Settlement Approved

TevlinGleadle is very pleased to announce that on October 31, 2008, Murray Tevlin and Dan Gleadle appeared before Madam Justice Ballance of the BC Supreme Court and the Court approved the settlement in the terms proposed. The Court approved the overall $5.75 million dollar settlement amount, the legal fees of class counsel calculated at 20% of the amount recovered, a proposed fee to Mr. Gregg for his hundreds of hours work advancing the claim on behalf of the class, and the method of distribution of the net amount recovered to the class members.

Now that the settlement is approved, certain further work remains to be done to complete the settlement.

Firstly, we will work with defence counsel and the Court to have the formal court orderer entered as an order of the Supreme Court of British Columbia. This work is now underway.

The court ordered that the defendants pay the settlement amount to a Trust Company nominated by Class Counsel, by December 1, 2008. We are in the process of identifying a suitable Trust Company to receive and disburse settlement funds.

Once settlement funds are in the hands of the Trust Company, a portion of the funds will be used to pay legal fees and the fee to Mr. Gregg, and a portion of the remaining funds will be reserved to pay the costs of distribution, indluding actuarial costs to determine individual entitlement.

Plaintiff's counsel has engaged the services of an actuary, Mr. John Christie, who will do the work needed to determine the actual entitlement of individual class members based on actuarial principles. This work will involve liaising with Freightliner's Counsel and its actuaries to obtain information about the pension rights of individuals.

Until the actuary, Mr. Christie, has obtain necessary information and completed required calculations, we do not know the full details of which persons will share, nor the actual amount to be distributed to each person.

Monies to be distributed to class members will be treated as taxable income, and before any payments can occur, it will be necessary for class counsel and counsel for Freightliner to agree on the required "withholding". Monies withheld in this manner will be remitted by the Trust Company to Canada Revenue Agency("CRA") for each recipient, to the tax account for that recipient, at an appropriate rate. It may be necessary to obtain a pre-clearance from CRA for the appropriate withholding percentages. Monies withheld in this manner may or may not be recoverable by individual recipients when they file their individual tax returns. Each recipient of monies should obtain tax advice from their financial advisors as to the tax treatment of monies withheld from the districtuion. It is expected that when monies are distributed, T slips will also be delivered.

It is important that we have on hand up-to-date contact information for everyone who believes that he or she may be entitled to share in the distribution. Current information should be sent to TevlinGleadle by email at the email address ktorgerson@tevlingleadle.com.

Distribution of entitlement of the monies recovered in this pension class action will not be handled by Freightliner, but instead by the Trust Company nominated by TevlinGleadle, upon instructions from TevlinGleadle.

A copy of the Order approving the settlement can be found here.

NOTICE OF SETTLEMENT AND PROPOSED DISTRIBUTION

On September 11, 2008, Dan Gleadle and Murray Tevlin appeared before Madam Justice Ballance of the BC Supreme Court to inform the Court of the settlement and to obtain directions for a process to obtain formal court approval. 
 
The Class Proceedings Act requires court approval as to the overall $5.75 million dollar settlement with the defendants, the legal fees of class counsel calculated at 20% of the amount recovered, a proposed fee to Mr. Gregg for his hundreds of hours work advancing the claim on behalf of the class, and the method of distribution of the net amount recovered to the class members.
 
The Judge, having read the extensive material which we had provided the Court, heard submissions from counsel and indicated that before final approval was given, notice of the proposed plan for distribution should be provided to class members.

Class Counsel intend to give notice to class members via publication on the TevlinGleadle website, word-of-mouth initiated by representative plaintiffs, and by emails to class members outside British Columbia where email addresses are available.
 
The Court directed that a date be set for a subsequent court hearing for final approval.  That date will be October 31, 2008. Any class member is entitled to attend at the court hearing to provide their views to the Court, or to engage their own legal counsel to represent them to advance their particular views in Court. 

 
Proposed Distribution of Settlement Funds

 
At the hearing at 9:00 AM on October 31, 2008 we will seek approval of our recommended settlement terms.
 
1. Who Will Share?  Class Counsel will propose that the net settlement amount be distributed only to persons who:

a. are members of the Western Star pension class proceeding, and

b. were, as at October 1, 2001, members of the Western Star Pension Plan or its predecessor pension plans (either pensioners, deferred vested pension plan members, or active employees with accrued pension benefits).

If you have a question about whether you are a member of the Western Star pension class proceeding, please see the definition of the Class in the Certification Order dated January 12, 2005.

For all purposes relating to distribution, individuals will be considered to have ceased to be members of the Western Star Pension Plan or its predecessor plans if, on or before September 30, 2001, they had elected to receive their interest in the pension plan by way of a commuted value payment or otherwise settled their pension entitlement and terminated membership in the Plan prior to that date.

Estates of such members who have passed away since October 1, 2001 will also be entitled to benefit.
 
2. Who Will Not Share?  No distribution will be made to any person who is not a member of the Western Star pension class proceeding. In addition, we will propose that no distribution be made to any person who ceased to have an interest in the pension plan on or before September 30, 2001. In particular, those persons who had at some time been members of the Western Star Pension Plan, or it predecessor plans but who had, on or before September 30, 2001, elected to receive the commuted value of their pension plan benefit, or otherwise settled their pension entitlement and terminated membership in the Plan prior to that date, will not share.

The actual wind-up of the pension plan proceeded on a cut-off date of January 1, 2000. However, it is proposed that the cut-off date for purposes of sharing in the distribution of the amount recovered in this class proceeding will be October 1, 2001.

3. Why Choose the October 1, 2001 cut-off date?   The claim in this case was in the nature of a claim to surplus existing in the plan at the time of termination, both actual surplus as well as any notional surplus which may have been created if the plaintiffs had succeeded in establishing liability on the part of the defendants for alleged misconduct in the administration of the Western Star Pension Plan.

Because a right to surplus only comes into existence at the time of termination, it is our view that the only persons with an interest in the claim are those persons who had an interest in the plan at the time of wind-up, the effective date of which was September 30, 2002. The cut-off date of October 1, 2001 will ensure that all individuals in this group will share in the settlement.

The October 1, 2001 cut-off date also has the effect of including those persons who elected to terminate their interest in the pension plan (including any surplus in the plan) after Freightliner’s decision to close the plant which was announced in October 2001. The logic of this extension is that once Freightliner made the decision to close the plant and announced it, all employee terminations and pension elections are properly considered part of the process of plant closure and wind up.

Employees who were terminated prior to learning of the decision to close the plant, (that is on or before September 30, 2001), and who chose to take their money out of the pension plan elected to terminate their interest in the plan, including any interest in a potential surplus, for reasons unrelated to the closure of the plan and wind up of the plan and cannot be considered to be persons who had a continuing interest in the plan at wind up.
 
This approach finds clear support in the leading Canadian text “Pension Law” by Ari Kaplan at page 581:

 
"Consent will also not be required from so-called “past members” of  the plan, that is, employees who used to participate in the plan but on termination of employment and plan membership, elected a portability option and transferred the commuted value of their pension entitlement to a locked-in retirement savings vehicle. Such persons have no legal claim to any of the surplus assets in the plan; since they “were not at risk over the years as to the performance of the Plan and they should not now, and latterly, be able to come along and insist on receiving a portion of the benefit which the plan has generated”

 

(quote taken from C.F. Kingsway case).

4. What Distribution Formula will the Court be asked to approve?  The court will be asked to approve a process for distribution.  We will ask the court to approve, firstly, the cut-off date for inclusion or exclusion of class members, and then secondly, a formula for calculating what each individual will get which will be recommended by an actuary.

The formula will be based on the actual amounts received by plan members in the actual plan windup in respect of their defined benefit pensions.

For example, if, in the actual plan windup, plan member A received an amount of $10,000 either as a cash refund, transfer to an RRSP or the purchase of an annuity and the total windup amount for all members who are eligible to share in this distribution was $20 million, the plan member’s share of the total windup liability was 0.05% of the total. Plan member A will now receive 0.05% of the total net amount available for distribution as a result of this settlement. Therefore, if the amount available for distribution in the class proceeding is $4.5 million (after legal and actuarial costs) A would receive a.05% of $4.5 million or about $2,250 less any withholding taxes or other deductions required by law.

5. What Specific Amount Will Individuals Receive?   This will not be known until after the Court approves the overall settlement amount, the legal fees, Mr. Gregg’s fee,  the cut-off date (i.e. who will share?) and the actuary gathers needed information and calculates individual entitlement.  Because of the need to gather precise information about each member who will share in the distribution, we expect that it will take some time after the Court approval before the amounts to be distributed to each individual are calculated.

6. Is it anticipated that any further Court Approval would be required prior to Distribution?  No.  It is anticipated that class counsel and the actuary, in co-operation with defence counsel, will take all steps necessary to complete distribution to individuals.

7. How will the actual distribution take place?  It is expected that the agreed amount of the settlement will be held in trust pending completion of the settlement. After the actuary has gathered all the precise data about each member entitled to benefit from the settlement and completed his calculations, he will advise class counsel of the amount to be distributed to each member.  Cheques will be issued to each member upon the direction of class counsel in accordance in with the Court approved formula. In the event that monies payable to any particular person or estate are not claimed within 6 months of the date of attempted first distribution, such monies will be distributed to those other persons who have received funds, proportionately, but no distribution of unclaimed money will be made if the recipient would receive less than $100. The balance of unclaimed and undistributed money will be paid to the United Way of the Central & South Okanagan/Similkameen.

8. What if you have questions, ideas or objections about the settlement or distribution?  Firstly, each class member can contact Dan Gleadle or Murray Tevlin for further information or to discuss ideas or objections.  Each class member is entitled to attend at the court hearing scheduled for October 31, 2008 to provide their views to the Court.  Anyone can engage their own legal counsel to represent them to advance their particular views in Court. 

9. What is the result of Settlement and Distribution once approved by the Court? Once approved, the settlement will be final and binding on all class members who did not opt out of the class pursuant to the terms of earlier orders of the Court. All claims by members of the class who have not opted out will be finally and absolutely extinguished and class members will be barred from bringing any further action against the defendants arising from or in connection with the WST Plan or any predecessor plans. This applies to all class members, whether or not they receive a share of the settlement.

Action Commenced

On April 16, 2002, TevlinGleadle commenced an action under the British Columbia Class Proceedings Act on behalf of Peter Gregg, a present Freightliner employee, as a representative member of the class of non-unionized employees of Freightliner's Western Star Truck plant in Kelowna, British Columbia.

Interested parties can review:

Submissions were made by counsel for Freightliner and the defendant Trust Companies, in opposition to the application for certification.When submissions were concluded, Madam Justice Bennett advised that she would take some time to consider her decision

.

 

 

 

• Case Management Conferences - January, 2005

   

At the CMC on January 12, 2005, Judge Bennett made the following orders:

 

• settled the terms of a formal Certification Order which added six new plaintiffs to the proceeding, to act as representatives plaintiffs on behalf of sub-classes of pension claimants.

   

  The representative plaintiffs are:

   

(a) George Schieven - Cockshutt Sub-Class & Non-Resident Sub-Class
(b) Peter Woolley - White Trucks Sub-Class
(c) Peter Gregg - White Western Star Sub-Class
(d) John Langergraber - White Motor Sub-Class
(e) Terry Barker - WSTI Pre-1985 Sub-Class
(f) James Gilchrist - WSTI Post-1985 Sub-Class

•  

  approved the filing of a Further Amended Writ of Summons and Further Amended Statement of Claim which includes claims advanced by the representative plaintiffs

   

• gave directions as to the manner in which the class action is to be advertised, to bring to the attention of the potential class members their rights to opt in or opt out of the proceeding.

   

  Details of the required notice procedure are contained in the Certification Order.

 

By Mid-February, 2005 TevlinGleadle, class counsel are to arrange for publication of notices of the certification in certain newspapers mentioned in the Order. The required language for the newspaper advertisement is available here.

 

By Mid-February, 2005, a mail out is to be completed by Freightliner in the form of the Long Form Notice, which gives added information about the class action.

PROCEDURE TO OPT IN OR OPT OUT

 

Participation in the class action is not mandatory. By reading the definition of the class in the Certification Order, all persons will be able to learn whether they are or could be included in the class.

 

BRITISH COLUMBIA RESIDENTS

 

British Columbia residents who are within the definition of the class are automatically participants in the class action and need do nothing, unless they wish not to partipate, in which case they must before May 15, 2005 fill in and deliver the Opt Out Notice (a copy of which can be obtained by clicking the link).

 

NON-BRITISH COLUMBIA RESIDENTS

 

Persons living outside British Columbia residents who are within the definition of the class are not automatically members of the class action. If such persons do not wish to participate in the class action they need do nothing. If they wish to particiapate in the class action they must before May 15, 2005 fill in and deliver the Opt In Notice, a copy of which can be obtained by clicking the link.The Opt In and Opt Out Notices are available in adobe.pdf format, and if problems are encountered in downloading the forms, you may need to obtain the free Adobe Reader program which is available by clicking on the Get Acrobat Reader icon below.

 

 

Case Management Conference October 18, 2006

 

At the case management conference Judge Bennett directed that:

 

• the matter was to be set down for a 4 week trial of the common isses

   

• all parties were to complete electronic document exchange, whereafter class counsel would prepare and circulate a proposed agreed statement of facts and list of agreed documents for use at trial.

   

   

   

Case Management Conference April 4, 2007

 

At that conference, the court directed that Plaintiff's counsel is to finalize a proposed Agreed Book of Documents by May 4, 2007 and a proposed Agreed Statement of Facts by May 25th, 2007.

 

Another Case Management Conference is to be held before June 8th. to discuss cut off dates for futher matters such as examinations for discovery and the like.

 

In the fall of 2006, the matter was scheduled for a 4 week trial (of the common issues) commencing on April 14, 2008.

 

See Notice of Trial

 

 

 

• Case Management Conference June 5, 2007

   

  The court directed that the following be done in advance of the trial:

   

  Plaintiff's counsel to finalize Index of joint document books and provide to defence counsel as soon as practical

   

  Plaintiff's counsel to provide list of potential Examination for Discovery candidates by June 29th, 2007

   

  Defendants to conduct an additional search for relevant documents, to provide such documents to Plaintiff's counsel as located, and to provide a Supplemental List of Documents by August 31, 2007. Index to be updated with additional documents for joint boosk of documents

   

  Defendants to answer Interrogatories (regarding expenses of trust paid from pension fund, and extent of contributions to fund) by September 28, 2007

   

  • Examination for Discovery's to commence by Ocober. 15, 2007

 

 

New Judge Assigned

 

The Honourable Justice Sandra Ballance was assigned as the judge responsible for the action in place of Judge Bennett.

 

 

 

 

 

 

 

 

Frequently Asked Questions - Pension Class Action

Am I a member of the Pension Class Action?

In the Statement of Claim, filed on behalf of the class members, the persons included in the pension class are as described follows:"All persons who are members or former members of the pension plan for non-bargaining unit employees of Freightliner Canada, Western Star Trucks division, their respective surviving spouses, former spouses, designated beneficiaries, personal representatives, and all other persons who are beneficiaries of the said pension plan.

At this point the court has not yet approved these classes. The court may approve these classes, vary the classes or simply not approve the classes. There will be a hearing in the Supreme Court of British Columbia in Vancouver on this issue, and we are hopeful that we will get the two classes approved as soon as possible."BC Residents: If you are a resident of British Columbia, you will automatically be a member of the class by falling within the definition outlined above. You do not have to do anything to be part of the class. If you do not want to be part of the class, you will have the opportunity to "opt out" at a later date, after certification of the claim as a class action.Non-BC Residents: If you fall into the above definition, but are not a resident of British Columbia, you will have the opportunity to "opt in" to one or both of the classes, in a manner that will be specified later in the proceedings.

What is the Class Action all about - what claims are being made?

In the class action, the plaintiff seeks to recover judgement for all of the claims described in the Statement of Claim. Some of the claims made are:

a claim for a declaration that Freightliner has breached its obligation to pension benficiaries by withdrawing surplus funds that belonged to the workers and their families

 

a claim for a declaration that Freightliner has breached its obligation to pension benficiaries by failing to make appropriate contributions to the pension fund over the years

 

a claim for a declaration that Freightliner would be in breach of its obligations in using pension funds to pay for the administion costs of the plan, including costs of terminating the plan

 

If I accept a severance package from Freightliner, will this affect my ability to recover in the Pension Class Action?

This depends on the language of any Release you may sign. It is unlikely that your claim on the pension plan portion of the class action will be affected if you accept a severance package, unless you sign a Release which covers your pension. The specific language must be carefully checked.

I am currently receiving a pension from Freightliner's pension plan, how am I impacted by this class action?

If you are currently receiving a Freightliner pension, and you are a BC resident, once the class action is certified, you will automatically be part of the class action. If you are not a BC resident, you will have a chance to "opt in" to the class action claim.Your current pension benefits will continue unaffected by the class action. If we are successful in the action you may become entitled to a lump sum payment or an increase in your benefits.

Does it cost me anything to take part in the class action?

No, not at this point. If we are successful in the action, with the court's approval, a portion of the award that we obtain for each of the members will go towards our legal fees and disbursements.

If we are unsuccessful in the action, there will be no costs.If I move to another province or out of the country, can I still take part in the class action?

Yes, you can still take part in the class action if you move away from British Columbia.

What information and documents should I send to TevlinGleadle?

We will provide a form of questionnaire to be completed by the class members in due course. This questionnaire will describe the documents we will need. In the meantime you should organize and preserve documents relevant to your work history and your pension.

What if I want to "Opt Out" of the Class Action?

You will have an opportunity to opt out of the class action once the court has certified the proceedings and approved the classes. After certification, class members will be able to obtain a form to be completed by anyone wishing to opt out, by download from this website.

What if I want to "Opt In" to the Class Action?

You will have an opportunity to opt in tothe class action once the court has certified the proceedings and approved the classes. After certification, class members will be able to obtain a form to be completed by anyone wishing to opt in, by download from this website.

How long will it take for the Class Action to be resolved?

The answer to this question depends on circumstances which cannot be determined with certainty at this stage. Depending on the nature and extent of discussions between TevlinGleadle, class counsel, and counsel for the defendants, early resolution of some or all of the issues might be achieved. Early steps are being taken in the action, to exchange formal positions (Statement of Claim, Statements of Defence), and to seek an order certifying the proceeding as a Class Action. The certification application is required by the Class Proceedings Act to occur within 90 days of the time when the defendants are supposed to have filed their Statements of Defence. Worst Case Scenario: If all issues are fully disputed, and no agreements can be concluded with the defendants, and if all appeals are taken, final resolution of all claims might not occur for up to several years. However, we are committing all our resources now, seeking a fair resolution to all issues at the earliest possible date.