Supreme Court Of Canada To Hear Indalex Appeal

The Supreme Court of Canada has granted leave to appeal the decision of the Ontario Court of Appeal in Re Indalex.

In its April 2011 ruling, the Court of Appeal held that the entire amount an employer is required to contribute to fund a pension plan wind-up deficiency under the Ontario Pension Benefits Act (PBA) is subject to the deemed trust provisions of the PBA and, in the circumstances, should be paid in priority to outstanding secured creditor claims. A detailed account of the facts is available in a previous Osler Update relating to the Ontario Court of Appeal decision.

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Quebec Announces Extension of Solvency Funding Relief for DB Plans

Back in 2009, the Quebec government adopted measures to alleviate the effects of the 2008 financial crisis on the funding of defined benefit (DB) plans. These measures allowed an employer to instruct a plan’s pension committee to implement one or more of the following measures for the first complete actuarial valuation dated after December 30, 2008:

  • Use of a “smoothing” method (i.e., averaging method) to value plan assets on a solvency basis over a 5-year period rather than using the current market value;
  • Consolidate certain solvency deficiencies; and
  • Extend the amortization period to eliminate the new solvency deficiency from 5 to 10 years.

 

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Bill C-501: Proposed Changes to Priority of Pension Fund Payments

Last month, I appeared before the federal government’s Standing Committee on Industry, Science and Technology to convey our concerns regarding Bill C-501,An Act to amend the Bankruptcy and Insolvency Act and other Acts (pension protection), which if passed will alter the status of unfunded pension plan liabilities in the context of restructurings and bankruptcies. These changes could negatively impact employers with defined benefit (DB) pension plans and their ability to fund their plans.

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New Settlement Option for Québec Members of Plans

In January 2009, the Québec Supplemental Pension Plans Act was amended to allow retirees and retirement eligible members, whose benefits cannot be settled in full following the termination of the pension plan of a bankrupt employer, to apply for the payment of their benefits through a pension paid by the Régie des rentes out of the assets of the plan (Bill 1).

The assets attributable to those who elect this new option are to be administered and invested by the Régie during a prescribed period and will then be used to purchase annuities at a time when the annuity market is hopefully more favourable. The Régie is thereby assuming the risk of a further deterioration in economic conditions.

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Federal Government Introduces Pension Reform Amendments

With the introduction of Bill C-9 – this year’s budget bill – on March 29th, the federal government is beginning to move forward on a number of the pension reforms that it had announced last fall.

For instance, Bill C-9 contains the increase to the Income Tax Act pension surplus threshold from 10% to 25% of actuarial liabilities (as discussed in our March 25, 2010 post). Bill C-9 also includes a number of significant amendments to the federal Pension Benefits Standards Act (the PBSA), although many of these will require amendments to the Pension Benefits Standards Regulations (PBSR) before they can be fully implemented.

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Pension Plan Funding Deficiency on Wind Up not Secured by Deemed Trust

The recent Ontario Superior Court of Justice decision in Re Indalex has confirmed that the “deemed trust” provisions of the Ontario Pension Benefits Act do not apply to funding deficiencies on plan wind up. Dismissing the “deemed trust” claim, the Court followed the precedent established by previous courts in decisions such as Re Ivaco Inc. and Usarco.

Indalex Ltd. obtained creditor protection under the Companies’ Creditors Arrangement Act (CCAA), and was able to obtain debtor-in-possession (DIP) financing pursuant to the terms of the initial order. A sale of Indalex’s assets was subsequently approved by the Court, and the Monitor was directed to make a distribution to the DIP lenders from the proceeds of the sale. At the sale approval hearing, two groups of pension claimants opposed the sale and claimed that assets equal to the funding deficiencies in two Indalex pension plans were deemed to be held in trust and should be remitted to the plans.

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Early Retirement Package not Discriminatory

A recent decision from the Ontario Human Rights Tribunal has confirmed that an early retirement package which was offered to employees who met certain age requirements did not contravene the Ontario Human Rights Code.

In Kovacs v. Arcelor Mittal Montreal, the employer decided to close a plant as a part of a filing under the Companies’ Creditors Arrangement Act. The employer had negotiated an early retirement package with its union. To be eligible for the negotiated early retirement program an employee had to satisfy one of the following requirements: (i) have 30 or more years of service; (ii) be older than age of 55 with 15 or more years of service; or (iii) be at least 52 years of age but less than 55 years of age with 25 or more years of service.

Mr. Kovacs, an employee at the closing plant, did not satisfy any of the eligibility requirements since he was 47 years old and had only 27 years of service. He launched a human rights complaint, arguing that he had been subject to discrimination on the basis of age.

The Tribunal noted that early retirement plans, which may contain eligibility requirements based on age, are common in unionized workforces and that they provide “superior benefits to older, long service employees; individuals who may experience greater difficulty in obtaining alternative employment if permanently laid-off.”

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$7.5 Million Settlement Reached in Jeffrey Mine Pension Class Action

A $7.5 million class action settlement was recently reached in the Jeffrey Mine case. The settlement brings an end to the $21 million class action lawsuits brought by the members of two pension plans against the pension committee members (acting as plan administrators) -- TAL Global Asset Management Inc. and Buck Consultants Limited.

The plans in this case were wound up after the mining company filed for bankruptcy in 2002. There was a $35 million deficit at the time and the benefits had to be reduced accordingly (i.e., by more than 35%).  The members alleged that the deficit was attributable to the imprudent investment practices of the plan administrator and its advisors (specifically, investing too heavily in equities).

The two class action lawsuits were certified in January 2006 (see judgments in French only: Delorme J. (1) and Delorme J. (2)) and a hearing was scheduled for the fall of 2010.

While the settlement is welcome news for the plan members, it leaves some interesting legal issues unresolved. The case could have provided important judicial guidance as to what constitutes a prudent pension plan investment policy.  Also unresolved is the issue of whether plan members have a direct action against third parties such as investment managers and actuaries. We may have to wait for other cases to address these issues.  For example, it will be interesting to follow the Gourdeau case, in which the Quebec Superior Court will have to determine whether certain investments were prudent in light of the investment policy and the rule of diversification.

TRADUCTION:

L’affaire Mine Jeffrey est réglée pour 7,5 $M

Une entente de règlement des recours collectifs dans l’affaire Mine Jeffrey a récemment été conclue pour une somme de 7,5 $M. Ce règlement met fin aux recours collectifs intentés par les participants de deux régimes de retraite contre le comité de retraite (agissant à titre d’administrateur), TAL gestion globale d’actifs et Les Conseillers Buck Limitée leur réclamant une somme de 21 $M.

Les régimes de retraite concernés dans cette affaire ont été terminés suite à la faillite de cette compagnie minière en 2002. À ce moment, le déficit des régimes s’élevait à 35 $M et les prestations aux membres ont dû être réduites en conséquence (i.e. réduction de plus de 35 %). Les membres alléguaient dans leurs demandes que ce déficit résultait des pratiques imprudentes des administrateurs du régime et de leurs conseillers pour le placement des fonds de la caisse de retraite (notamment, en permettant une trop forte part de placements en actions).

Les deux recours collectifs ont été autorisés en janvier 2006 (voir les jugements : Delorme J. (1) et Delorme J. (2)) et leur audition au fond était fixée à l’automne 2010.

Si ce règlement constitue une bonne nouvelle pour les participants, des questions intéressantes soulevées dans ces recours demeureront sans réponse. Ils auraient pu nous donner une meilleure idée de ce que la cour considère être une politique de placement prudente. La question de savoir si les participants à un régime de retraite ont un droit d’action directe contre des tiers tels que des gestionnaires de placements et des actuaires reste aussi en suspens. Nous devrons probablement attendre d’autres jugements pour une analyse de ces questions. Par exemple, il sera intéressant de suivre l'affaire Gourdeau dans laquelle la Cour supérieure du Québec pourrait devoir décider si certains placements étaient prudents compte tenu de la politique de placement et de la règle de diversification.

Bankrupt Companies and Underfunded Pension Plans

With a number of Canadian companies seeking bankruptcy protection over the past few months, it has become apparent that the defined benefit pension plans sponsored by many of these companies are underfunded. As retirees and former employees protest their shrinking pensions, many are left asking how this all happened.

In a recent interview with the CBC, Brett Ledger answers some of the typical questions that people have when such situations arise.

  • What caused these plans to be underfunded?
  • What responsibility does the government have with respect to these underfunded plans?
  • Will individual RRSPs be sufficient to make up for losses in employer funded pension plans?