Canada: Managing Pension Risks In Corporate Transactions - Part 1

Last Updated: March 2 2009

Article by Mitch Frazer, Torys LLP, and Jana Steele, Goodmans LLP


1.Introduction to Pension Plans

Types of Pension Plans

Defined Benefit Plan

Defined Contribution Plan

Multi-Employer Pension Plan

Funding of Pension Plan

Surpluses and Deficits in Pension Plans

Pension Plan Valuation

Nature of the Transaction

Share-Purchase Transactions

Mergers and Amalgamations

Asset-Purchase Transactions

2. Managing Pension Risks in Corporate Transactions

Due Diligence

Step 1: Signing a Confidentiality Agreement

Step 2: "Valuing" the Pension Plan

Step 3: The Seller's Obligations

Step 4: The Buyer's Obligations

Step 5: Signing a Letter of Intent

Step 6: Retaining Pension Counsel at an Early Stage

Negotiation of Representations and Warranties

Other Provisions in an Agreement of Purchase and Sale

3. Evaluating Options and Obligations in Complex Corporate Transactions or Restructurings

Pension Issues Specific to Share-Purchase Transactions

Pension Issues Specific to Mergers

Pension Issues Specific to Asset-Purchase Transactions

(i) Buyer does not offer pension plan

(ii) Seller retains past-service liability and buyer offers plan for future services only

(iii) Wraparound arrangement

(iv) Carve-out arrangement

(v) Transfer of pension plan

4. Strategies for the Successful Conversion of Pension Plans

5. Issues Related to Multi-Employer Pension Plans in Corporate Transactions

MEPP Issues Specific to Share-Purchase Transactions

MEPP Issues Specific to Asset-Purchase Transactions

6. Conclusion

Mergers and acquisitions can bring a host of pension and benefits issues to the surface. To minimize the risks associated with acquiring or divesting pension liabilities, each party to a corporate transaction must be aware of its options as well as the consequences that flow from each. Specifically, both buyer and seller must consider how the transaction will affect the rights and interests of the beneficiaries of the pension plans. The transacting parties should also know the types of pension plans available to the affected employees, the manner in which those pension plans are funded and administered, and where the plans are registered. Additionally, the nature of the transaction itself must be considered: specifically, whether it involves a sale of assets, a sale of shares or a merger or amalgamation of companies and potentially of pension plans. Ideally, these issues should be considered before or in the early stages of any business transaction.

In this paper, we identify and analyze pension issues, obligations and risks that arise in corporate transactions. We examine registered pension plans from an Ontario perspective. Such plans must be registered with the Canada Revenue Agency (CRA) under the Income Tax Act (Canada) (ITA)1 and with the Financial Services Commission of Ontario (FSCO) under the Pension Benefits Act (Ontario) (PBA).2

Federal pension benefits standards legislation applies to federally regulated industries (such as airlines and telecommunications), and every province in Canada (except Prince Edward Island) has its own pension benefits standards legislation. These statutes set out minimum standards for registered pension plans. When a company has employees in more than one province, its pension plan is generally registered in the province where the greatest number of members reside. However, members residing in other provinces are subject to the minimum standards of the applicable legislation of their province of residence to the extent that such minimum standards provide a greater right or benefit. It is important to ascertain the jurisdiction of registration of any pension plan in a transaction and to determine whether employees in other provinces are covered under the plan.

Note that there are many other types of plans that should be considered in corporate transactions, including benefit plans, profit sharing plans, group RRSPs, supplementary executive retirement plans and retirement compensation arrangements. A discussion of these plans is, however, beyond the scope of this paper.

1. Introduction to Pension Plans

Generally speaking, there are three principal types of registered pension plans: defined contribution plans, defined benefit plans and multi-employer pension plans. The employer must contribute to all types of plans. Employees may also be required to make contributions, in which case the plans are known as "contributory." In "non-contributory" plans, the employees are not required to contribute.

Types of Pension Plans

Defined Benefit Plan

A defined benefit (DB) plan stipulates the pension benefit that will ultimately be received by the participant without detailing the contributions required to provide the benefit promised. Typically, a DB plan identifies a formula, based on factors such as earnings and years of service or plan membership, that determines what benefit a plan member is entitled to receive upon retirement. For example, the plan may provide a benefit of 2% of the employee's average salary over a specific period multiplied by the number of years of pensionable service.

Defined Contribution Plan

In contrast to a DB plan, a defined contribution (DC) plan specifies the contributions that the employer (and the employee if the plan is contributory) is required to make but does not specify the benefits ultimately payable to plan members. The contributions made on behalf of a member are contributed to his or her account, which is invested.3 Upon retirement, the member's pension depends on the balance in his or her account. For example, the employer may contribute 2% of the employee's salary for each year of employment and the pension benefit ultimately payable will be based on the aggregate contribution made in respect of that employee and the investment return on the contribution.

Multi-Employer Pension Plan

A multi-employer pension plan (MEPP) is defined in subsections 1(3) and 1(4) of the PBA as a "pension plan established and maintained for employees of two or more employers who contribute, or on whose behalf contributions are made, to a pension fund by reason of agreement, statute or municipal by-law to provide a pension benefit that is determined by service with one or more of the employers," but it does not include a pension plan in which all employers are affiliates within the meaning of the Business Corporations Act (Ontario).4 MEPPs are often established by unions in industries with significant mobility in their workforces. Contributions to MEPPs are generally the subject of labour negotiations and are entrenched in the applicable collective agreement. The advantage of an MEPP is that even if an employee works for a number of employers who contribute to the MEPP, he or she will always remain a member of the plan and earn credits as if employed continuously by the same employer.

Issues related to MEPPs arise in the context of corporate transactions. As with any other pension plan, it is important to review all relevant documents related to the MEPP, which may include the plan text, a participation agreement, a funding agreement and an applicable collective agreement and/or participation agreement. In addition, the PBA contains certain special rules applicable to MEPPs that must be considered. In the final section of this paper, we elaborate on pension issues specific to MEPPs.

Funding of Pension Plans

Registered pension plans must be funded in accordance with the CRA's requirements, as set out in the ITA, and the applicable pension legislation and regulations. The two most common mechanisms for funding pension plans are trust agreements and insurance contracts.5 When a trust is used, the plan sponsor generally prepares a plan document and enters into a trust agreement to make a trust company the trustee of the pension fund. The trustee holds the pension fund assets in trust under the terms set out in the relevant documents. When the pension plan is funded by a trust, classic trust principles generally apply.6 If the plan sponsor has opted for an insurance policy, the pension plan is established by an insurance contract between the plan sponsor and an insurance company, which will usually hold and invest the assets and administer the plan. Under both arrangements, a wide array of investment options are generally available, including guaranteed investment certificates, segregated funds and specialty pooled funds that may be invested in bonds, equities, venture capital, money market instruments, mortgages or real estate.7

Surpluses and Deficits in Pension Plans

In the context of a corporate transaction, the buyer must determine whether the seller's pension plan has excess funding (a surplus) or unfunded liabilities (a deficit). A plan is in a surplus position if the assets of the pension fund exceed the present value of the pension benefits promised under the plan. On the other hand, a pension plan has a funding deficiency when the assets are not sufficient to cover the present value of the accrued pension benefits.

Whether a pension plan has a surplus or an unfunded liability is an important consideration for all parties in a business transaction or reorganization. As discussed later, a plan's funded status may have an impact on the negotiation of the purchase price and the terms of the transaction. So it is important that there be an accurate assessment of the plan, and that both the buyer and the seller fully understand and approve the assumptions that were made in completing the assessment.8

Pension Plan Valuation

Two funding tests for pension plans are required under the PBA and are performed by an actuary: solvency and going-concern. The solvency position of a pension plan is determined on the assumption that the plan is wound up on the valuation date. The going-concern valuation is calculated on the assumption that the plan will continue indefinitely.

The actuarial surplus or deficiency of a plan is calculated by an actuary and detailed in an actuarial report, which is prepared using a series of assumptions concerning interest rates, inflation, salary projections, employee turnover, life expectancy, retirement age, industry return, and so on.9 The Regulations to the PBA10 generally require such reports to be prepared and filed every three years.11 However, if solvency concerns are disclosed in a report, another actuarial report must be filed the following year.12 The actuarial report will determine the "normal" contributions required by the employer to fund the benefits promised under the plan. If a pension plan is in surplus, the employer may be able to suspend payments to the plan for a period of time – known as a "contribution holiday." However, if an actuarial report reveals that a pension plan is underfunded, the employer must make "special payments" over a certain period to rectify the funding deficiency.

Only when a pension plan is wound up, in whole or in part, can it be known whether a pension plan is in fact in surplus or in deficit, as opposed to actuarially in surplus or in deficit. The entitlement to any surplus remaining when the plan is wound up may also be an issue.

Nature of the Transaction

Several types of corporate transactions can trigger pension issues: purchases of shares, mergers and amalgamations, and purchases of assets. The structure of the deal will directly affect the buyer's and seller's pension obligations. In the following section, we briefly describe each type of transaction to lay the groundwork for the subsequent analysis of the specific pension issues arising under each structure.

Share-Purchase Transactions

In a share-purchase transaction, the buyer acquires the shares of the target corporation and becomes a shareholder of the corporation, which retains its own assets and liabilities. As a result, the buyer acquires the entire target company "as is," including the pension plans. While ownership of the shares of the target corporation changes hands, the employer-employee relationship is largely unaffected, and the terms of the employment contract, including pension benefits, remain essentially the same.

Mergers and Amalgamations

Mergers and amalgamations involve the combination of two or more corporations into one legal entity with all the rights and obligations of the merging companies continuing in the amalgamated corporation. Thus, much as in a share-purchase transaction, the pension plans of the merging corporations will be the responsibility of the amalgamated corporation. However, pre-existing pension plans of the merging corporations are not automatically merged; the plans will generally continue separately unless active measures are taken to formally merge them. To merge the plans in the amalgamated corporation, the consent of the Superintendent of Financial Services (Superintendent) is required.13 The Superintendent may refuse consent for a proposed plan merger if the merger does not protect the pension benefits and any other benefits of the members and former members of the original pension plans.14

Asset-Purchase Transactions

In an asset-purchase transaction, the buyer purchases specified assets relating to the business of the seller. In some cases, a seller may be selling off that portion of its assets related to a specific division. In other cases, there may be tax or other reasons for the sale of substantially all of an entity's assets instead of the sale of its shares. From a pension perspective, an asset-purchase transaction tends to be more complicated to structure and document than a share transaction or a merger. Unlike the other two transactions, an asset transaction does not automatically result in the assignment of the seller's or target company's pension liabilities and corresponding assets to the buyer. Absent any specific collective agreement requiring the buyer to provide a plan (and subject to any agreement reached between the parties), the buyer has the discretion to determine what type of pension plan, if any, to provide to affected employees.

2. Managing Pension Risks in Corporate Transactions

Pension issues can be big-ticket items in a corporate transaction and, therefore, companies are increasingly concerned about pension liabilities and risks. Registered pension plans may present complicated legal, actuarial or other issues. As a result, it is essential for both the buyer and the seller to conduct thorough due diligence and negotiate the appropriate representations and warranties to be incorporated into the agreement of purchase and sale.

Due Diligence

Acquiring or disposing of pension plans and their associated liabilities in the context of corporate transactions can have a significant impact on a company's financial viability as well as on employee morale and productivity. Accordingly, it is important for both the buyer and the seller to conduct due diligence before entering into any business deal. Although the type and level of due diligence required will vary depending on the nature of the transaction and the party's role in the transaction, some type of review must be performed so that both parties fully comprehend their obligations.

The following outline of the due diligence process is relevant in a share-purchase transaction, a merger or an asset-purchase transaction in which the buyer is assuming pension liabilities. The various pension options available to the buyer in an asset-purchase transaction are discussed later in this paper.

Step 1: Signing a Confidentiality Agreement

The due diligence process opens a window for the prospective buyer to acquire information about the seller's business. If the transaction fails to materialize for any reason, the seller (or any successive buyer) is placed in the undesirable position of having another player in the market acquainted with its intimate business and financial details. Therefore, the first stage in the transaction process will often be to execute a mutual confidentiality agreement whereby the parties bind themselves not to disclose any private information that may be acquired during the due diligence process. Typically, a confidentiality agreement specifies classes of information that are to remain confidential and stipulates expiration dates after which each class loses its protected status.

Step 2: "Valuing" the Pension Plan

Because a pension plan's assets and liabilities may affect the value of the shares of the target corporation or the price a buyer is willing to pay for the company's assets, it is important that both parties know the funded status of any pension plans. If a pension plan has a surplus or a funding deficiency, one of the parties may wish to seek a purchase price adjustment. However, with an ongoing pension plan, the value of any surplus or funding deficiency is difficult to quantify precisely. This is because the actual value of the assets in the fund will vary depending on factors such as investment performance and distributions paid out of the fund and the actuarial assumptions used to determine a pension plan's funded status may change. Another consideration is that since surplus generally cannot be withdrawn from an ongoing plan, the value of any surplus can be realized only through contribution holidays. Thus, if any value is to be attributed to any surplus, it will generally be discounted.

Step 3: The Seller's Obligations

Due diligence in a corporate acquisition is often seen as principally a buyer's concern. However, the seller should also be fully informed of the nature and history of all of its pension plans. If the seller conducts its due diligence early in the transaction, it can identify problems promptly and work toward resolving them before the transaction has progressed too far. Another key reason for the seller to conduct due diligence is to ensure the accuracy of the representations and warranties it makes in the agreement of purchase and sale. The Aegon case, described below, illustrates this point well.

Step 4: The Buyer's Obligations

Although a prudent buyer will obtain representations and warranties from a seller to guard against unpleasant surprises even after due diligence has been completed, such representations and warranties generally expire relatively quickly (often on closing in the case of a share purchase or merger). The buyer must carefully examine all documents and other relevant information to understand the nature of the proposed investment.

The buyer should request the following documents from the seller in respect of each pension plan:

  • all pension plan texts and amendments (including all historical documents since the plan's inception);

  • all funding agreements (since the plan's inception);

  • the three most recent financial statements, accounting statements and actuarial reports;

  • the most recent investment information summary;

  • all annual information returns and professional opinions;

  • all material internal memoranda;

  • all collective agreements;

  • the statement of investment policies and procedures;

  • all contracts with any service providers;

  • all material correspondence with the CRA and the provincial pension regulator; and

  • all booklets, summaries, manuals and written communications of a general nature distributed to employees or former employees.

The importance of reviewing all historical plan and funding documents since the plan's inception cannot be overstated, because when the buyer assumes a pension plan, it assumes the plan's history. Legal counsel must examine all historical documents to assess key issues, such as payment of plan expenses, prior mergers and other potential misapplications of surplus. However, from a practical point of view, there are times when these historical documents are not accessible. When this is the case, the buyer should ensure that those key issues are covered in the representations and warranties and that adequate indemnity language (and survival periods) is included.

Moreover, in considering the funded status of a pension plan, the buyer must review the actuarial reports for the plan. In this regard, the expertise of the actuary is crucial. If the buyer does not have an actuary, legal counsel conducting pension due diligence should advise the client to retain an actuary to review the reports. It is important to consider the appropriateness of the methods and assumptions used in each report. The party conducting due diligence must also pay attention to the date of the report, because factors such as market fluctuations and plan experience may have changed the funded position of the plan since the report was filed.

Additionally, recent case law suggests that a buyer must go further in its review. A prudent buyer should attempt to obtain the following information in any due diligence process regarding a pension plan:

  • the jurisdiction of plan registration;

  • the jurisdiction of employment for plan participants;

  • the class(es) of employees eligible for membership;

  • whether participation in the plan is mandatory or voluntary;

  • whether the plan is an MEPP, a DB, a DC, a hybrid or formerly DB converted into DC;

  • for MEPPs, whether there is any potential withdrawal or other liability;

  • for MEPPs, whether the plan terms permit the reduction of benefits;

  • for DB plans, the type of benefit formula and level of benefit;

  • for DC plans, the employee and employer contribution formulas;

  • for DB and converted plans, the funded status on both a going-concern basis and a solvency basis, and the actuarial assumptions used to determine this status;

  • for DB and converted plans, the plan language governing contribution holidays and employer surplus entitlement;

  • for DC and converted plans, the annual contribution costs; and

  • the nature of the funding arrangement (for example, whether the plan has ever been subject to a trust).

Step 5: Signing a Letter of Intent

If due diligence has not revealed any issues worrisome enough to undermine the transaction, the buyer will generally sign a letter of intent. This rudimentary document provides a basic understanding of the deal between the potential buyer and seller and sets out a negotiation structure for reaching the eventual deal. Once the ground rules have been established, the parties can begin more serious negotiation of the particulars that will, ideally, lead to an agreement of purchase and sale.

Step 6: Retaining Pension Counsel at an Early Stage

It is best to involve pension counsel in a corporate transaction as early as possible. For example, a buyer may want the letter of intent to provide that employees will be offered employment on terms substantially similar to those provided to the buyer's employees. However, if the seller has a registered pension plan, it will want the letter of intent to provide that the buyer will provide a registered pension plan to the transferred employees to prevent triggering a partial windup of the seller's plan. These types of structural issues can be addressed early in the transaction if pension counsel is retained.

Negotiation of Representations and Warranties

Once the prospective buyer and seller have completed the necessary due diligence, the representations and warranties with respect to the pension plans must be determined. This process often involves considerable negotiation, because the buyer's counsel will want to include a long and detailed series of representations and warranties whereas the seller's counsel will seek to limit and qualify them by reference to materiality and/or knowledge of the seller.

The buyer will generally ask the seller to make broad representations and warranties with respect to the following:

  • the provision to the buyer of copies of all documents relating to all pension plans (see Step 4 above);

  • the existence and registration of any registered pension plans;

  • the establishment, maintenance, funding, investment and administration of any pension plans in accordance with the plan terms, any employee communications, any collective agreements and all applicable laws;

  • the performance of material obligations of the seller with respect to the pension plans;

  • the payment of all required contributions under the pension plans;

  • the absence of any taxes or penalties;

  • the absence of any breach of fiduciary duties;

  • the absence of any outstanding or threatened actions or claims;

  • the adequacy of funding of the pension plans;

  • the absence of any promises of benefit improvements; and

  • the absence of any MEPPs (or prior participation in any MEPPs).15

Depending on the nature of the transaction, the buyer may request that the seller make more specific representations and warranties with respect to the following:

  • whether contribution holidays are permitted and/or have been taken in respect of the pension plan;

  • whether any surplus has been withdrawn or used to pay plan expenses;

  • whether the plan has been previously converted;

  • whether there have been any prior mergers or partial windups of the pension plan; and

  • whether any event has occurred that would entitle any person to cause the windup (in whole or in part) of the pension plan.

The 2003 decision of Aegon Canada Inc. v. ING Canada Inc.16 confirmed that a seller cannot make broad representations and warranties regarding its pension plans without ensuring the accuracy of such representations. In this case, ING Canada Inc. had warranted that all required contributions were made to a pension plan belonging to a life insurance company that it had previously purchased (NN Life Insurance Company of Canada) and was now selling to Aegon Canada Inc. However, NN Life's plan was the product of a merger of two other plans. The assets of one of those plans were subject to a trust, and upon the merger of the two plans, the Pension Commission of Ontario (the predecessor to FSCO) ordered that this plan's assets be maintained in a separate account. Because these funds were, ultimately, improperly administered by NN Life, ING was found to have breached its warranty to Aegon.

A seller must be particularly prudent in making representations regarding plan mergers and asset transfers between plans. Because the courts will not necessarily accept that a merger of pension plans is valid, a seller may have difficulty making the representation that its current pension plan is, in fact, the product of a valid merger of predecessor pension plans.17

Furthermore, a seller should be prudent in making representations regarding any uses of surplus. In the decision of Kerry (Canada) Inc. v. DCA Employees Pension Committee,18 the Ontario Court of Appeal held that the employer was permitted to pay most of the plan expenses from the pension fund. The Court also found that the employer could use a surplus in the DB component of a pension plan to cross-subsidize its DC contribution obligations. Although Kerry appears to have clarified the rights of employers in these areas to a certain extent, the parties to a purchase agreement should be cautious when making representations regarding the permissibility of such practices. The Kerry decision should not be interpreted to generally validate either of these practices because the decision was based largely on the wording of the plan documentation in that case.

Often the determination of which representations and warranties are appropriate for the seller to make will come down to the allocation of risk between the parties. When the seller cannot provide the requested documents to the buyer, it is reasonable for the buyer to request representations and warranties on matters it cannot determine. For example, if all prior funding agreements and plan texts are not disclosed by the seller, it is unlikely that the buyer can satisfy itself that any prior uses of surplus were appropriate and the buyer may request representations and warranties.

The parties will also need to make a decision as to the survival of the representations and warranties. Clearly, the seller will prefer a shorter survival period, whereas a buyer will generally want a longer survival period.

Other Provisions in an Agreement of Purchase and Sale

In addition to the representations and warranties, the parties must pay attention to the "definitions" section of the agreement of purchase and sale. For example, the definition of "Plans" (or "Benefit Plans," "Seller Plans" or "Employee Benefit Plans") must be examined to confirm that it covers all types of plans (pension, benefit, compensation, etc.) that the parties wish to include. Generally, the broad definitions of "Plans" will exclude certain types of plans, such as statutory plans (like CPP/QPP) and multi-employer plans, and there will be separate definitions for these other classes of plans.

In an asset-purchase agreement, the sections dealing with assumed liabilities and excluded liabilities should also be carefully examined to ensure that they reflect the business deal. For example, when the buyer is not assuming any pension plans or liability associated with any plans, this must be clearly stated in the asset-purchase agreement.

The buyer may also request covenants from the seller with respect to the pension plans. One that is often included is a covenant not to adopt, enter into, terminate or amend any plans (other than as required by law) between the date of the agreement and the closing date.

Finally, the parties should also consider the indemnity provisions of an agreement.

This paper was prepared with the assistance of Torys LLP lawyers: Stacey Parker-Yull, an associate in the Pension and Employment Group; Amanda Kieswetter, an associate in the Corporate Group; and Adrienne DiPaolo, student-at-law.


1.R.S.C. 1985, c. 1 (5th Supp.).

2.R.S.O. 1990, c. P.8.

3.Parties often focus only on DB plans because of the funding concerns related to these plans. DC plans, however, have their own potential risks. Specifically, there are potential legal risks if these plans have not been properly and prudently administered. For example, there may be exposure if not enough investment options were provided to plan members, if insufficient information was provided to plan members or if the administrator failed to monitor the investment performance of the various fund managers.

4.R.S.O. 1990, c. B.16 [OBCA]. Subsection 1(1) of the OBCA provides that "affiliate" means an affiliated body corporate within the meaning of subsection 1(4). Subsection 1(4) of the OBCA provides that "for the purposes of this Act, one body corporate shall be deemed to be affiliated with another body corporate if, but only if, one of them is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is controlled by the same person."

5.Income Tax Regulation, C.R.C., c. 945, s. 8502(g) provides that pension fund assets must be held pursuant to an arrangement acceptable to the Minister of National Revenue. Information Circular 72-13R8, section 6(e) provides that

"The pension plan must be funded through:

(i) a contract for insurance with a company authorized to carry on a life insurance business in Canada;

(ii) a trust in Canada governed by a written trust agreement under which the trustees are:

(A) a trust company, or

(B) individuals at least three of whom reside in Canada and one of whom must be independent to the extent that the individual is neither a significant shareholder, partner, proprietor, nor an employee of a participating employer ...

(iii) a pension corporation;

(iv) an arrangement administered by the Government of Canada or by a government of a province of Canada, or by an agent thereof; or

(v) combinations of the above funding media."

6.Schmidt v. Air Products Canada Ltd. (1994), 115 D.L.R. (4th) 631, [1994] 2 S.C.R. 611 [Schmidt]. Note that in the case of Buschau v. Rogers Communications Inc., [2001] S.C.C.A. No. 107 (QL), the Supreme Court of Canada dismissed an appeal from the British Columbia Court of Appeal's decision of Buschau v. Rogers Communications Inc. (2001), 195 D.L.R. (4th) 257 [Buschau] holding that the common law rule of Saunders v. Vautier, which generally applies to allow beneficiaries of a trust to terminate the trust if they all agree and are all sui juris, does not generally apply to pension trusts. This may signal a departure by the courts from the strict application of trust law principles to pension trusts in every situation.

7.William M. Mercer Limited, The Mercer Pension Manual (Toronto: Carswell, 2005) at 5-5.

8.Note that a DC plan does not need to have regular actuarial assessments because an employer's financial obligation is fulfilled once the amount specified in the plan text has been paid. Neil Cohen, ed., A Guide to Pensions in Canada (Toronto: CCH Canadian Limited, 2005) at 131.

9.Ibid. at 131-132.

10.General Regulations to the Pension Benefits Act, R.R.O. 1990, Reg. 909 [The Regulations].

11.Ibid., s. 14(1), as amended by O. Reg. 712/92, s. 10; O. Reg. 73/95, s. 4(1).

12.The Regulations, supra note 10, ss. 14(2)-(3).

13.PBA, supra note 2, s. 81. See also FSCO Policy A700-251

14.Ibid., s. 81(5).

15.If there are MEPPs, specific representations and warranties related to such plans will be required (discussed later in the text).

16.(2003), 179 O.A.C. 196, [2003] O.J. No. 2755 (C.A.) (QL), leave to appeal refused, [2004] S.C.C.A. No. 50 (QL) [Aegon].

17.Ibid. See also Baxter v. Ontario (Superintendent of Financial Services), [2004] O.J. No. 4909 (QL); Lennon v. Superintendent of Financial Services (2006), 51 C.C.P.B. 140 (F.S.T.) and Sutherland v. Hudson's Bay Co., [2007] O.J. No. 2979 (S.C.J.) (QL) [Sutherland]. In the recent Sutherland decision, the Court commented, in obiter, that the Aegon decision's findings regarding "merger" were unique to the facts of that case and should not be of general application.

18.(2007), 86 O.R. (3d) 1 (C.A.) [Kerry]. The employees appealed the Court of Appeal's decision. The Supreme Court of Canada heard the appeal on November 18, 2008, however, the judgment has not yet been released.

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.

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If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.