Canada: Pension Plan Expenses: Implications of the Kerry FST Decision on Your Expense Practice

Article by Mitch Frazer*

The increasing cost of pension plan administration has more employers asking whether pension plan expenses may be paid from the pension fund. The answer remains unclear, despite several high profile court cases. The state of the law on pension plan expenses is further muddied by the complex nature of pension plans, which are often based on agreements, first executed decades ago and amended many times. As a result, the courts are faced with interpreting lengthy and ever changing document trails, as well as a complex area of law grounded in pension, contract, trust and employment principles.

On March 4, 2004, the Financial Services Tribunal (the "FST") released Kerry (Canada) Inc. v. Superintendent of Financial Services and Elaine Nolan et al..¹ Kerry is a departure from the approach developed in a line of more recent pension cases in Canada that address the issue of payment of pension plan expenses. While Kerry is an important statement by the FST on the issue of plan expenses, it should be noted that the decision is currently under appeal. In order to properly situate Kerry in the current pension plan expense framework, we will review the relevant legislation, regulatory policy and caselaw. Our review will consider both the similarities and ambiguities in the law to highlight unanswered questions. We will contrast both the findings and effects of the Kerry decision with predecessor legal principles and statements. The focus of our review will be on the practical considerations practitioners should include in their pensions practices. This paper will focus on registered pension plans from an Ontario law perspective.

The PBA requires that pension plans contain a provision regarding the payment of administrative expenses. The relevant provisions of the PBA are as follows:

Therefore, all pension plans should specifically state which party is responsible for paying the costs of administration. A broadly worded or vague provision on plan expenses may still result in dispute as each party may have a different interpretation of the provision.

Section 22(9) of the PBA limits the payment of administrative expenses to the administrator of a pension plan to fees and expenses related to the administration of a pension plan and permitted by the common law or provided for in the pension plan.

The PBA also requires that administrative expenses be "usual and reasonable":

Accordingly, in any dispute, a plan sponsor must be able to demonstrate that expenses paid from the pension fund are usual and reasonable.

The Financial Services Commission of Ontario ("FSCO") provides the regulatory framework for adjudicating pension plan disputes, and publishes policy statements on a variety of issues, including treatment of plan expenses. FSCO has indicated its views, by way of administrative bulletins, on whether certain specified expenses, particularly certain types of fees, may be charged to the fund established by a pension plan. For example, it is FSCO’s position that actuarial or consulting fees, such as those incurred during collective agreement negotiations, are not "usual and reasonable expenses."³ With respect to finder’s fees and insurance broker commissions, FSCO’s position is that such expenses are permissible provided they are both "related to the administration of the pension plan" and "a usual and reasonable fee and expense for the services provided."⁴ Where an assessment fee is incurred in determining whether an actuarial surplus exists, FSCO is of the view that such an expense is not an administrative, but an employer expense, and thus cannot be charged to the fund.⁵

The examples above all condone payment of expenses related to administration, and prohibit payment of expenses classified as employer related from the fund. This assumption also underlies FSCO Policy A300-175, entitled "Handling of Plan Fund Expenses and Maintenance of Plan Records", which only provides guidance on the charging of administrative fees. In particular, the administrator’s ability to recover expenses from a pension fund requires that the following test be satisfied:

Unless the pension plan itself provides a mechanism for paying the administrative fees and expenses, FSCO policy dictates that no such payments may be made out of the pension fund.

From these FSCO policy statements, two related principles may be distilled. Firstly, as with the PBA, expenses related to the administration of the fund may be paid from the fund. Secondly, employer expenses, for which the employer is responsible, are comprised of those expenses which are incurred in relation to the plan, but are clearly the employer’s responsibility under statute or are for the benefit of the employer. However, some expenses may not be clearly categorized as either administrator or employer based. This problem is echoed in the PBA, which also relies upon the employer-administrator distinction to determine which expenses are chargeable to the plan.

Collectively, FSCO policies and the above quoted sections of the PBA provide that a plan must provide for plan administration, that certain expenses may be refunded to the plan administrator in respect of administrative expenses, and that expenses must be reasonable. As the caselaw in the area of plan expenses has developed, the following questions which are not answered by the PBA and FSCO policies, have arisen:

• What types of fees fall into the category of "related to the administration of the pension plan"?

• What types and under what circumstances are expenses are considered "reasonable"?

The uncertainty under the PBA and FSCO policy on the appropriate treatment of plan expenses has been the focus of debate in the growing body of pension plan expense case law. While a number of decisions have touched on the issue of plan expenses, three decisions in particular have been at the centre of this discussion. Each of these three decisions will be discussed under separate headings below.

A. Schmidt et al. v. Air Products of Canada Ltd.⁷

The Supreme Court of Canada’s ("SCC") decision in Schmidt was a landmark case that addressed, among other things, whether administrative expenses may be paid out of the pension fund. While Schmidt specifically addressed the issue of surplus ownership, general remarks in the case about the nature of pension trusts are relevant to the issue of how assets in pension funds may be used, and more specifically to the issue of whether administrative expenses may be properly paid out of such funds. The SCC began its analysis in Schmidt by noting that pension funds can be structured in several different ways, with insurance contracts and trust funds being the most common forms of funding. Thus, in determining whether administrative expenses are properly payable out of a pension fund, one must first review the original plan text and funding documents to determine whether contract law or trust law applies.

If a pension plan is not subject to a trust, it will be governed by the law of ordinary contract. In such cases, the question of whether a particular expense may be paid out of the pension fund is to be resolved by interpreting the construction of the clauses of the pension plan.

If a pension plan is subject to a trust, then any payment out of the pension fund must be made in accordance with the original terms of the trust, or in accordance with a valid amendment to that trust. The SCC commented on the significance of this in Schmidt:

Thus, if plan documentation contains a power of amendment, the amendment provision and any amendments providing for return of funds to the employer will be ineffective, unless the plan documents include a provision specifically permitting revocation of the trust.

B. Markle v. Toronto (City of) ⁹

The Ontario Court of Appeal (the "Court of Appeal"), in its decision in Markle, applied the Schmidt principles to the issue of payment of administrative fees and expenses from the fund for a pension plan. In Markle, the original plan provided that the City of Toronto (the "City") would be responsible for the payment of plan expenses. The plan also restricted the City’s power to amend the plan to recover contributions or to reduce accrued benefits. The plan was amended on three separate occasions to permit administrative expenses to be paid from the pension fund. The City also made an amendment to the plan such that the pension fund could be used to pay for administrative staff and services provided by the City in relation to the administration of the pension fund. The trustees of the plan requested that the court determine if the City could lawfully require the trustees of the plan to pay the City’s costs for administration of the plan.

The Court of Appeal concluded that the pension fund was a trust fund for the benefit of employees; that the City did not have the power to revoke the trust; and that the amendment constituted a partial revocation of the trust and thus a breach of trust.¹⁰ The Court of Appeal also held that while the City could amend the plan, it could not fully or partially revoke the trust. The Court of Appeal found that since the "essential element" of revocation is "removal of property or assets from the trust fund", the provisions of the amendment, which required the trustees of the plan to pay administrative expenses out of the pension fund, amounted to a partial revocation.¹¹ Since the power of revocation had not been reserved by the City at the time the trust was created, the Court of Appeal held that the amendment was not valid because it constituted a partial revocation of the plan trust and thus was a breach of trust.

In stark contrast to the lineage of cases beginning with Schmidt, the Ontario Financial Services Tribunal (the "FST") recently rendered the Kerry decision. In this case, the pension plan, funded via company and employee contributions, was impressed with a trust established in 1954, and restated in 1958. The original trust agreement stipulated that most expenses incurred by the trustee were to be paid by the company. Further, the settlor did not reserve a power of revocation under the terms of the original trust agreement. From the establishment of the plan to December 1984, the company paid all of the expenses relating to the plan and the fund. However, beginning in 1985, the company began to pay plan expenses from the pension fund.

In 2002, the Ontario Superintendent of Financial Services issued a Notice of Proposal to make orders requiring the company to repay all amounts paid out of the fund since January 1, 1985. Specifically, repayment was sought for the administrative expenses that were not incurred for the exclusive benefit of the members and beneficiaries of the plan. Additionally, the Notice of Proposal required that amendments be made to the plan and the trust, such that only expenses that were for the exclusive benefit of plan members could be charged to the fund. In response, the company requested a hearing before the FST.

The FST held that; (i) when a trust agreement provides that the company is required to pay all expenses relating to the plan and a trust agreement, this means that the company is responsible for ensuring that the trustee’s expenses were paid, but it does not prevent those expenses from being paid from the fund; and (ii) the "exclusive benefit" language in a trust agreement means that the fund has to be used for the "primary benefit" of plan members. With respect to the Kerry decision specifically, the FST concluded that the trustee fees, investment management fees and auditing fees could be charged to the fund. Further, actuarial and pension consulting fees could be charged to the fund, except those fees incurred in determining the feasibility of adding a defined contribution component to the plan. This decision is currently under appeal to the Divisional Court.

Schmidt, Markle and Kerry are all based on pension plans impressed with a trust. However, some plans are instead subject to the general law of contract. In determining what area of law governs a particular plan, the SCC in Schmidt stated:

Where the plan is found not to be impressed with a trust, the employee and the employer are bound by the terms of the contract, including any payment obligations and powers of amendment. If the contract does not provide for amendments to the plan, any subsequent amendments could be invalid by reason of breach of contract.

While Kerry is a departure from prior caselaw, the approach of the FST is similar to Schmidt in that it examines all the historical plan documents in order to interpret the intentions of the parties, to determine whether amendments to plan documents are valid. The need to examine all plan documents remains a critical step in deciding whether expenses may be charged to a pension fund.

Kerry is difficult to reconcile with other plan expense cases given its treatment of the amendment of the trust. Schmidt and Markle clearly set out the principle that in order to amend a pension plan to provide for payment of expenses from the pension fund, an express power of revocation must be reserved by the settlor at the time of the trust’s formation. In the absence of such reserved power, such an amendment will be invalid, and could constitute a breach of trust. In Kerry, the settlor did not reserve a power of revocation, a fact which played virtually no role in the FST’s decision.

The Court of Appeal in Markle, after determining that amendments to the plan were invalid, enforced the original terms of the plan, which provided that the expenses would be paid by the plan provider, and required the City to pay the expenses. The FST in Kerry found that an express expense provision stating that the plan provider would pay plan expenses meant that the plan provider was responsible for ensuring that pension plan expenses were paid, but did not prohibit the payment of those expenses from the pension fund.

Caselaw prior to Kerry supports the principle that plans impressed with a trust may contain provisions for the payment of expenses from the fund. With respect to the payment of expenses, the FST in Kerry made the following general comment:

The conclusion that plan administration expenses may be properly paid out of the pension fund, appears consistent with PBA s. 22(9), which authorizes a refund of expenses associated with the administration of a pension fund. However, the argument that plan documents need not contain specific provisions authorizing expenses is difficult to reconcile with decisions such as Schmidt and Kerry. It would appear that, in the absence of specific provisions in original documents, valid amendments providing for the payment of specific expenses would need be made. In such cases, the analysis, according to Schmidt, would depend on whether a power of revocation had been reserved at the time of the trust’s formation.

The decision of the FST in Kerry to treat the same type of expense differently, based upon the specific application is significant. The FST found that certain fees of consulting firms that related to the addition of a defined contribution option to the plan were not properly chargeable to the pension fund, while fees relating to the implementation of the option are properly chargeable to the pension fund. Practitioners should carefully consider whether certain types of expenses may be only partially allowed, depending on the application for which the fee or expense was incurred when providing advice.

The FST in Kerry declined to interpret the original text narrowly and literally, an approach that is widely divergent from predecessor caselaw.¹⁴ In particular, Kerry interpreted the phrase "exclusive benefit" as being synonymous with "primary benefit". In doing so, the FST demonstrated a willingness to provide a result that allows subsequent amendments to be validated by interpreting the words of the original trust documents pragmatically and broadly. This interpretation is inconsistent with the decisions in Schmidt and Markle, which have held that the literal meaning of the original text is paramount.

From a practical perspective, a flexible approach to plan interpretation does have some appeal. The decision in Kerry challenges the express language requirement set out in Schmidt, and in effect recharacterizes plan amendments in order to validate them. According to Schmidt, where no power of revocation has been reserved, an amendment that is different from the rights and obligations set out in an original document will be invalidated. However, validating amendments that differ from original documents or create rights not expressed in original documents, may in some cases be more appropriate, where new types of expenses emerge and it is clear that the original plan documents did not and could not have contemplated their existence.

The question of what constitutes a "reasonable" expense, to be paid in respect of the administration of the fund, pursuant to PBA s. 22 requirements, has not been squarely addressed by Kerry and its predecessors. However, a few clear principles may be identified when determining whether a particular expense may be charged to a fund:

• Historical plan documents will be carefully scrutinized by courts in determining whether plan expenses may be charged to the fund.

• Where a power of revocation has been reserved and there is clear language enabling the charging of expenses to the fund, such provisions are likely to be upheld.

• Practitioners should consider that certain applications of expenses, while permissible in one context, may not be permissible in another.

The appeal of Kerry with respect to the issue of plan expenses was heard by the Divisional Court on March 31, 2005 and April 1, 2005, and the balance of the issues in the case are scheduled to be heard starting April 18, 2005. While Kerry has gained much attention for its radical departure from existing caselaw, and the appeal decision is highly anticipated, Kerry is only one of several important decisions in the pension plan expense area. Schmidt and the cases that follow its principles will continue to be relevant in assessing whether an expense may be paid out of a pension fund. As plan expense issues gain momentum, it is expected that the case law in this area will be further developed as the FST increasingly addresses matters involving individual members and their disputes with plan sponsors or administrators. In the interim, practitioners should tread carefully in this highly contested area of pension law.

* With assistance from Valerie Arthur, an associate in the Pension and Employment Group of Torys LLP and Tara Sastri, student-at-law, Torys LLP.

2. R.S.O. 1990, c. P.8 [hereinafter "PBA"].

6. A300-175: Handling of Plan Fund Expenses and Maintenance of Plan Records - PBA, 1987 s. 22, s. 27 (Fall 1994) at p. 2.

8. Supra note 9 at 643.

13. Supra note 2 at 9.

14. The Court stated "We believe that expenses in relation to the Plan that are for the exclusive benefit of the members of the Plan, in the sense of the 1958 Trust Agreement, must logically mean expenses that are for the primary benefit of the members since no such expense can fairly be said to be for the exclusive benefit of the members on a strict literal view of that expression.[emphasis added]" Supra note 2 at 9.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.