, on the condition that clients sign an adhesion contract drafted by them. These lengthy documents deny the possibility for Canadians to negotiate the terms and conditions that will legally bind them.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Nowadays, large corporate interests control an increasing part of Canadians’ everyday lives. These corporations require Canadians to enter into contracts to acquire various services, such as loans, banking services, vehicle leases or purchases, or communication services. The corporation drafts these contracts and presents them to consumers on a take-it-or-leave it basis, meaning their terms are non-negotiable. Referred to as consumer agreements or contracts of adhesion, they are often length and involve multiple clauses.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Large corporate interests control an increasing part of Canadian life. Corporations require Canadians to enter into contracts in order to receive services including loans, banking, vehicle leases or purchases and communication services. Corporations draft these often lengthy contracts, known as consumer agreements or contracts of adhesion, with non-negotiable terms—consumers must take them or leave them

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Today, large corporate interests control an increasing part of Canadians’ lives. To access various services such as loans, banking, vehicle leases and purchases, or communications, Canadians must contract with corporations, who present non-negotiable contracts on a take-it-or-leave-it basis. These contracts, known as consumer agreements or contracts of adhesion, are often lengthy documents with multiple clauses.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporations control the lives of Canadians. Contracts are required to enter into many services such as banking, loans, and vehicle purchases. These lengthy consumer agreements are known as contracts of adhesion, meaning the corporation sets all of the terms with no room for negotiation.

Canadians live in an era where an increasing part of their everyday lives is controlled by large corporate interests. In order to acquire various services, these corporations require them to enter into contracts. These contracts are for a wide variety of services – loans, banking services, vehicle leases or purchases, or communication services to name a few. The terms of the contracts are not negotiable. The corporate service provider drafts these contracts which are presented to the consumer on a take-it-or-leave-it basis. They are often lengthy documents, involving multiple clauses. They are known as consumer agreements or contracts of adhesion. Corporate interests pervade the Canadian service industry and restrict consumer choice. Consumers must enter non-negotiable contracts for basic services, including cell phones and banking. The corporate provider dictates the contract’s clauses and the consumer must accept the terms or go without the service.

2. It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment?

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? Without express terms in the Trust and Plan documents, can an employer discriminate between equal members through the division of trust assets?

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? When dividing trust assets, can an employer discriminate among equal members without express language authorizing such treatment?

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? As a result of a corporate divestiture, Company Name split their ongoing pension plan’s trust assets derived from employer and employee contributions. The plan members disagree with Company Name about how the trust assets were split. When Company Name split the trust assets, they treated identically placed plan members differently. Company Name made this decision unilaterally, not consulting with plan members. Further, Company Name did not follow guidelines from The Trust and Plan documents. The Trust and Plan documents are silent on how to split trust assets in the context of a corporate divestiture.

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? This appeal concerns a sales transaction involving an ongoing pension plan with employer and employee contributions. The issue is whether an employer in a corporate divestiture can divide trust assets unequally between identical members without explicit authorization from the Trust and Plan documents.

- The corporation is implementing a sale transaction; It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? This appeal raises a question of law regarding the division of trust assets in an ongoing pension plan during a corporate divestiture. Here is the scenario: - The corporation is implementing a sale transaction; - This sale will include trust assets in an ongoing pension plan; - Both the employer and employees contributed to the trust assets; - The employer wants to unilaterally divide the trust assets; - This division will discriminate between identically-placed groups of plan members; - There is no express language in the Trust and Plan documents authorizing differential treatment; between identically-placed groups of plan members. The question is, does the employer have the authority to act in this way?

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? This appeal hinges on whether an employer can treat two groups of employees differently without express authorization. Company X and its employees jointly contributed to a pension plan. These contributions are trust assets. Both the pension plan and the trusts are governed by a contract between Company X and its employees. Company X intends to sell the surplus of pension plan assets. However, to effect that sale, Company X proposes to unequally divide the trust assets between identical groups of pension contributors without express contractual authorization.

It is respectfully submitted that this appeal raises a broader question of law regarding the division of trust assets in an ongoing pension plan in the context of a corporate divestiture. The fundamental issue can be succinctly expressed - to implement a sale transaction involving an ongoing pension plan comprised of trust assets derived from employer and employee contributions, can an employer unilaterally divide the trust assets in a way that discriminates between identically placed groups of plan members, in the absence of express language in the Trust and Plan documents authorizing such differential treatment? This appeal raises a broader question of law about how trust assets in an ongoing pension plan are divided in a corporate divestiture. This is the fundamental issue: without express authorization from Trust and Plan documents, can an employer—when selling an ongoing pension plan comprised of trust assets from employer and employee contributions—unilaterally divide assets in a discriminatory way?

3. The decision of this Court in Schmidt v. Air Products Canada Ltd 3. The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets.

The decision of this Court in Schmidt v. Air Products Canada Ltd The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets. The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") established two principles in regard to pension plan surplus: (1) Following the establishment of a true trust, look to the applicable plan documents and determine the individual’s rights, duties, and obligations in relation to the pension plan assets; (2) The construction of the HBC plan documents results in the creation of a trust and the trust law principles apply and prevail in relationship to such assets.

The decision of this Court in Schmidt v. Air Products Canada Ltd The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets. The analysis of the principles applicable to pension plan surplus are set out in Schmidt v Air Products Canada Ltd. The case establishes the following general principles: 1.    Determine rights, duties and obligations in relation to pension plan assets: a.         Determine whether a true trust has been established through review of HBC plan documents  b.        Identify assets to which the trust applies 2.        Trust law principles are applicable in relation to such assets 

The decision of this Court in Schmidt v. Air Products Canada Ltd The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets. When a pension plan surplus exists, Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") established: (1) The pension plan documents must be examined to determine the rights, duties and obligations in relation to pension plan assets If, after examining the plan documents, a trust has been created, trust law principles apply and prevail in relation to the plan’s assets. (2) In order to conduct this analysis, it is necessary to first determine if a trust has been established and what assets the trust applies to  

The decision of this Court in Schmidt v. Air Products Canada Ltd The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets. The decision in case of Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 established two general principles applicable to pension plan surplus: (1) The applicable plan documents are the first place to look to determine the rights, duties and obligations in relation to pension plan assets. These documents will determine whether a trust has been established, and which assets are in the trust; (2) If, upon a proper construction of the HBC Plan documents, a trust has been created, trust law principles are applicable in relation to the assets in the trust  

The decision of this Court in Schmidt v. Air Products Canada Ltd The decision of this Court in Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 ("Schmidt") is the starting point for the analysis of the principles applicable to pension plan surplus. Schmidt established the general principle that one must first look to the applicable plan documents to determine the rights, duties and obligations in relation to pension plan assets. In this regard, it is critical to determine whether a true trust has been established, and, if so, the assets to which the trust applies. Schmidt further stands for the general principle that if, upon a proper construction of the HBC Plan documents, a trust has been created, another important principle follows: trust law principles are applicable and prevail in relation to such assets. The decision in case of Schmidt v. Air Products Canada Ltd., [1994] 2 S.C.R. 611 established two general principles applicable to pension plan surplus: (1) The applicable plan documents are the first place to look to determine the rights, duties and obligations in relation to pension plan assets. These documents will determine whether a trust has been established, and which assets are in the trust; (2) If, upon a proper construction of the HBC Plan documents, a trust has been created, trust law principles are applicable in relation to the assets in the trust