Article by Jeffrey Sommers, ©2006 Blake, Cassels & Graydon LLP
This article was originally published in Blakes Bulletin on Pension and Employee Benefits- January 2006
The law relating to pensions and employee benefits continues to undergo significant and ongoing change, including clarification of the plan administrator’s duty to disclose information about proposed amendments, jurisdictional limits of provincial pension laws and courts, right of employers and unions to negotiate use of surplus, and a variety of legislative and regulatory initiatives.
DECIDED COURT CASES
Disclosure of Pension Plan Amendments.
Hembruff v. Ontario Municipal Employees Retirement Board is a significant case dealing with a pension plan administrator’s duty to communicate pending plan amendments to plan members. The lower court’s finding that potential amendments must be disclosed if they would be material to decisions made by members was very troubling to plan administrators. In November 2005, the Ontario Court of Appeal reversed the lower court’s decision and provided much needed clarification as to a plan administrator’s obligations relating to potential plan amendments.
In overturning the lower court’s decision, the Court of Appeal held there had been no negligent misrepresentation because the plan’s Board of Trustees (the Board) had acted prudently in not notifying members of a proposed amendment to the plan. While the Court acknowledged a plan administrator has an obligation to disclose "highly relevant" information, information about a potential plan amendment is not highly relevant since it is speculative and not reasonable for a plan member to rely if it were disclosed. The Court of Appeal also held there had been no breach of fiduciary duty by the Board. In finding there is no legal obligation to disclose plan amendments that are merely under consideration, the Court noted such an obligation would impose an "unmanageable burden" on an administrator by requiring it to determine how seriously a change must be under consideration before triggering the obligation, the extent of information to be disclosed, and when and how such disclosure would have to be made. The Court concluded the Board had no obligation to disclose the plan amendments until it had finished its recommendations to the Ontario government, which had ultimate authority to approve plan changes.
The Court also found the Board did not breach its fiduciary duty by recommending an effective date of January 1, 1999 for the amendments, even though the result was that members who ceased to have an entitlement under the plan before January 1, 1999 did not become entitled to any benefit enhancements. The Court held the Board had valid reasons for selecting this date and recognized any effective date would result in some members or former members being denied benefits.
Finally, the Court endorsed a position taken by the Ontario Superior Court of Justice in McMaster that any former members who transfer the commuted value of their benefits out of a pension plan forfeit any entitlement to additional future benefits under the plan.
Jurisdiction of Ontario Court and PBA Over Québec Employees.
Two cases recently addressed this issue. In Boucher v. Stelco Inc., a pension plan registered in Ontario included some members employed in Québec. In 1990, Stelco closed three of its Québec facilities and, at the request of affected employees, the Ontario Superintendent of Financial Services (the Superintendent) ordered a partial wind-up of the plan. In determining the affected members’ entitlements, Stelco did not provide "grow-in" benefits under the Pension Benefits Act (Ontario) (PBA) because the affected employees were employed in Québec. Stelco took the position that grow-in benefits under the PBA apply only to members employed in Ontario, even though the plan expressly stated it was subject to Ontario law. The Superintendent approved Stelco’s partial wind-up report.
The affected members began an action before the Québec Superior Court claiming entitlement to grow-in benefits based on a provision in the plan stating it "shall be construed and interpreted in accordance with the laws of the Province of Ontario." The Québec Superior Court found it had jurisdiction to hear the case but concluded the members employed in Québec were not entitled to grow-in benefits under the PBA.
A majority of the Québec Court of Appeal agreed with the lower court in finding it had jurisdiction to hear the matter. The majority also agreed that section 74 does not apply to members employed in Québec. The majority concluded the provision of the plan text stating the plan was to be construed and interpreted under the laws of Ontario did not grant any benefits to plan members.
In November 2005, the Supreme Court of Canada dismissed an appeal of the Québec Court of Appeal ruling. The Supreme Court found the Superintendent had the authority to approve the partial wind-up report pursuant to the PBA and the memorandum of reciprocal agreement between the various pension regulators in Canada. Interestingly, the Court also held that the Québec courts did not have jurisdiction to hear this case, based on the principle of res judicata (that is, the Superintendent’s decision was not contested in an Ontario court and is final).
The Supreme Court went on to note that, even if the Québec court had found it had jurisdiction, it would have been justified in declining such jurisdiction based on the doctrine of forum non conveniens (that is, there was no reasonable basis for it to be heard in a Québec court). The Supreme Court found the Québec court should have recognized an Ontario court would be in a better position to hear the matter.
In October, the Ontario Superior Court heard arguments in the case of Vivendi Universal Canada Inc. v. Ontario (Superintendent of Financial Services). Vivendi is seeking a declaration that the PBA, not the Supplemental Pension Plans Act (Québec), applies to its pension plan. The Ontario and Québec legislation have differing approaches relating to the transfer of assets from a pension plan that is surplus in connection to a sale of a business. The Québec pension regulator has opposed Vivendi’s application on a number of grounds. A decision has yet to be issued as of this publication.
Fiduciary Duty Re: Plan Amendments.
In October 2005, the Supreme Court of Canada denied the applicants’ leave to appeal in Association provinciale des retraites d’Hydro-Québec v. Hydro-Québec. The Québec Court of Appeal rendered its much awaited decision in this case in March 2005, dealing with 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 Québec Court of Appeal found that the employer did not have such a fiduciary obligation. For more details regarding the Québec Court of Appeal decision, please refer to Blakes Bulletin on Pension & Employee Benefits of April 2005.
In Neville v. Plumbing & Pipefitting Workers Local 170 Pension Plan (Trustee of), the Mechanical Industrial Relations Association (MIRA), which acts for employers in the plumbing and pipefitting industry, established a multi-employer pension plan for the employees in the industry. After the plan suffered over $70 million in investment losses, the trustees recognized the plan could no longer maintain the then-current contribution and benefit structure. They decided to reduce accrued benefits (as permitted under the applicable legislation with consent of the B.C. Superintendent of Pensions) and future benefit levels.
In amending the plan to reduce the benefit structure, the trustees unanimously chose an option that allocated more reduction to the benefits of non-retired members than retired members. The B.C. Superintendent of Pensions approved the related plan amendment. A non-retired member, who attempted unsuccessfully to represent all non-retired members, subsequently sued the trustees for breach of trust for not applying the reduction equally between all members.
The B.C. Supreme Court held the trustees were "entitled to exclude some beneficiaries from particular benefits and to prefer others" so long as trustees did not take into account "irrelevant or improper or irrational factors" in making a decision. In this case, the trustees considered the fact non-retired members had received percentage increases in the past more frequently than retired members, the pensions paid to retirees were not indexed to inflation, and non-retired members were still accruing pension benefits.
The Court found these were proper considerations and the trustees’ decision was reasonable. The Court further noted that half of the trustees were selected by the union and the other half by the employers, which meant that, to some extent, different interests of the beneficiaries were taken into account when decisions were made. This case has now been appealed to the B.C. Court of Appeal, but has not yet been heard.
Pension Plan Funding.
The case of Butler Brothers Supplies Ltd. v. British Columbia (Financial Institutions Commission) examines whether a plan sponsor can use a letter of credit to address a solvency deficiency in a pension plan. The B.C. Court of Appeal recently upheld the lower court’s decision that the plan sponsor could not deposit a letter of credit to fund the plan’s solvency deficiency and that a letter of credit is not an asset within the meaning of the Regulations under the B.C. Pension Benefits Standards Act.
In a prior proceeding of Ivaco Inc. (Re), the Ontario Superior Court of Justice granted Ivaco Inc. and affiliated companies facing bankruptcy, an order to suspend past service contributions to 16 affected pension plans. The Superintendent sought an order to direct the court-appointed monitor to distribute proceeds from the subsequent sale of Ivaco and some of its subsidiaries to four pension plans. In the alternative, the Superintendent requested an amount sufficient to satisfy the claims of the four plans be held in segregated trusts for the beneficiaries.
The court dismissed the Superintendent’s motion. While Ivaco’s assets would be subject to a deemed trust pursuant to the PBA in a non-bankruptcy situation, the deemed statutory trust does not have priority when a company faces bankruptcy. Rather, a "true trust" has priority over other claims. The court emphasized that trust law principles establish a true trust exists if there is: 1) certainty of intent; 2) certainty of subject matter; and 3) certainty of object.
The court said, "[f]or these three certainties to be met, the trust funds must be segregated from the debtor’s general funds." In this case, since the funds were not segregated for the beneficiaries, the deemed statutory trusts were not true trusts that would affect their priority over other claims. The court added that the administrator’s lien pursuant to the PBA was not a "lien" under the Bankruptcy and Insolvency Act (BIA). Accordingly, the administrator’s lien is ineffective in a bankruptcy. The court confirmed that BIA establishes the priority of claims.
Attempt to Create a Class Action.
In Public Service Alliance of Canada (PSAC) Pension Plan Members v. Public Service Alliance of Canada, former members of the PSAC Plan claim the defendant wrongfully appropriated surplus by taking a contribution holiday, allowing employees to pay a portion of their contribution from the surplus, providing early retirement incentive payments to certain employees, making pay equity payments and providing enhanced pension benefits to new retirees by improving the method of calculating the three best year’s average and introducing the Rule of 80 in place of the Rule of 85. In a recent court motion, the plaintiffs sought to certify the action as a class action under the Class Proceedings Act (Ontario), with a proposed representative class that included "[M]embers of the Public Service Alliance of Canada Pension Plan who retired from employment before December 31st, 2001, and who are entitled to a pension benefit or deferred pension benefit, together with spouses or dependent children entitled to an immediate or deferred pension, as a result of the death of a retired member, and the estate or any beneficiaries of a member deceased since December 31st, 2001."
The court dismissed the plaintiff’s motion, finding that the plaintiffs had not defined a class, they sought to represent various groups of individuals with conflicting interests, that a class proceeding is not the preferable procedure to deal with the governance claim as this could be adequately dealt with by way of a standard proceeding, and the plaintiffs’ proposed litigation plan was unworkable.
RECENT TRIBUNAL DECISIONS
Wind-up of Pension Plans.
In Mary Sutton -and- Superintendent of Financial Services and AIG Assurance Canada, AIG sponsored and administered the AIG Assurance Canada Pension Plan for Salaried Employees, which was a defined benefit pension plan that had a surplus as of May 1, 2001. On that date, AIG became a participating employer under the Commerce and Industry Insurance Company of Canada Pension Plan (Commerce Plan), a defined contribution pension plan sponsored by an affiliate of AIG and, for the purpose of future service, AIG Plan members became members of the Commerce Plan. On October 25, 2002, AIG applied to merge the AIG Plan with the Commerce Plan. Mary Sutton, a member of the AIG Plan, requested the Superintendent order a wind up of the plan. In response, the Superintendent issued a Notice of Proposal (NOP), proposing to refuse to order a wind-up of the AIG Plan.
Ms Sutton requested a hearing before the Financial Services Tribunal (FST) to review the Superintendent’s NOP. She argued that since AIG ceased making contributions to the AIG Plan, the Superintendent should order the wind-up pursuant to the PBA. AIG argued the PBA provides an exception where the employer establishes a successor plan and that the Superintendent did not have the authority to wind-up the AIG Plan in these circumstances.
While the FST found that the PBA did not bar the Superintendent from ordering the wind-up the AIG Plan, it noted the authority to do so was discretionary. More specifically, the FST found that subsection 69(1) of the PBA "does no more than confer jurisdiction to act upon the Superintendent when one of the listed factual situations occurs, and possibly to impose a duty to consider whether to exercise that jurisdiction." Examining the circumstances of this case, the FST held the Superintendent was justified in refusing to order the wind-up of the AIG Plan.
LEGISLATIVE AND REGULATORY ACTIVITY
FSCO Updates – FSCO Asset Transfer Policy.
In July 2004, the Ontario Court of Appeal issued its decision in Aegon Canada Inc. and Transamerica Life Canada v. ING Canada Inc. (Transamerica) relating to the transfer of assets between pension plans. The Divisional Court of Ontario also addressed this issue in December 2004 in Baxter et al. v. National Steel Car Limited et al. (Baxter).
In response to these cases, on September 30, 2005, the Financial Services Commission of Ontario (FSCO) released an asset transfer update and checklist, which are available on its Web site. As well as the requirements set out in FSCO’s previous policies on asset transfers, the update requires applicants seeking the Superintendent’s consent to a transfer of assets between pension plans to identify the impediments related to trust issues that may need to be considered as a result of the Transamerica and Baxter decisions.
Applicants are encouraged to complete the checklist that deals with trust-related issues and certify the answers are accurate to their best of their knowledge and belief. If an applicant chooses not to use the checklist, it will have to satisfy FSCO staff that its application does not raise any trust-related issues that prevent the Superintendent from consenting to the application in light of the Transamerica and Baxter decisions. Applicants who do not use the checklist should address these issues in the same order as they appear in the checklist. If an applicant determines there are trust-related issues relating to the proposed asset transfer, FSCO advises applicants to make submissions as to why the Superintendent should consent to the application. FSCO emphasizes the completion and certification of the checklist does not ensure the Superintendent will approve the application. Rather, the checklist addresses only the trust-related impediments that may affect asset transfers. While staff have attempted to identify all the trust-related issues, the checklist is not considered to be all-inclusive. The checklist appears to be a useful tool for narrowing the issues to be addressed and a welcome respite from the overly restrictive approach to asset transfers previously adopted by FSCO.
Definition of "Spouse" under the Pension Benefits Act (Ontario).
On June 13, 2005, the Spousal Relationships Statute Law Amendment Act, 2005 amended the definition of "spouse" in the PBA. The definition of spouse now includes same-sex spouses and opposite-sex spouses who are married to each other or who live together in a common-law relationship. FSCO issued policy S500-101 to communicate this legislative change. FSCO further advised any reference to "same-sex partner" in any pension policy should now be read as a reference to "spouse" as defined under the PBA.
Funding Defined Benefit Pension Plans: Risk-Based Supervision in Ontario.
To support a risk-based approach to monitoring the funding of defined benefit pension plans, FSCO developed a computerized database and required plan administrators to file the Actuarial Information Summary (AIS). FSCO implemented this initiative in July 2000. From the filed AIS, FSCO collects actuarial and financial data used to analyze the funded status of defined benefit pension plans. In September 2005, FSCO issued its first report, Funding Defined Benefit Pension Plans: Risk-Based Supervision in Ontario, presenting its findings on the analysis of this data.
Federal – OSFI Instruction Guide for Asset Transfers Between Defined Benefit Pension Plans.
In July 2005, the Office of the Superintendent of Financial Institutions (OSFI) published the Instruction Guide for "Asset Transfers Between Defined Benefit Pension Plans" (Guide). The Guide sets out the general principles and detailed criteria that pension plan administrators must satisfy before OSFI grants permission for the transfer of assets between pension plans.
Taxation – Registered Plans Directorate RPP Technical Manual.
In early November 2005, the Canada Revenue Agency (CRA) posted its "Registered Plans Directorate RPP Technical Manual" on its Web site. The Manual’s purpose is to provide Directorate staff with assistance in the interpretation of those provisions in the Income Tax Act (Canada) that relate to registered pension plans. This technical reference tool is now available to the public. The Manual does not have the force of law.
Year’s Maximum Pensionable Earnings.
On November 2, 2005, the Canada Revenue Agency (CRA) announced the Year’s Maximum Pensionable Earnings (YMPE) for 2006 is $42,100, an increase of $1,000 from the 2005 YMPE. The combined employee and employer CPP contribution rate for 2006 remains 4.95% with a maximum dollar limit of $1,910.70. The maximum dollar limit in 2005 was $1,861.20. The self-employed contribution rate for 2006 remains 9.9% with a maximum dollar limit of $3,821.40. The maximum dollar limit in 2005 was $3,722.40.
Québec – Bill 102 & Funding Regulation.
On June 17, 2005, Québec Bill 102, and the Act respecting the Funding of Certain Pension Plans, came into force. The Bill provides a temporary relaxation of certain funding rules for defined benefit and hybrid pension plans. On August 24, 2005, the Québec government enacted the Regulation under the Act respecting the Funding of Certain Pension Plans. The Regulation establishes procedures and rules that apply to employers when taking advantage of the relaxed funding requirements in the Act.
CAPSA Proposed Funding Principles for a Model Pension Law.
The Canadian Association of Pension Supervisory Authorities (CAPSA) published a consultation paper and Questions and Answers on the "Proposed Funding Principles for a Model Pension Law." The funding principles set out in the consultation paper aim to provide a "basis for harmonized model of funding rules for defined benefit pension plans." CAPSA explains that these funding rules "would contribute to the reduction of compliance costs and simplify the administration of multi-jurisdictional pension plans." The consultation paper includes discussion on:
- The objectives and consideration that CAPSA has taken into account in the development of the funding principles
- The 15 proposed funding principles for comment
- Three additional principles for further deliberation
- Questions to guide the deliberations.
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.