Canada: Ontario Pension Reform Bill

Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Pension & Employee Benefits, December 2009

OVERVIEW

On December 9, 2009, the Government of Ontario released Bill 236 (http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=2261) (the Pension Reform Bill) amending the Ontario Pension Benefits Act (the PBA) by enacting some of the changes proposed in the Expert Commission on Pensions, A Fine Balance: Safe Pensions, Affordable Plans, Fair Rules (http://www.pensionreview.on.ca/english/report/) (the Expert Commission Report), including dealing with the key issues of partial wind-ups, grow-in, asset transfers, plan splits and mergers, plan administration, information for plan members and Superintendent powers. Changes to the funding rules and the long-term future of the Pension Benefits Guarantee Fund are expected to be contained in a second bill to be released in spring 2010.

In the December 9th press release announcing the delivery of the Pension Reform Bill, the Ministry of Finance stated:

In this bulletin, we will discuss the key changes which we believe will be of interest to our readers.

Many of the amendments in the Pension Reform Bill are to be effective on a day to be named by proclamation of the Lieutenant Governor.

1. Partial Plan Wind-Ups

After December 31, 2011, according to the Technical Backgrounder, partial plan wind-ups are to be eliminated with the result that (i) no partial wind-up valuations will be required; and (ii) surplus will no longer be required to be distributed on a partial wind-up, i.e., the Monsanto effect will be eliminated.

However, the two other consequences of partial wind-up – (i) grow-in and (ii) immediate vesting – are going to apply broadly with potentially significant cost implications to some plan sponsors. Grow-in will apply to all employees with age and service totalling 55 terminated for any reason, except for cause or as prescribed by regulation, and immediate vesting will apply to all benefits (although the amount for small pension payouts will be increased).

Multi-employer pension plans (MEPPs) and Jointly sponsored pension plans (JSPPs) will be able to elect not to provide grow-in.

Additional powers (to order valuations and/or reports) are granted to the Superintendent to avoid certain inadvertent results occurring due to the lack of a partial plan wind-up.

As a transitional matter, partial wind-ups can still be ordered prior to what will apparently be the effective date of the grow-in changes. The grounds for such partial wind-ups are essentially unchanged from the current rules. In addition, the current rules relating to partial wind-ups continue, including the provision which caused the Monsanto effect, as part of the transitional provisions. However, while partial wind-ups continue to exist, annuities will not be required to be purchased for any partial wind-up after April 1987. (Not requiring annuities is consistent with the recent FST decision in Imperial Oil Limited.) Additional conditions may be prescribed by regulation where annuities are not purchased.

2. Full Plan Wind-Ups

Three changes are made in the Pension Reform Bill to when the Superintendent can order a full wind-up: (i) the test for when employee terminations can cause a full plan wind-up will be whenever "all or substantially all" of the employees are terminated, (ii) similarly a sale of "all or substantially all" of a business will permit a full plan wind-up to be ordered where the purchaser or successor does not provide a pension plan; and (iii) a full plan wind-up cannot be ordered simply because a specific location is closed. These changes are all consistent with the elimination of partial plan wind-ups.

3. Asset Transfers Between Pension Plans

Overview and Timing

The Pension Reform Bill contains extensive changes to the provisions of the PBA relating to plan mergers, plan splits or divisions and the transfer of assets between pension plans on the sale of a business. In most cases, these changes will come into effect on a date to be proclaimed by the government, which means that they could come into effect on a staggered basis following Royal Assent to the new legislation. At this stage, it is not clear whether the new legislation will apply on a retroactive basis to pending asset transfers and plan mergers. (This is because a considerable amount of detail has been left in the various new provisions to the regulations, which have yet to be released by the government.) In some cases, as discussed below, there could be certain advantages to plan sponsors in being able to rely on the new asset transfer and plan merger rules.

For both business sale asset transfers and plan mergers, the prior consent of the Superintendent will still be required.

The proposed legislation will accommodate the provision of different "pension and other benefits" in the successor pension plan (in the case of a business sale asset transfer) or in the merged or importing plan (in the case of a plan merger) provided the commuted value of the benefits of the transferred plan members is protected.

Interestingly, however, if the assets to be transferred relate to the provision of defined benefits in the original plan, the transferred assets must be used to provide defined benefits in the successor plan. Finally, there will also be prescribed requirements relating to the transfer of surplus.

While the Pension Reform Bill generally expands the notice requirement for pension plan amendments, requiring prior notice of plan amendments to be given to members, retired members and others of all plan amendments, amendments relating to the transfer of assets authorized by new sections 79.1,80, 80.1, 80.2 or the amended section 81 are specifically exempted from this requirement.

General Asset Transfer Provision

• The effective date of the asset transfer is to be determined in accordance with the regulations. Presumably this will mean the date as of which liabilities and related assets are transferred from one plan to another.
• The transfer of assets will be subject to prescribed funding requirements to be set out in the regulations.
• If either the exporting pension plan or the importing pension plan has a solvency deficiency or going concern unfunded liability at the effective date of the transfer, the transfer of assets in this circumstance will be subject to additional requirements to be prescribed under the regulations.

New section 79.2 also provides two important deeming and discharge provisions. In particular:

• The new legislation will provide that where assets have been transferred in accordance with the new legislation, the transferred assets will become part of the assets of the pension fund of the successor pension plan and will "cease to be identified as assets of the original pension plan" and transferred members, former members, retired members and other persons entitled to payment under the original plan will have no further claims against the original plan. This appears to be consistent with the recommendation in the Expert Commission Report that the legislation should address the problems that result from some of the case law (e.g., Aegon Canada Inc. v. ING Canada Inc. and Sulpetro Ltd. Retirement Pension Plan Fund (Trustee of) v. Sulpetro Ltd. (Receiver-Manager)) on whether the use of assets in the importing or successor plan is restricted because of restrictions imposed on trust assets in the exporting plan. The proposed legislation appears to provide that the historic terms of the exporting plan (and any related trust) are not carried forward into the successor or importing plan.
• If the transfer of assets is made on consent of the transferred members, retired members or other persons, the administrator of the original or exporting plan is discharged. Seemingly a distinction is drawn in the proposed legislation between a discharge of the administrator (where transferred member consent will be required) and clarification that the transferred assets are no longer subject to the terms of the original or exporting plan (where transferred member consent is not required).

Transfers Upon Sale of a Business and Plan Mergers

The new transfer upon sale of a business and plan merger provision contains four important changes:

• The administrators of the two pension plans must have agreed upon a "valuation" of the assets to be transferred. This may be a more significant practical consideration where the transfer is to be effected in kind and some of the assets are not traded publicly or easily valued.
• If the original pension plan has a surplus as of the effective date of the asset transfer, the value of the transferred assets must include a portion of the surplus which is to be determined in accordance with rules to be provided in the regulations.
• The Superintendent will have discretion to waive the funding requirements that could otherwise be applicable to the transfer under new section 79.2, including where either of the original pension plan or the successor pension plan has a going concern unfunded liability or solvency deficiency at the effective date of the transfer.
• Persons or other entities (other than the employer or successor employer) to be identified in the regulations, will be permitted to apply for consent to transfer assets from one plan to another. It will be interesting to see who is in this broader category.

Special Transitional Rule for Transfers Upon Sale of a Business

There is a change that may be of assistance to the broader public sector pension plans previously affected by privatization. It permits, until July 1, 2013, pension plans affected by past restructurings to enter into agreements that allow individual plan members to elect, subject to certain conditions, to consolidate their pension entitlements in a single pension plan, i.e., the successor employer's plan, with a likely increase in the value of their pension entitlement due to the effect of final earnings on the pension entitlement. Given that this will result in cost increases, it is not clear how many such agreements will occur but a large number of submissions were made to the Expert Commission relating to this issue and apparently the government has attempted to respond to this concern.

4. Increase transparency and access to information for plan members and pensioners

Notice of Amendment

With certain limited exceptions, plan administrators will be required to provide advance notice of all amendments before the amendments can be registered. It appears that the notice does not have to be given before the amendment can become effective. Provisions of the PBA permitting and requiring amendments to be administered in accordance with the amendment as filed pending registration or notice of refusal of registration, are not affected. Also, there are no changes to the provisions which permit retroactive amendments.

Under the current provisions of section 26 of the PBA, advance notice is only required to be given in the case of "adverse" amendments – amendments that reduce future service benefits or otherwise adversely affect rights or entitlements. The adverse amendment notice is only required to be given to persons "affected" by the amendment. It is not always clear who is "affected". The new advance notice requirements seem to require notice to be given to all plan members, former members, retired members and applicable trade unions for all manner of amendments, except amendments required to implement asset transfers and for other exceptions that will be prescribed by the regulations.

Under current rules, notice of an adverse amendment must contain a statement inviting comments to be provided to the administrator and to the Superintendent. The requirement to invite comments has been criticized in the past. It is not clear if this invitation will continue to be a requirement of the broader advance notice requirement, as the content and timing of the advance notice is to be prescribed by the regulations.

After an amendment is registered, current rules require notice of the amendment to be given to members, former members and other persons entitled to payment from the pension fund. Having regard to the new, broader advance notice obligation, this will no longer be necessary or required, except possibly as part of an annual or other statement of pension benefits.

Disclosure of Information

Section 27 of the PBA currently requires an annual statement of pension benefits to be given to members. The Pension Reform Bill will expand section 27, to require the administrator to provide other statements containing prescribed information to members, former members and retired members when required by the regulations. Provisions of the PBA relating to the information that must be disclosed upon request will be expanded to grant disclosure and inspection rights to retired members and their spouses. In addition, rules will be introduced to ensure members, former members and retired members obtain ongoing information about the funded status of the plan.

The Pension Reform Bill also amends the PBA to permit electronic means to be used to send statements, notices and other information to plan members and others, but only where the administrator has the person's permission to do so. Exceptions to the electronic communication may be provided under the regulations.

The Pension Reform Bill also contains a provision whereby the Superintendent will not disclose records if it is of the opinion that the disclosure could reasonably be considered to prejudice the commercial interests of the employer or its competitive position.

Advisory Committees

Under the existing rules, members are entitled to monitor plan administration by establishing an advisory committee; however, there are no rules requiring the administrator to facilitate the establishment of such a committee or its work. Where members wish to establish an advisory committee, the Pension Reform Bill requires an administrator to assist them by making available the names and addresses of members and retired members of the plan, and providing such other assistance as will be prescribed by the regulations. Once an advisory committee is established, the administrator will have ongoing obligations that are to be prescribed to assist the committee. In keeping with the other changes proposed in the Pension Reform Bill, retired members will have the right to appoint at least two representatives to the advisory committee.

5. Enhance Regulatory Oversight

Authority to Issue Interim Orders

The Pension Reform Bill includes amendments to the PBA which will allow the Superintendent to issue interim orders. Specifically, new subsection 87(6) will allow the Superintendent, in prescribed circumstances, to order a plan administrator, employer or any other person to prepare and file a new actuarial report or another prescribed type of report in respect of a pension plan if, in the opinion of the Superintendent, there are reasonable and probable grounds to believe (i) there is a substantial risk to the security of benefits payable under the plan; or (ii) there has been a significant change in the circumstances of the plan. The corresponding regulations which will prescribe the applicable circumstances and the types of reports for purposes of new subsection 87(6) have not yet been released.

It is notable that an order under new subsection 87(6) can require the administrator, employer or any other person to pay all or part of the cost of preparing the report. The current PBA provisions which allow the Superintendent to order the preparation of new reports do not include the power to determine who is to bear the cost of preparing such reports.

Orders issued under new subsection 87(6) will take effect immediately (i.e., they will not be subject to the Notice of Proposal process) but will be subject to a right of appeal to the Financial Services Tribunal (the FST). An appeal will not automatically stay the order but the FST may grant a stay until it disposes of the appeal.

Authority to Approve Arrangements and Proposals of Insolvent Employers

The Pension Reform Bill introduces new provisions to the PBA which grant the Superintendent the authority to approve certain agreements governing payments to a pension plan by an employer which is under protection from its creditors pursuant to the Companies' Creditors Arrangement Act (Canada) (the CCAA) or the Bankruptcy and Insolvency Act (Canada) (the BIA).

Both the CCAA and the BIA allow an insolvent employer to enter into an agreement with its creditors and other relevant parties under which certain payments which would otherwise be required to be contributed to the employer's pension plan pursuant to a compromise or arrangement under the CCAA or a proposal under the BIA, as applicable, can instead be made on terms set out in the agreement. This gives the parties some flexibility in determining the timing and amounts to be contributed to the pension plan. However, both the CCAA and the BIA require such agreements to be approved by the relevant pension regulator in order to be effective. Currently, it is not clear that the Superintendent has the authority under the PBA to grant such approvals.

6. Improve Plan Administration and Reduce Compliance Costs

Limited Compliance Exemptions

The Pension Reform Bill introduces several changes which are intended to simplify the filing requirements for plan administrators in specified circumstances or in respect of prescribed classes of pension plans, which will be set out in the regulations. The Pension Reform Bill will permit the enactment of regulations which:

• Eliminate the requirement to file some or all of the documents set out at subsection 9(2) of the PBA in an application for the registration of a pension plan.
• Eliminate the requirement to include some or all of the information set out at subsection 10(1) of the PBA in the pension plan documents.
• Eliminate the requirement to include some or all of the documents set out at subsection 12(2) of the PBA in an application for the registration of a pension plan amendment.

Previously there were no exceptions to the filing requirements set out at subsections 9(2), 10(1) and 12(2) of the PBA.

Extension of Time Limit to Apply for Overpayment Refunds

Under the Pension Reform Bill, subsection 78(4) of the PBA will be amended though the enactment of new subsection 78(5) to extend the available time period within which to apply to the Superintendent for consent to a payment from the pension fund to an employer for (i) an overpayment by the employer to the pension fund or (ii) amounts paid directly by the employer which should have been paid out of the pension fund. Under the Pension Reform Bill, the time limit will be the later of 24 months after the date of the overpayment or payment or six months after the date the plan administrator, acting reasonably, became aware of the overpayment or payment. Previously, section 78(4) of the PBA provided that the Superintendent could not consent to such payments unless the application for consent was made in the same fiscal year in which the overpayment or payment occurred, although extensions of time could be granted by the Superintendent under section 105 of the PBA (see FSCO Policy R350-500).

Excess Amounts and Small Payments

Previously where excess amounts arose from the application of the 50% rule in subsection 39(3) of the PBA or small pensions were subject to commutation under the terms of the plan, the resulting payments could be made only in a lump sum, subject to applicable tax witholdings. This has been changed in the Pension Reform Bill such that the plan administrator must now provide former members and retired members with the option to elect to transfer the value of the excess amount or small pension, as the case may be, to a registered retirement savings arrangement. Under the Pension Reform Bill, a "registered retirement savings arrangement" is defined as "a registered retirement savings plan established in accordance with the Income Tax Act (Canada) or a registered retirement income fund established in accordance with that Act." The option for transfer to a registered retirement savings arrangement must also be given to spouses who are entitled to a preretirement death benefit from the pension plan.

Reciprocal Transfer Agreements

The Pension Reform Bill provides for the enactment of regulations prescribing the requirements for reciprocal transfer agreements, thus (potentially) creating a regulatory framework for such agreements. Currently, the sole obligation in respect of reciprocal transfer agreements is that a copy of the agreement be filed with the Superintendent.

7. Surplus Sharing Agreements

The PBA currently requires that not only must an employer who wishes to withdraw surplus obtain the consent of a significant majority of both active and inactive members at the plan wind-up date, but must also demonstrate that the plan provides for the payment of surplus to the employer on a wind-up. The requirement that the plan provide for the payment of surplus to the employer has been interpreted by the courts as a requirement that the employer have legal entitlement to the surplus based on the terms of both current and historical plan documents.

Under the Pension Reform Bill, subsection 79(3) of the PBA will be amended to permit an employer to receive surplus on a plan wind-up if either of the following conditions are met:

1. the plan provides for payment of surplus to the employer on wind-up, or
2. the payment is pursuant to a written agreement of the employer, the members, former members, retired members (subject to proclamation of the provisions of the Pension Reform Bill creating a new "retired member" category of plan members) and other persons entitled to payments on the wind-up date that complies with prescribed requirements and provides for the payment of surplus to the employer.

The amendments to the surplus withdrawal rules in subsection 79(3) of the PBA appear to be effective on the date the Pension Reform Bill receives Royal Assent. In practice, a withdrawal based on an agreement with plan members will likely not be feasible until the regulations which prescribe the requirements for such an agreement have been adopted. Withdrawals on the basis that the plan provides for payment of surplus to the employer would appear to be permitted immediately upon Royal Assent, subject to compliance with requirements prescribed under other sections of the PBA in respect of the payment of surplus. Currently, those other requirements include section 8 of the regulations under the PBA, which requires the employer to obtain member consent to the payment of surplus to the employer on a plan windup but presumably this apparent inconsistency will be resolved by the time the Pension Reform Bill comes into force. It appears that the surplus withdrawal provisions in the Pension Reform Bill applicable to full plan wind-ups will apply regardless of when the wind-up occurred.

The provisions of the Pension Reform Bill relating to surplus withdrawal on full plan wind-up are generally consistent with the surplus withdrawal rules under the Federal Pension Benefits Standards Act, 1985, the British Columbia Pension Benefits Standards Act and the Alberta Employment Pension Plan Act, but some of the details (for instance, the consent levels from each group of members, former members, retired members and other beneficiaries) remain to be prescribed in the regulations.

In conjunction with the phasing out of partial wind-ups, the Pension Reform Bill contains special rules relating to the distribution of surplus on a partial wind-up. Under the Pension Reform Bill, an employer will be permitted to withdraw surplus if the plan provides for payment of surplus to the employer on wind-up. As noted above, the requirement that the plan provide for the payment of surplus to the employer has historically been interpreted by the courts as meaning the employer is legally entitled to the surplus having regard to the current and historical plan documents. The surplus withdrawal provision in the Pension Reform Bill relating to partial wind-ups does not include the option of negotiating an agreement with the affected plan members. It is not clear whether the current requirement in the regulations for member consent to surplus withdrawals irrespective of employer entitlement to the surplus will continue to apply to surplus withdrawals involving partial wind-ups. The Pension Reform Bill indicates that this special provision relating to the payment of surplus in connection with a partial windup will be repealed on a date to be proclaimed.

Subsection 79(4) of the PBA, which deems a plan to provide for payment of surplus accrued after 1986 to members if it does otherwise provide for the payment of surplus, is also being amended. Amended subsection 79(4) will apply to surplus accrued after 1986. Where the plan does not provide for the payment of surplus to the employer and, if there is no agreement between the employer and the various member groups authorizing the payment of surplus to the employer, surplus will be required to be distributed among the various categories of members. Those categories will include former members and retired members when the provisions of the Pension Reform Bill creating a "retired member" class of members come into force.

8. Phased Retirement

As announced in the 2009 Ontario Budget, (http://www.fin.gov.on.ca/en/budget/ontariobudgets/2009/papers_all.html) employers will now be permitted to offer phased retirement to eligible members pursuant to a new PBA section 35.1. During the period of phased retirement, the eligible member is entitled to accrue additional pension benefits while receiving periodic payments from the pension plan not exceeding 60% of the pension payments to which he or she would be entitled as a retired member. For the purposes of pension standards legislation, the periodic payments do not constitute a pension. To be eligible for phased retirement, the member must be at least 60 years of age or at least 55 years of age and entitled to an unreduced pension from the plan; however, the member cannot have reached the normal retirement age under the plan. The member and the employer must enter into a written agreement respecting the phased retirement arrangement which provides for the reduction of the member's regular hours of work once the phased retirement period commences.

The Blakes Pension & Benefits Group is currently preparing a podcast discussing several of the key changes outlined in the Pension Reform Bill that will impact the day-to-day administration of Ontario registered pension plans by employers and their frontline administration staff.

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.