In November 2008, the Alberta/British Columbia Joint Expert Panel on Pension Standards (JEPPS) released its report on pension standards in the two provinces. The report, Getting Our Acts Together, encouraged the two provincial governments to take a leadership position in pension reform and forge harmonized pension standards legislation which would provide a solid foundation for private sector pension plans and facilitate inter-provincial labour mobility.
The JEPPS’ vision of a fully harmonized joint-regulatory environment for Canada’s two westernmost provinces failed to materialize. The vision was left on the cutting-room floor, so to speak, as Alberta adopted its reformed pension standards legislation in 2014 and BC followed-suit with its own in 2015 – absent any joint regulator, joint tribunal or joint policy advisory council, as recommended in the JEPPS report.
That said, the new Acts themselves are principles-based, as opposed to rules-based, and there is a great deal of harmonization between the two, including the requirement for plan administrators to complete a triennial administrative assessment (TAA) for their pension plans.
For private sector BC and Alberta pension plans with a calendar year-end, the first TAA must be undertaken with an effective date of December 31, 2016, and a written assessment completed by December 31, 2017. The exercise is to be repeated triennially thereafter.
Topics for Assessment
The TAA requirement is designed to force a plan administrator to do some soul-searching about how well it is administering the pension plan. At a minimum, TAA requires a review of the following:
- Legislative Compliance
- Plan Governance
- Plan Funding
- Plan Investments
- Trustee Performance (if any)
- Administrative Staff and Agent Performance
Administrators must retain a copy of the written assessment and make it available to the provincial pension regulator on request. There’s little doubt that regulators will undertake spot audits early in 2018 to confirm that the TAA requirements have been satisfied.
Where’s the stick?
The BC and Alberta pension legislation introduced a new enforcement tool to ‘encourage’ plan administrators to complete required tasks on time. The legislation empowers the Superintendent to order administrative penalties on corporations and administrators for contraventions of legislative provisions. The maximum penalties range from $50K to $250K for corporations or administrators and from $10K to $50K for individuals, depending on which administrative provisions have been contravened. FICOM, the BC pension regulator, issued guidelines in June of this year suggesting that the higher penalties, which are discretionary in nature, will only be imposed where there has been significant delay in completing required legislated tasks.
Even without the administrative penalty provisions, plan administrators are required to comply with applicable legislation and regulatory requirements. Failure to do so, especially if the failure leads to significant losses to the pension fund, might be viewed in subsequent court proceedings as a breach of fiduciary duty.
Penalty and fiduciary implications aside, plan stakeholders and administrators should embrace the TAA as an opportunity to assess their administrative processes. While there’s never a good time to do soul-searching of this nature, if not on a triennial basis, when would be an appropriate time to ensure that employee pensions are being properly looked after?
Start now while there’s still time
Although plan administrators have until the end of 2017 to complete their written assessments, stakeholders need to recognize that a snapshot of administrative efficiency is to be taken at year-end, so there’s little time left in 2016 to ‘right-the-ship’. They need to determine if current administrative processes sufficiently address the enumerated list of assessment topics – for example, ensure that an updated Governance Policy, Funding Policy and Statement of Investment Policies and Procedures are in place – and, if not, take steps to address any shortfalls. Failure to fill the ‘gaps’ now might lead to a failing grade when the assessment begins in earnest at year-end.