This article was originally published in Blakes Bulletin on Pension & Employee Benefits in September 2005
Article by John Solursh, ©2005 Blake, Cassels & Graydon LLP
In 2005, the law on pensions and employee benefits has continued to see significant changes implemented or proposed. Here are some of the most recent pension and benefits cases, as well as developments in Canadian legislative and regulatory policy.
Use of Surpluses Through Plan Merger. In Baxter v. Ontario (Superintendent of Financial Services), the main issue was whether, upon a merger of two pension plans, the surplus of one of the original plans could be used to fund a deficit in the other plan involved in the merger.
National Steel Car had maintained a pension plan for its salaried and hourly employees that expressly permitted mergers with other pension plans and the reversion of surplus to the employer. In 1965, the plan was divided into one for salaried hourly-paid employees and another plan for hourly-paid employees. The right to merge plans was included in the new plans. In 1994, the company changed the funding arrangements to pension trust agreements. In January 2000, the company informed members, former members, and retirees of both plans that it was going to merge the plans retroactively to March 1, 1999 and it obtained the consent of the Superintendent to transfer surplus funds from the Salaried Plan to the Hourly Plan.
Members of the Salaried Plan appealed to the Ontario Financial Services Tribunal, arguing the transfer did not protect “the exclusive rights to all the benefits of the contributions to the Salaried Plan to be enjoyed only by the Salaried members.” The Tribunal dismissed their action and the Salaried members appealed to the Ontario Divisional Court.
The court upheld the Tribunal’s decision and made a number of comments that may support some future mergers and other inter-plan transfers. The court said that an actuarial surplus is not a “benefit” under the PBA. Moreover, the right to a surplus does not crystallize on a transfer between plans and the PBA did not provide for a right to distribute the surplus upon a plan merger.
The Salaried Plan was not subject to a trust. Even if assets were subject to a trust, the terms did not preclude the present merger. The plan merger and related transfer of surplus assets were held to be valid on the facts in this case. The court’s reasons are also interesting in two other respects:
The standard of review of decisions of the Financial Services Tribunal on the regulatory issue was “reasonableness simpliciter” and there were statements by the court recognizing the expertise of the Tribunal on pension matters. Arguably, the Divisional Court was seeking to counteract some negative dicta by the Supreme Court of Canada in Monsanto.
The reasons, adopting statements in Monsanto, stress the PBA maintained a delicate balance between employer and employee interests in a way that promoted private pensions.
Fiduciary Duty Re: Plan Amendments. The Quebec Court of Appeal recently rendered its much-awaited decision in Association provinciale des retraités d’Hydro-Québec v. Hydro-Québec. The most important question was whether, according to the Civil Code of Québec and the Supplemental Pension Plans Act, the employer in its capacity as a sponsor of a pension plan is bound by a fiduciary obligation requiring all participants, active and non-active, be treated in an even-handed, equitable manner and without any bias when a plan amendment is negotiated or imposed.
The Court of Appeal decided the employer did not have such an obligation. In this case, a group of retirees alleged the agreed use of surplus by Hydro-Québec and employees, through their union, was detrimental to their interests. Retirees were not consulted or treated in an equitable fashion when the decision was made to use the accumulated surplus to increase certain benefits for active employees (including early retirement benefits) and to reduce the contributions to be paid by Hydro-Québec and the employees.
The appeal court held the retirees were not entitled to increased benefits and neither the Civil Code nor the Supplemental Pension Plans Act require they consent to modifications to the pension plan. The court also concluded a union and employer can agree to use plan surplus to reduce pension plan contributions without the retirees’ consent. The decision confirmed the employer was not acting as a plan fiduciary, but as a plan sponsor when it amended the pension plan.
This decision is of interest to administrators of pension plans and employers in Québec and elsewhere in Canada. Even though many surpluses have vanished in the past few years, the reasoning of the court still applies in other circumstances. This case can be interpreted as standing for the general proposition that contribution holidays do not constitute an appropriation of funds. The fund remains intact and contribution holidays simply reduce the contribution rate. Further, subject to the facts in a specific case, an employer can amend the terms of a bargained pension plan with the union’s consent to use surplus to enhance benefits of members without having to obtain the retirees’ consent provided, as in this case, there is no attempt to reduce the retirees’ accrued benefits.
An application for leave to appeal this decision to the Supreme Court of Canada was filed on May 9, 2005. If leave is granted, a final decision on the issues raised in this case will likely not occur until at least 2006. In the meantime, the Québec government has enacted Bill 195 which contains a new requirement to obtain approval of any plan amendments that confirm the right of the employer to suspend employer pension plan contributions from both non-unionized employees and non-active members, retirees and survivors who are in receipt of benefits.
Accrued Rights. In Dinney v. Great West Life Assurance Co., the Manitoba Court of Appeal considered whether retirees had vested rights to indexing even though the amount of the annual increment was not fixed in the pension plan.
In 1972, Great West Life amended its defined benefit pension plan to provide that benefits paid to retired employees would be increased based on the investment performance of the investment fund. In 1990, Great West Life amended the plan to among other things, change the reference to increases tied to the investment performance of the fund so that increases would no longer be based on fund performance. As a result, increases to retiree benefits were significantly less than they would have been if the mathematical formula based on investment performance had continued to be used. The main issue in this case was whether the retirees had a vested right to the increments based on investment performance with the result that Great West Life could not amend the plan in this regard.
The Manitoba Court of Appeal observed that the retirees had vested rights to the annual increment according to the plan terms as long as the amount was calculable regardless of whether the annual increment was fixed to the particular amount of money.
The Court of Appeal concluded that the plan provision that granted the increment was ambiguous and therefore its meaning could be interpreted from the subsequent conduct of the parties and parol evidence. The court found that Great West Life's internal and external communications supported the conclusion that “the 1972 amendments introduced a contractual form of pension indexing that was intended to be “automatic” rather than discretionary”. Furthermore, under the contra proferentum rule of contract interpretation, a conflict between the terms of the plan and communications with the employee should be construed against the draftsman (in this case the company).
Application of Ontario Inter-Plan Transfer Provisions to Québec Members. In the case of Vivendi Universal Canada Inc. v. Ontario (Superintendent of Financial Services), the main issue relates to whether the Ontario Pension Benefits Act (OPBA) provisions in respect of the transfer of surplus assets on the sale of a business can apply to Québec members who would otherwise be entitled to a pro rata share of surplus assets under the Québec Supplemental Pension Plans Act (SPPA). In Vivendi Universal Canada Inc. v. Ontario (Superintendent of Financial Services), Vivendi had sold assets of its wine and spirit business to Diageo under a purchase and sale agreement that provided that Diageo would assume liabilities accrued under the Vivendi pension plan (the Seagram Plan) for the employees transferred to the Diageo pension plan. The Seagram Plan would transfer pension assets equal to the accrued pension liabilities (not including any pro rata share of potential surpluses) for the transferred employees to the new Diageo plan.
The Seagram Plan has a large surplus. The majority of Seagram Plan members live in Ontario, where the Plan is registered, and a few employees lived in Québec. Vivendi and a committee representing the present and former members of the Seagram Plan (the Members) entered into an agreement to share surplus between Vivendi and the Members (including transferred employees) after the transfer of assets to the newly established Diageo plan. The SPPA requires that a pro rata portion of the plan’s surplus assets be transferred to the successor plans established by Diageo, which would allow Diageo to take contribution holidays. The Ontario Superior Court held that the OPBA did not require the surplus to be transferred and that the entire amount of the Seagram Plan surplus was available to be shared by the Vivendi and the Members (including transferred members).
Ontario and Québec (along with other jurisdictions) are parties to a Reciprocal Agreement that provides that a pension plan is to be regulated by the province where the plurality of plan members are employed. Based on the position of the Ontario Superior Court, the Québec regulator decided to withdraw from the Reciprocal Agreement. The validity of the Régie decision has been appealed to the tribunals in Québec.
In the meantime, Vivendi has applied to the Ontario Superior Court for a declaration that the OPBA, and not the SPPA, governs the transfer of assets from the Seagram Plan to the Vivendi Plan. A motion brought by the Régie to dismiss Vivendi’s application on the basis that the Ontario Court does not have jurisdiction to hear the case has been dismissed until an appeal of the Régie decision to withdraw from the Reciprocal Agreement has been fully determined by the Québec courts. The Régie retains leave to argue that Vivendi’s application is “moot” if the Québec courts support the Régie right to withdraw.
Legislative and Regulatory Activity
New Federal Consultation Paper. In May 2005, the Department of Finance issued a consultation paper regarding proposed changes to the Pension Benefits Standards Act, 1985. Public input, with a submission deadline of September 15, 2005, is requested on:
- Distribution of Plan Surpluses After Monsanto. Whether partial plan terminations should be allowed and, if so, whether there should be a requirement to distribute the surplus at the time of the partial terminations. Also, whether improvements should be made to the dispute settlement mechanisms for surplus distributions.
- Funding. Questions touch on disincentives or obstacles preventing plan sponsors from adequately funding plans, use of letters of credit to fund solvency deficits, the length of amortization periods, and whether and how greater disclosure of a plan sponsor’s financial condition should be provided.
- Void Amendments. Whether the PBSA should void amendments based on a prescribed solvency ratio level of 85% or at other levels that increase plan benefits and whether pension plans with solvency ratios below the set level should be permitted to make plan improvements if the offsetting funding is provided at the time the improvement comes into effect.
- Full Funding on Plan Termination. Whether plan sponsors should have an obligation to pay into the plan the full amount necessary to provide the promised benefits to plan members upon termination.
- Pension Benefit Guarantee Fund. Whether the federal government should create a backstop fund to provide compensation to plan members if the employer becomes bankrupt or insolvent, and the pension plan is underfunded.
Income Tax Regulations Amendments. The federal government recently released a Regulatory Impact Analysis Statement that discusses a list of proposed regulations implementing income tax measures declared in the 2003 and 2005 budgets, as well as some technical tweaks. These include:
- Changes to requirements for certain corporations and trusts to file an information return
- Addition of new types of investments for the list of qualified investments for RRSPs, RRIFs, RESPs, and DPSPs
- Elimination of penalty tax on certain investments by trusts and other tax-exempt entities governed by RPPs and other deferred income plans
- Applicability of the prescribed factors that currently only apply for the purposes of determining the minimum amount that an annuitant under a RRIF is required to withdraw each year from the fund to also apply for the purposes of determining the minimum amount in connection with variable benefits under a money purchase RPP
- Changes to the rules for the determination of PAs, PSPAs, PARs, and other prescribed amounts which impact on the determination of an individual’s RRSP deduction room
- Changes to the conditions necessary for a pension plan to be registered under the Act.
Insolvency Reform. The federal government is also proposing reforms to the Bankruptcy and Insolvency Act (BIA) and Companies’ Creditors Arrangement Act (CCAA), and the introduction of the Wage Earner Protection Program (WEPP).
The WEPP will be established under the Ministry of Labour and Housing and will guarantee payment of unpaid wages during the six months after the bankruptcy or receivership of the employer, up to a maximum of $3,000 per employee. Other highlights include giving higher priority for unpaid wages and unremitted pension plan contributions, explicit provisions that state trustees and receivers are not personally liable for liabilities outstanding prior to their appointment, and exemptions for RPPs and RRSPs from seizure in bankruptcy.
FSCO’s New Policies on Partial Wind Ups Post-Monsanto. Several new or revised policies, supplemented by other materials, have been released by FSCO arising from the Monsanto decision of the Supreme Court of Canada.
The releases express some interesting, and in some cases quite debatable, positions on partial plan wind-up (PWU) implementations with respect to a pension plan registered in Ontario or applicable to Ontario members. The following are just a few of the views expressed by FSCO:
- The plan administrator should actually or notionally segregate assets attributable to the PWU (including any applicable surplus), keep those assets separately invested under an appropriate investment statement, and not permit the segregated funds to be used to fund contribution holidays, expenses or benefits under the remainder of the plan.
- Any consequent deficit, as increased or arising from the PWU, in the PWU part of the plan or in the remaining part of the plan must be funded over the appropriate period under the PBA. The commencement of the funding period having regard to any reallocation of assets (not necessarily limited to surplus) to the PWU part of the plan and the need for revised actuarial reports to be filed, is likely to be the subject of some debate.
- If a plan member covered by the PWU does not elect a transfer option (e.g., transfer to another pension plan or LIRA, LIF or LRIF), the administrator must purchase an annuity for the individual apparently even if the annuity purchase may not necessarily be in the best interests of the affected plan member (e.g. loss of opportunity to share in future ad hoc increases under the plan).
- Expenses relating to dealing with the surplus are to be borne by the sponsor and if charged to the pension fund will be subject to the provisions of the legislation relating to payment of surplus to a plan member. Apparently this practice is to be applicable even to expenses to implement a surplus splitting deal after it has been negotiated and even if the plan members agree to the charging of such expenses (theirs and those of the plan administrator or sponsor) out of the surplus. It is expected that some administrators will challenge this position.
In any event, in FSCO’s view, PWU expenses are only chargeable to the fund if the plan documentation so provides.
Plan administrators have been seeking clarification of FSCO’s position on the foregoing issues and other issues relating to a series of PWUs under a pension plan. FSCO has indicated that, at least for the present, no further guidance will be released. In view of uncertainty on such issues, as well as plan-specific issues and data collection difficulties, plan administrators are continuing to struggle to meet deadlines proposed by FSCO to comply with Monsanto and related PWUs.
In the meantime, some groups affected by PWUs have taken the aggressive approach of starting a related court action. The reaction of most other Canadian jurisdictions to Monsanto issues, including Québec, which wants to protect its members but no longer has a PWU requirement, is still being developed.
FSCO Response to Transamerica: Inter-plan Transfers and Mergers. In Transamerica, the Ontario Court of Appeal held that surplus pension assets held in a trust under a pension plan could not be used to fund liabilities or contribution holidays stemming from another pension plan after the purported merger of the two plans. Leave to appeal the decision was dismissed by the Supreme Court of Canada and, in December 2004, FSCO released an update on the status of mergers involving Ontario pension plans.
The update outlines four situations where Transamerica will not prevent consideration of an application for the transfer of assets upon a sale or merger of pension plans.
One. Where the plans do not have a defined benefit component or do not involve a trust.
Two. Where, in some circumstances, the assets are transferred to a newly established plan.
Three. Where, in some circumstances, the receiving plan undertakes to keep the assets separate and apart from other assets and not to use such assets to fund benefits unrelated to transferred members.
Four. Where a court has determined that the transfer is legal and binding and all rights of appeal have been exhausted.
In addition, FSCO stated that “(o)ther applications that can be differentiated from the Transamerica decision will be considered on a case by case basis.” FSCO appears to be administering this exception very narrowly.
2005 Ontario Budget
The Ontario budget, introduced in May 2005, outlined three proposed changes of interest:
Infrastructure. The government intends to encourage pension plans to invest in infrastructure. The current investment rules applicable to Ontario pension plans, such as the 30% limit on ownership of voting shares of a corporation, create disincentives for Ontario plans to do so. The government, nevertheless, has not set out any specific proposals and has not indicated when further information can be expected.
Common Standards. The government plans to amend the Pension Benefits Act to implement an accord on common standards with Québec to simplify the administration of multi-jurisdictional plans. No announcement with regard to when this accord will be implemented has been made.
JSPP. The government will amend the PBA to try to solve problems faced by Jointly Sponsored Pension Plans regarding going-concern unfunded liabilities or solvency deficiencies.
These amendments are scheduled to take effect before the end of 2005.
Québec Consultatin Paper
The Québec government has released a consultation paper on changes to funding rules of private pension plans in Québec. Some of the measures proposed are:
- Establishment of a provision for adverse deviations that would affect solvency.
- Increase of the amortization period for solvency deficits to 10 years.
- Consolidation of solvency deficits at the first actuarial valuation after 2009.
- Allowing financial instruments to guarantee amortization payments for solvency deficits.
- Determining and funding the cost of an amendment on the basis of solvency.
- Allowing parties to agree in advance as to the allocation of surplus assets.
- Asking the Canadian Institute of Actuaries to define new standards for the funding of an on-going basis.
- Limiting a contribution holiday to the year immediately following an actuarial valuation.
- Allowing the combination of outstanding solvency deficiencies on the first actuarial valuation to be done after December 30, 2004.
- Temporarily allowing the reduction of amortization payments required for solvency deficits.
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.