Employment & Labour Law 

As part of the enhanced governance requirements under British Columbia’s Pension Benefits Standard Act and Alberta’s Employment Pension Plans Act, pension plan administrators in Alberta and British Columbia are required to conduct an assessment their plan every three years. The deadline to complete the first assessment is December 31, 2017.

December may seem far off with summer just getting into full swing, but if you administer a pension plan in Alberta or BC you should start the assessment process soon in order to meet the deadline.

Contents of the assessment

The scope of the assessment under the legislation is broad, covering the “administration of the plan”. The assessment should at a minimum cover the following areas and policies:

• the plan’s compliance with the applicable pension legislation
• the plan’s governance
• the funding of the plan
• the investment of the pension fund
• the performance of the trustees, if any, and
• the performance of the administrative staff and any agents of the administrator

The Alberta Superintendent of Pensions has issued draft guidelines stating that the use and completion of the CAPSA Guideline No. 4 Pension Plan Administrator Governance Self-Assessment Questionnaire is acceptable as the written assessment. The British Columbia Superintendent has not yet issued assessment guidelines, but we understand guidance is under development.

Administrators may also develop their own assessment framework or use one prepared by a third party. Regardless of which assessment framework you use, you should be satisfied that it is appropriate for your plan.

Does the assessment need to be filed?

No. You must complete and retain the written assessment and make it available to the relevant Superintendent of Pensions upon request.

Confidentiality concerns

Although required by statute to complete the assessment, you should be careful about what you include in the final written assessment. Much like pension committee minutes, the assessment may contain confidential information about your plan and is a potential source of liability. Further, an assessment in the hands of a Superintendent may be subject to a request under freedom of information legislation.

A review by a lawyer prior to finalizing a plan assessment can mitigate some of these confidentiality concerns and identify potential liability in the written assessment.

Yesterday the Ontario Deputy Superintendent of Pensions released a formal statement that included the comment:  “these are interesting times in the pension sector.”  How true.

Many long-anticipated improvements to Ontario pension legislation, regulation and policies are finally coming into force.  The pension regulator will have more specific, helpful powers to target non-compliance issues.  Plan sponsors will have more choices in the design of pension plans, especially in the defined contribution sphere.  And many employers who sponsor defined benefit pension plans will be pleased by this morning’s Ontario government announcement about an entirely new framework for funding defined benefit pension plans, which will come into effect “in the coming weeks”.

We have written about some of these promised changes in prior posts (here and here).  We will be providing more details and strategic suggestions about these interesting developments, in future articles.  In the meantime, you can find information about this this morning’s announcement by the Ontario government here.

Please contact a member of Dentons’ Pensions and Benefits group for information and advice about how these significant changes will affect your business.

The countdown is on.

Over the weekend the Toronto Star and the CBC each published stories detailing what Ontarians can expect to see in the long awaited final report from the Changing Workplaces Review when it is released later this month. Citing unnamed government sources, the media outlets report that the Changing Workplaces Review has proposed a number of changes to Ontario’s labour and employment legislation including:

• making it easier for cleaning staff and home-care workers to unionize;
• requiring that employers provide employees with paid sick days;
• increasing the minimum amount of vacation from 2 weeks to 3 weeks;
• providing certain protections to independent contractors;
• eliminating some of the exemptions to the Employment Standards Act, 2000 so that more workers are entitled to overtime and certain leaves of absence.

In addition, there is speculation that the Government may increase the minimum wage to $15.00 per hour.

We will continue to follow this story and will provide a comprehensive review once the final report is released.

Pension plan sponsors and administrators have much to anticipate with the release of the 2017 Ontario Budget: A Stronger, Healthier Ontario (Budget) on April 27, 2017.  The Budget provides updates to several pension reform initiatives that many stakeholders have been waiting for, as well as new proposals aimed at benefiting plan sponsors, administrators and members.  The Budget also recaps recent major changes to the pension landscape, including the future enhancements to the Canada Pension Plan and the ability to implement Pooled Registered Pension Plans in Ontario.

Review of Ontario’s Solvency Funding Framework

Plan sponsors of defined benefit (DB) pension plans will be most interested in the Ontario government’s progress in reviewing the solvency funding regime in Ontario. Last summer, a consultation paper was released outlining two general approaches for reforming Ontario’s solvency funding framework: (i) maintaining the requirement to fund on both going concern and solvency bases, while modifying solvency funding requirements; and (ii) enhancing going concern funding requirements while eliminating current solvency funding requirements. The Budget provides that guiding principles for the new solvency funding framework will be released before the end of June 2017, along with measures to support transition to the new framework.  Draft regulations will be released for public consultation later this fall.

• If you sponsor an Ontario-registered DB pension plan, you should continue to follow Ontario’s review of its solvency funding framework.  In particular, if an actuarial valuation report will be filed for your pension plan in the coming months, you should assess how the new framework could impact your pension plan and whether adjusting your funding objectives may be beneficial.

Framework for Target Benefit Multi-Employer Pension Plans

The Budget reiterates the Ontario government’s commitment to establishing a new regulatory framework for target benefit multi-employer pension plans (MEPPs). Later this spring, the proposed framework for target benefit MEPPs will be announced and draft regulations for public consultation will be released this fall.  The new framework will be of greatest interest to unionized employers participating in certain MEPPs, known as specified Ontario multi-employer pension plans (SOMEPPs), as the new framework would replace the current time-limited funding rules for SOMEPPs.

• If you participate in a SOMEPP, you should continue to monitor these changes and consult with you plan administrator to confirm whether modifications will be made to your plan.

Modernizing the Framework for Defined Contribution Pension Plans

Several proposals to modernize rules relating to defined contribution (DC) pension plans are included in the Budget. Most notable are (i) the introduction of amendments to allow DC pension plans to pay variable benefits directly to plan members; (ii) potential updates to DC disclosure rules on plan member annual statements; and (iii) discussions with stakeholders regarding new approaches for managing the decumulation phase.

• If you sponsor a DC pension plan, you may want to consider the advantages and disadvantages of offering variable benefits through your pension plan and the additional expenses that could be imposed in doing so.  Note that regulations regarding variable benefits will be developed this spring.
• If you are a plan administrator, you should be mindful of the possible changes to pension governance obligations and administration costs if your pension plan provides variable benefits directly to plan members.  Among other things, you would continue to owe a fiduciary duty to plan members who choose to leave their assets in the plan, be required to maintain accounts with your DC service provider for these members and be obligated to provide ongoing plan information, such as member statements and investment disclosure, in accordance with legislative requirements and the CAP Guidelines.  We encourage you to assess the possible impact to your pension plan in light of the proposals and consider how best to discharge your obligations in the most effective and cost efficient manner.

Dealing with Missing Beneficiaries

The Budget acknowledges the challenges faced by plan administrators in trying to locate missing plan beneficiaries as well as the lack of guidance in dealing with this issue. In response, the Ontario government will instruct the Superintendent of Financial Services (Superintendent) to develop a policy to assist plan administrators in locating missing plan beneficiaries.  In addition, amendments to the Pension Benefits Act will be made to allow the Superintendent to waive requirements for providing pension statements to beneficiaries who cannot be located.  Other measures such as creating a registry for such beneficiaries will also be explored.

• If you are a plan sponsor or administrator, you can look forward to the helpful guidance on dealing with missing plan beneficiaries as the proposed measures should have a positive impact on your pension plan administration policies.

New Pension Regulator and Powers of the Superintendent

The Ontario government reaffirmed its commitment to establishing a new financial services and pension regulator, the Financial Services Regulatory Authority (FSRA), in the Budget. The government expects to appoint a board of directors for FSRA in spring 2017.  It will also continue to consult with stakeholders and review recommendations from the expert advisory panel in developing FSRA’s mandate and governance structure.  More information regarding FSRA can be found in our November 24, 2016 blog post.

The government is moving forward with expanding the powers of the Superintendent. Draft regulations regarding the Superintendent’s authority to impose administrative monetary penalties (AMPs) were posted on April 28, 2017 and comments are due by June 12, 2017.  Additional amendments will also be introduced to further expand the Superintendent’s powers, including the ability to direct plan administrators to provide certain information to plan beneficiaries and to hold meetings to discuss matters specified by the Superintendent.

• If you are a plan sponsor or administrator, you should be aware of the new rules regarding AMPs and when and how they can be applied.  Taking care to fulfil your fiduciary obligations will be key to avoiding possible AMPs and orders from the Superintendent.

Conclusion

Many of the pension reform initiatives announced in the Budget provide for further information to be released and action to be taken in the coming months.  We will keep you updated on these changes.  For more information and assistance in reviewing how these changes impact you and your pension plan, please contact a member of Dentons’ Pensions and Benefits group.

Are you an employer who is uncertain about what you should be doing to prepare for the changes to the Canada Pension Plan (CPP)?  This guide will help you.

The changes were announced by the federal government a year ago, and formal rules became law at the end of 2016.  Unlike the infamous Ontario Retirement Pension Plan, these government-run pension changes are here to stay.

Here is a summary of the changes.

 Mandatory contributions to the CPP by employers and employees will increase, starting January 2019.  The increases will be phased in gradually over several years.  By 2023 employers and employees will each be paying 5.95% of their eligible income to the CPP.  Right now they are each contributing 4.95% of eligible income.

It’s a significant increase in contributions.  The combined employer and employee mandatory contributions to the CPP will go from 9.9% of employees’ eligible income to 11.9% of their eligible income.  That’s a 21% increase.

And it’s an even bigger hit for higher-income employees and their employers.  Anyone with an annual salary of more than $70k (approximately), and their employers, will have to make additional contributions commencing 2024.

The upside is that the amount of the CPP benefit paid to Canadians will increase.  It is expected that the annual benefit paid by the CPP will increase by as much as 50%.  In today’s dollars, the maximum CPP annual payout would go from $13,370 to $20,000.  This full enhancement to the CPP benefit probably won’t be seen for approximately 40 years.

If you have Quebec employees, beware:  the CPP does not apply.  Changes to the Quebec Pension Plan are being considered, but it’s not known whether or when any changes will be made.

January 2019 is not far away.  If you will be making changes to retirement and savings plans as a result of the CPP changes, you may want to communicate those changes to employees in the next year or so.

As a starting point, here are some high-level strategic suggestions:

 If you have a Group RRSP or defined contribution pension plan:

• Consider whether to reduce the amount of required employee contributions to your plan, so that there will be little or no impact on your employees’ take-home pay.
• Consider reducing employer contributions to your Group RRSP or defined contribution pension plan, so that the overall employer costs of contributing to the CPP and your employer-sponsored plan remain level.  If you decide to do so, communicate the changes to employees now, so they are well aware in advance of any changes.

If you have a defined benefit pension plan:

• Find out if there is anything in your pension plan that relates to the CPP.  Are employee contributions computed based on how much they contribute to the CPP?  Is there a “bridge benefit” that relates to the CPP?
• Ask your actuary whether the liabilities of your pension plan will increase as a result of any provisions that relate to the CPP.
• Consider amending your pension plan to lessen the impact of the CPP changes, if any, on the design of your plan.

If you have a union:

• Find out if there are sections of the collective agreement that will restrict you from making changes to your retirement savings plans.  Consider letting the union know, in collective bargaining, that changes may be made due to CPP changes.
• If the term of the collective agreement goes beyond 2018, formulate a plan to communicate to the union the fact that employee take-home pay will go down as a result of higher CPP contributions.

Please contact a member of the Dentons Canada pension and benefits group for assistance in understanding how the CPP changes will impact your organization.  Be prepared.

In a recent decision, the Honourable Justice Marrocco of the Ontario Superior Court of Justice denied the request of the Amalgamated Transit Union Local 113 and Robert Kinnear (the “Applicants”) to restrain the TTC from conducting the random drug and alcohol testing of its employees.

The random testing applies to TTC employees who work in safety sensitive, specified management, senior management and designated executive positions, including the TTC’s CEO. The TTC expects to test 20% of its eligible employees per year, which means that statistically, each eligible employee has the chance of being tested once every five years. If selected, employees will be required to take an alcohol breathalyzer test and an oral fluid drug test. A failure to submit to a random test will be a violation of company policy, and employees who test positive will be considered unfit for duty.

The TTC first introduced random testing to its Fitness for Duty Policy in 2011 and the parties have since been involved in an ongoing arbitration on the same issue, which “has no end in sight”. The TTC approved the implementation of the random testing on March 23, 2016. Shortly thereafter, the Applicants applied to the Court for an injunction to stop the testing until the completion of the arbitration hearing.

The Applicants argued that random drug and alcohol testing would cause employees “irreparable harm” by infringing on the employees’ right to be free from unreasonable search and seizure. The Applicants also stated that the random testing: increased the likelihood of psychological harm to the employees, could damage the relationship between employees and management, and raised the risk of false-positive results.

In rejecting the Applicants’ arguments, the Court determined that TTC employees in safety-sensitive positions have a reasonably diminished expectation of privacy concerning their drug and alcohol consumption. In particular the Court noted that:

• The employees’ duties, which include helping people make approximately 1.8 million journeys on the TTC’s system every day, as well as the TTC’s atypical workplace, which is “genuinely Toronto itself”, reasonably diminish the employees’ expectation of privacy concerning drug and alcohol consumption;

• The TTC has chosen minimally invasive methods to conduct the random testing, which are superior to other methods available on the market;

• The nature of the Fitness for Duty Policy is both disciplinary and remedial. Employees have the opportunity to challenge any positive results and have some degree of control over the information collected and generated in the testing process; and

• Employees whose privacy has been “wrongfully infringed” by random testing have the opportunity to claim, and receive, monetary damages.

As such, the Court concluded that the TTC’s random drug and alcohol testing is an appropriate tool, which “will increase public safety”, as follows:

“After considering all the evidence, including the evidence to which I have referred, I am satisfied that, if random testing proceeds, [it] will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.”

While the decision provides important insight on how the Court will approach the exercise of balancing employee privacy rights with the needs of a safety-sensitive workplace, it must also be remembered that this was an injunction application to prohibit the introduction of the Policy pending the arbitration, not a decision on the merits of the TTC’s Policy, which will be determined at arbitration. That said, the TTC has announced that the random drug and alcohol testing of its employees will begin this month (see the TTC’s press release here). The Court’s decision will likely encourage other employers in Ontario, particularly those in similarly-situated safety-sensitive workplaces, to follow suit.

A copy of the full decision can be found here: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078

The Federal government announced in the budget that it intends to “stretch” employment insurance (“EI”) parental leave benefits to up to 18 months at a lower benefit rate of 33% of average weekly earnings (find that announcement here, at page 65).  That raises the question:  what is the employer’s obligation to hold a person’s job and reinstate the employee who wants to take the longer leave?  Is there an obligation to now have the same/comparable position to return to after the 18 months?

For provincially regulated employers, the short answer at this point is “unknown”.  Except in Quebec (which has its own parental insurance plan and is therefore unaffected by the federal changes), EI benefits are payable under the ‎federal Employment Insurance Act, so employees receive EI benefits (including maternity benefits) under that legislation. The right to a pregnancy/parental leave, and the right to reinstatement, arise under the provincial legislation (in Ontario, the Employment Standards Act).

Since benefits are determined under the ‎EI Act, but the right to a leave (and reinstatement) are entitlements granted by virtue of the provincial legislation, an increase in the length of benefit entitlement does not automatically mean an increase in the length of the leave entitlement.  The provincial governments are likely studying this and may change the provincial legislation to make the leave entitlement correspond to the extended benefit entitlement, but perhaps not. We’ll have to wait and see what the provinces do with the new federal EI rules.

For federally regulated employers, the Federal government plans to amend the Canada Labour Code to protect the jobs of federally regulated employees while they are receiving the extended parental leave benefits.

In the meantime, employers should keep an eye on this issue.  In particular if an EI top-up plan is in place in the workplace, employers should consider now how these changes will affect the plan, and whether amendments to the plan are needed in light of these changes.

In a July 2016 decision, Providence Health Care v. Dunkley, 2016 BCSC 1383, the British Columbia Supreme Court held that Providence Health Care (PHC) and the University of British Columbia (UBC) failed to establish that the costs of providing interpreter services for a deaf medical resident constituted undue hardship.

The decision is a reminder of the demands placed on employers to accommodate, and that a successful undue hardship defence based on financial reasons will require extensive financial disclosure on the part of the employer and related entities.

Briefly, the facts of the case were as follows. The claimant secured a residency position at PHC, a local hospital. Due to a profound hearing loss, she required the use of sign language interpreters. On the residency start date, arrangements for interpreter services had not been made and a few months later, the claimant was placed on paid leave, followed by unpaid leave.  PHC subsequently informed her that accommodation could not be provided and dismissed her from PHC as an employee and from UBC as a resident.  The claimant filed a complaint with the British Columbia Human Rights Tribunal, who found that PHC and UBC had discriminated against her on the basis of her physical disability.  The Tribunal concluded that PHC discriminated against the respondent regarding employment, contrary to s. 13 of the British Columbia Human Rights Code, while UBC discriminated against her by denying her accommodation, services or facilities customarily available to the public, contrary to s. 8 of the Code.

On judicial review, the British Columbia Supreme Court upheld the Tribunal’s decision.  The Court reaffirmed that the relevant considerations were the employer’s efforts to accommodate; the options explored and/or offered to the employee; and explanations given for the absence of such offers.

The Court upheld the Tribunal’s finding that PHC had used an unreliable cost estimate, and that both PHC and UBC had failed to undertake a reasonable investigation into the true cost of accommodation. Further, the Court confirmed that PHC could not base its claim of undue hardship only on its own budgetary restrictions.  The financial resources of UBC, Vancouver Coastal Health Authority (VCHA) and the Ministry of Health were also relevant since those entities were either affiliates of PHC or had agreed to provide it with funding for the UBC residency program.  Consequently, PHC should have explored the possibility of obtaining additional financial resources from those entities or establishing a cost sharing model as part of its investigation into costs.

The Providence Health Care v. Dunkley decision highlights that employers must prove that they have engaged in a comprehensive investigation into the true cost of accommodation, including an assessment of all sources of funding available, before they successfully rely on undue hardship.

A series of Ontario cases dating back to 2012 has put into issue the question of what does, or doesn’t, make a termination provision enforceable.  After a number of recent employer-friendly decisions, the Ontario Court of Appeal has weighed in with a decision that contains some good news, and some bad news, for employers.

In Wood v. Fred Deeley Imports Ltd., the court primarily looked at: (i) whether or not consideration was required to uphold an employment agreement; and (ii) whether the termination provision in the agreement was unenforceable (thereby opening the door to a common law notice award).  The Plaintiff, Julia Wood, was an 8.4 year employee at the time of her termination.  She signed an employment agreement the day after she started work that contained a termination provision which provided for “2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment…”.  The termination provision also stated that “… the Company shall not be obliged to make any payments to you other than those provided for in this paragraph” and “The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000”. On termination, the employer provided Wood with 13 weeks of working notice, followed by a lump sum payment equal to 8 weeks of pay.

In looking first at the consideration issue, the court found that Wood had been provided with a copy of the Agreement prior to her start date, although it wasn’t signed until the day after she started work.  The court determined that this was not a case where Wood was seeing the Agreement for the first time when she signed it, nor was it a case where a new material term was introduced into the Agreement at the time of signing.  The court went on to find that the signing of the Agreement the day after Wood commenced employment was merely an administrative convenience and therefore fresh consideration such as a signing bonus was not required in order to make the Agreement valid and enforceable.  The employer was therefore successful in arguing that the Agreement was not void for lack of consideration.

However, things went downhill from there for the employer.  In looking at the termination provision, the court found that it contravened the Employment Standards Act, 2000 (ESA) and therefore was unenforceable.  It came to this conclusion for two reasons.  First, the court found that because the termination provision did not expressly require the continuation of benefits through the ESA notice period, it was in contravention of the minimum standards of the ESA.  This was so even though the employer gratuitously provided benefit continuance through the entirety of the ESA notice period.

Second, the court found that although it was possible that the termination provision could provide notice and statutory severance in accordance with or even in excess of the ESA, it was also possible for it to undercut the minimum provisions of the ESA.  Simply put, even though the “2 weeks per year” calculation could potentially result in the employee receiving more than her ESA notice and severance entitlements, it could also have the opposite effect.  In particular, Wood received less than her ESA severance in the case at hand because the payment of 8 weeks at the end of her working notice period was less than the 8.4 weeks of severance that she was entitled to under the ESA.

The court reviewed termination provisions in other cases and once again made it clear that each case will be decided based on its own facts.  For example, a termination provision which is not well drafted but does not expressly contract out of the ESA may yet be enforceable, despite this case. On the other hand, a termination provision which expressly contracts out of the ESA, as was the case here, will not be enforceable.

The broken record continues – the importance of properly drafting termination provisions cannot be understated and with so much at stake, it is critical that employers regularly review and update their termination provisions with the assistance of legal counsel.

The court’s decision in Wood v. Free Deeley Imports Ltd. may be found here.

Any person who is the “spouse” of a member of a registered pension plan in Canada has rights regarding the pension entitlement of his or her partner. That important policy has been entrenched in pension legislation for decades.  Exactly who is a “spouse”?  The answer to that question has recently become a bit more complicated.

The Ontario government changed the Ontario Pension Benefits Act effective January 1, 2017 to recognize the evolving definition of a family, for legal purposes.  Administrators of registered pension plans should take steps now to ensure that their pension plan documentation and administration is keeping up with these changes.  Reputational and financial costs could be imposed on pension plan administrators who fail to recognize spouses’ rights to pensions, in this modern world where there has been an evolution of what constitutes a spouse.

The basic rules in Ontario are that two people are spouses for pension purposes if they are married to each other, or they fall within one of the following two categories:

• they have been living in a conjugal relationship continuously for at least three years, or
• they have been living in a conjugal relationship of some permanence for less than three years and are the parents of a child.

Effective January 1, 2017 a change was made to Ontario pension benefits legislation that is relevant to the phrase, “parents of a child”.

Prior to 2017, the Ontario legislation said that spousal pension rights under the parent category were triggered if the plan member and his or her partner were “the natural or adoptive parents of a child”.  That wording was simple.  Arguably, it did not capture circumstances where a child was conceived with assisted reproduction.  And it certainly did not address the complex issues of surrogacy or sperm donors.

The Ontario government has stepped in to address these complex issues. The definition of “parents of a child” in the Ontario pension benefits legislation now refers to provisions of the Ontario Children’s Law Reform Act.  That legislation has detailed provisions that address the complicated question of “who is a parent?”.  These are not simple provisions.  For example, they address circumstances of surrogacy where entitlement to parentage has been waived.  They also address circumstances of sperm donors where there is a written agreement, prior to conception, confirming that the donor does not intend to be a parent.

Pension plan administrators should consult their advisors to understand how to navigate these new requirements. Pension plan texts, member booklets, forms, and all other communications and administration must align with these changes.  Administrators will have to rely on experts to determine whether an individual is a spouse of a pension plan member, if the two individuals have been living together for less than three years, but may qualify as “spouses” because there is a child.

Administrators have a legal obligation to ensure that the correct individuals receive their pension entitlements. That means that these new Ontario requirements should be considered and implemented in all aspects of documentation and administration.