Many of you are undoubtedly dealing with a wide range of issues related to your workplace. Among the issues that may impact your employees and your obligations as an employer are those relating to the administration of a registered pension plan. The purpose of this post is to briefly highlight the obligations of an employer that is also the administrator of a registered pension plan during the COVID-19 crisis.
Duties of Plan Administrators – General
An organization that sponsors and administers a registered pension plan has duties and obligations under both legislation and the common law. Those duties and obligations must continue to be met regardless of the current circumstances; a breach of any of those duties and obligations can result in legal liability.
For example, among other duties, under the Pension Benefits Act (Ontario) ("OPBA"), the administrator has a duty to act with a certain standard of care, a duty to provide information to members and other persons, and a duty to submit employer and member contributions within the time prescribed under the legislation. A plan administrator also has certain duties under the common law, including a duty to act in the best interests of plan members and other plan beneficiaries.
What to do now?
Regulatory Filings and Disclosures
The Ontario pension regulator, the Financial Services Regulatory Authority ("FSRA"), has issued a number of statements in response to the COVID-19 crisis. Included among their statements are FAQs that address, among other matters, extensions for regulatory filings and member communications.
With respect to regulatory filings, FSRA reminds plan administrators that the OPBA allows administrators and their agents to request a filing extension of up to 60 days beyond the prescribed timelines under the OPBA. Such extensions can be submitted through FSRA's Pension Services Portal. Extension requests beyond 60 days should be submitted to the assigned pension officer, preferably by email.
In addition to the filing deadlines, many plan administrators have likely begun the process of working on member annual and biennial statements, which for plans with a calendar year end, are required to be distributed to members, former members and retired members by June 30th. Under the OPBA, FSRA does not have the ability to extend such deadlines. However, FSRA has indicated that if a plan administrator expects to face challenges in meeting the deadlines, they should contact the assigned pension officer as soon as possible to discuss such challenges and the proposed plan of action, in which case FSRA will not impose an administrative monetary penalty for failure to meet the disclosure deadline.
For more information from FSRA, please see https://www.fsrao.ca/newsroom/pensions-3202020-covid-19-response
From a governance perspective, to the extent possible, regular pension or investment committee meetings should continue. With in-person meetings discouraged, pension and investment committees should meet by phone or other means of communication to ensure that they are meeting their duties with respect to the pension plan.
During these uncertain times, it is critical that plan administrators also review their investment policy in order to determine whether any changes can and should be made to the investment of plan assets. Consultation with expert advisors is key during such times, as is communication with plan members who may be concerned about their retirement savings.
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.