Pension Surplus Trial -
Court Rules Key Documents Admissible
January 12, 2006
In a decision dated December 23, 2005, Justice Panet of the Ontario Superior Court of Justice ruled that 128 internal government documents would be admitted into evidence in the court cases challenging the federal government’s confiscation of over $30 billion of surplus in the superannuation plans for the Canadian Forces, the RCMP and the Public Service.
The issue regarding the admissibility of the documents arose during the first week of the pension surplus trial which took place November 15-18, 2005. The plaintiffs sought to put 128 documents consisting primarily of statements, policies and communications by high level government officials before the court. These documents show that during the 1990s, the government was using questionable accounting techniques to appropriate the surplus and pay down the deficit. They also reveal disagreements between Treasury Board and Ministry of Finance officials over the ownership and use of the surplus. The government lawyers objected to the admission of these documents, claiming that it had not been established that they were relevant to the issues in the case and that they were hearsay.
Justice Panet found that all of the documents contain statements that are relevant to crucial issues in the cases, namely the establishment, structure, operation, financing and accounting of the pensions.
Although Justice Panet held that many of the documents were hearsay, he ruled that they were nevertheless admissible since they were both “reliable” and “necessary”. As documents prepared by senior and knowledgeable government officials, the judge stated that it would be reasonable to expect a “high premium to be placed on their accuracy”. Given the circumstances and since there was no litigation at the time he found that the documents would also likely be characterized by candor.
The court further found that the documents were necessary because having regard to the variety of the documents and the length of time over which they were created, it would be difficult, if not impossible to locate all of the authors of the documents. Even if they could be located, Justice Panet held that it would be more efficient and expedient to admit the documents rather than require the all of the authors of the documents to testify. He also found that it would be unfair to require the plaintiffs to call the authors of the documents who would might well be witnesses adverse in interest to the plaintiffs. Justice Panet stated that, “it is open to the Defendant to call the authors of the documents or other officials to explain the statements made in the documents.”
The next phase of the trial is expected to commence in the spring of 2006 and will take approximately three to four weeks.