SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY : { APR 1 9 2012 t,;':';. :--l J,... IN THE SUPREME COURT OF BRITISH COLUMBIA No. Vancouver Registry BETWEEN: WILLIAM ROBERT BROOMFIELD DYER, suing on his own behalf and in a representative capacity on behalf of all salaried, non-unionized Canadian retired employees of MacMillan Bloedel Limited, including such employees who became employees of Weyerhaeuser Company Limited, who were covered under the MB retirement medical benefit plan and who retired prior to January 1, 2002. Plaintiff AND: WEYERHAEUSER COMPANY LIMITED Defendant NOTICE OF CIVIL CLAIM Brought under the Class Proceedings Act This action has been started by the plaintiff for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must (a) file a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and (b) serve a copy ofthe filed response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must (a) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and 6ouuly2011 Page 1 of 9
(b) serve a copy of the filed response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. Time for response to civil claim A response to civil claim must be filed and served on the plaintiff, (a) if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service, (b) if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service, (c) if you were served with the notice of civil claim anywhere else, within 49 days after that services, or, (d) if the time for response to civil claim has been set by order of the court, within that time. Part 1: STATEMENT OF FACTS The Representative Plaintiff CLAIM OF THE PLAINTIFF 1. The plaintiff, William Robert Broomfield Dyer is a resident of British Columbia, and is a retired employee of MacMillan Bloedel Limited ["MB"], with an address for service at 500-128 West Pender Street, Vancouver, British Columbia, V6B 1R8. 2. The plaintiff began his employment with MB in or around 1956. He was continuously employed by MB until his retirement in or around 1997. He was 63 years of age on the date of his retirement, and is now 78 years old. The Class 3. This action is brought on behalf of the plaintiff and all persons, wherever they reside, who are former Canadian, salaried, non-unionized employees ofmb, including such employees who became employees of Weyerhaeuser Company Limited ["Weyerhaeuser"], who were covered under the MB retirement medical benefit plan and retired prior to January 1, 2002, and were not members of the Advantages Retirees Benefits Plan established by Weyerhaeuser in 2001 [collectively the "Class Members"] 6ouuly20II Page 2 of 9
The Defendant or such other class definition as this court may ultimately decide on the motion for certification. 4. The defendant, Weyerhaeuser, is an extra-provincial corporation, registered in British Columbia in 2000 with a registered office address at 500-925 West Georgia Street, Vancouver, B.C. V6C 3L2. 5. MB amalgamated with Weyerhaeuser, and the amalgamated extraprovincial company was issued a Certificate of Registration by the Registrar of Companies on November 9, 1999. 6. Weyerhaeuser assumed responsibility for the employees who retired prior to the amalgamation. The decision from the British Columbia Supreme Court 7. On March 9, 2012, the Supreme Court of British Columbia issued a decision in Lacey and others v. Weyerhaeuser Company Limited, 2012 BCSC 353 ["Lacey"], an action against Weyerhaeuser brought by five plaintiffs, based on the same factual circumstances as this action commenced by the plaintiff and all other Class Members. 8. In Lacey, the Honourable Mr. Justice A. Saunders found in favour of the plaintiffs, and determined that the retiree health benefits offered to the plaintiffs were done "en masse", therefore communications with an employee or group of employees with respect to the benefits may be relevant to determining the nature or character of the benefits as an aspect of the employment contracts of the salaried employees as a whole. 9. Further, the court in Lacey ordered the plaintiffs were entitled to: continuing payment by the defendant of B.C. Medical Services Plan premiums for themselves and their spouses, extended health benefits available to retirees and their dependants as of the date of retirement, without alteration of the scope of coverage, coverage limits or deductibles, all at the defendant's continuing expense, damages in the amount of all premiums the plaintiffs paid to M.S.P since their benefits were reduced by the defendants, and a refund of all premium assessments paid in respect of their extended health coverage. 1 0. The defendant has taken the position that it will not apply the decision from Lacey to any other retirees. 6oiJuly20II Page 3 of 9
Background 11. On January 3, 1968, and reissued on February 3, 1989, MB issued Management Policy Number 118, Medical Plans for Retirees, affecting all employees in the Canadian Operations [the "Management Policy"]. 12. The Management Policy provides that MB will pay the premiums required under Medical-Surgical-Hospital Plans, and premiums under the Extended Health Insurance Plans. 13. The Management Policy continues payment for employees under the terms of the Company sponsored retirement plan. 14. The Management Policy provides that employees covered under the sponsored retirement plan are provided coverage upon retirement if the employee qualifies, depending on the age of the employee at the time of retirement, and the corresponding years of service. 15. The-Management Policy provides dependants and widows/widowers coverage if they qualify. 16. An Employee Manual entitled "MB and You" [the "Manual"]. was distributed to all MB employees upon hire. 17. The Manual expressly states MB will pay Medical Service Plan ["MSP"] premiums along with coverage under extended health insurance plans for employees who retired. Section 6 of the Manual under the heading "Benefits for You and Your Family" explains the benefit upon retirement "represent a significant form of compensation to you." 18. The plaintiff and all other Class Members were periodically issued an Employee Benefits Summary. This reiterated that when the plaintiff and all other Class Members retired, they would be entitled to: (a) An extended health insurance plan provided for the lifetime of each employee, and their spouse, the premium paid for by the defendant; and (b) Provincial Hospital I Medical Insurance, the premium paid for by the defendant. 19. In and around September 1994, MB produced a new policy manual entitled "Partnership for Success" ["1994 Policy Manual"]. / 20. The 1994 Policy Manual includes a clause reserving the right to make changes to benefit and pension programs. If any changes are made, the employees will receive updates. 6o 1July20 11 Page 4 of 9
21. No updates were ever received by the plaintiff or any other Class Member. 22. The 1994 Policy Manual contains the heading "Compensation" and provides the compensation package for employees include both direct and indirect benefits paid for by MB, namely: base salary, incentive pay, vacation, medical, and dental [the "Contract"]. 23. Over the course of their employment, MB represented to the plaintiff aild all other Class Members that the level of compensation to salaried staff was lower than what was provided by comparable employers in the industry due to the benefit package offered by MB, including benefits upon retirement. 24. MB also represented that the benefit package, including retiree benefits, placed MB near the top of the industry for compensation. 25. The plaintiff and all other Class Members qualified for the benefits under the Contract upon their retirement. 26. Prior to and following the amalgamation ofmb and Weyerhaeuser, some employees who involuntarily retired and received a lump sum payment upon retirement were required to sign a release [the "Release"]. 27. The Release includes a provision explaining the terms of the release set out the entire agreement between Weyerhaeuser and each employee are contractual and are not a mere recital. 28. On or about January 1; 2001, the defendant introduced a new Retiree Benefit Plan, covering pensions and benefits for non-unionized employees. This plan was named "Advantages Retirees Benefits Plan" ["Advantages Plan"]. 29. In a letter dated July 1, 2001 sent to all Canadian staff employees, the defendant outlined the Advantages Plan. Anyone 50 years of age or older as of December 31, 2000 had a choice to receive retiree medical benefits under the previous retirement plan, or under the Advantages Plan. The employees had to make their selection by September 1, 2001, and if they failed to do so, they would be enrolled in the Advantages Plan. Employees under the age of 50 as of December 31, 2000 were automatically entitled to the Advantages Plan upon retirement. 30. The plaintiff and all other Class Members were informed they were 'grandfathered' in their previous plan, therefore the level of benefits in place at the time of their retirement would continue. 6oJJuly20ll Page 5 of 9
31. The plaintiff and all other Class Members not covered under the Advantage Plan were sent a letter from the defendant dated December 21, 2007 in error, as it explained changes to the Advantages Plan. 32. A subsequent letter sent on or around January 2, 2008 to the plaintiff and all other Class Members apologized for the error, and confirmed the letter was sent in error. This letter contained a stipulation that the defendant reserved the right to change or terminate policies and plans under the Retiree Benefit Plan for current and future retirees, spouses and dependants, if necessary. 33. Mr. Lome Lacey, then President ofmacmillan Bloedel Weyerhaeuser Retired Salaried Employees Club, replied in a letter dated January 21, 2008, expressing concern over the clause reserving the defendant's right to change or terminate policies, as the defendant did not have the unilateral right to change or terminate retirement commitments provided in the Retiree Benefit Plan. 34. The defendant replied in a letter dated January 29, 2008, and agreed that any future plan funding changes would need to consider the status of individual retiree groups. 35. In or around October 2009, the plaintiff and all other Class Members received notice that effective January 1, 2010, the defendant will freeze employer contributions at fifty percent, for the cost of retiree benefits, including extended health care, MSP, and life insurance [the "Benefits"]. Additionally, the October 2009 notice indicated that the plaintiff and all other Class Members are solely responsible for paying any premium rate increases for the Benefits. 36. In a letter dated October 24, 2009, Mr. R. H. DeClark, President of the MacMillan Bloedel Weyerhaeuser Retired Salaried Employees Club, asked the defendant to reconsider their position as they do not have the unilateral right to change or terminate commitments. 37. In a letter dated November 2, 2009, Mr. Lacey wrote to the defendant rejecting the October 2009 letter sent to the plaintiff and all other Class Members. 38. Until in or around June, 2010, the plaintiff and all other Class Members received their Benefits pursuant to the Contract. 39. Beginning in or around June 2010, the defendants unilaterally altered the Contract by freezing employer contributions for the Benefits at fifty percent. 6oiJuly201I Page 6 of 9
Part 2: RELIEF SOUGHT 1. The plaintiff on his own behalf and on behalf of the Class Members seeks the following relief: (a) an order certifying this action as a class proceeding and appointing the plaintiff as representative plaintiff; (b) an order that the plaintiff and all other Class Members are entitled to continuing payment, by the defendant, of B.C. Medical Services Plan premiums for themselves and their spouses; (c) an order that the plaintiff and all other Class Members are entitled to the extended health benefits available to retirees and their dependants as of the date of their retirement, without alteration of the scope of coverage, coverage limits or deductibles, all at the defendant's continuing expense; (d) an order that the plaintiff and all other Class Members are entitled to damages in the amount of all premiums they have paid to M.S.P. since their benefits were reduced by the defendants; (e) an order that the plaintiff and all other Class Members are further entitled to a refund of all premium assessments paid in respect of their extended health coverage; (f) pre-judgment interest and post-judgment interest according to the Court Order Interest Act, R.S.B.C. 1996, c. 79; and (g) such further and other relief this Honourable Court may deem just and equitable in all of the circumstances. Part 3: LEGAL BASIS 1. The plaintiff and all other Class Members' claim is against the defendant for breach of contract due to the defendant's unilateral alteration of the Contract between the defendants and the plaintiff and all other Class Members by freezing employer contributions for the Benefits at fifty percent. 2. As a result of the defendant's breach of contract, the plaintiff and all other Class Members have suffered, or will suffer, damages in the amount of fifty-percent of the cost of the Benefits, along with any future increase in costs ofthe Benefits. 6ol1uly20II Page 7 of 9
Plaintiffs address for service: Victory Square Law Office LLP 500-128 West Pender Street Vancouver, BC V6B 1R8. Fax number address for service: 604-684-8427 Place of trial: Vancouver, British Columbia The address of the registry is: 800 Smithe Street, Vancouver, B.C. V6Z 2E1 Date: 19/Apr/2012 ~J_" -----~----~~~------------------- Signature of lawyer for the plaintiff John Rogers, Q.C. Rule 7-1(1) ofthe Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (a) prepare a list of documents in Form 22 that lists (i) all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and (b) serve the list on all parties of record. APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: A claim for damages for a breach of contract. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A dispute concerning: [ X ] an employment relationship 6oJJuly2011 Page 8 of 9
Part 3: THIS CLAIM INVOLVES [ X ] a class action Part 4: The Class Proceedings Act, R.S.B.C. 1996, c. 50 Court Order Interest Act, R.S.B.C. 1996, c. 79 60JJuly201 I Page 9 of 9