Employee Pension Rights and the False Promise of Trust Law

This article explores the jurisprudence of the Supreme Court of Canada on employment pension trusts. I argue that the Court\u27s 1994 decision in Schmidt v. Air Products, which embraced trust law as a tool for resolving pension surplus ownership disputes, held out the promise that courts would use fiduciary principles to shape pension rights for employees and protect those rights against employer self-interest. That promise has failed to bear much fruit. Since Schmidt, the Court has moved away from a conception of trust law as a fetter on employer power towards a flexible conception in which employer trust obligations are defined almost entirely by the terms ofpension documents which those employers have themselves drafted. In the hands of Canadian courts, trust law has failed to operate as an independent source of rights for plan beneficiaries; instead, it has empowered employers to frame and administer plans in accordance with their own interests, even when those interests conflict with those of employee plan members. I argue that the common law offered the courts other choices; the choices they made reflect a commitment to employer pension control as fundamental to the survival of a voluntary employment pension system