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PENSIONS AND BENEFITS
2013 UPDATE
SEMINAR
STIKEMAN ELLIOTT LLP
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MONTRÉAL
TORONTO
OTTAWA
CALGARY
VANCOUVER
JUNE 13, 2013
NEW YORK
LONDON
SYDNEY www.stikeman.com
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MONTRÉAL
TORONTO
OTTAWA
CALGARY
VANCOUVER
NEW YORK
LONDON
SYDNEY
www.stikeman.com
2013 UPDATE
AGENDA
JUNE 13, 2013
7:30 am Breakfast and Registration
8:00 am
Welcome and Introductions
Bruce Pollock, Moderator
Partner, Stikeman Elliott, Toronto
8:05 am Presentations
Legislative and regulatory update
Luc Vaillancourt, Associate
Case law update
Lyle Teichman, Counsel
Focus on Indalex decision - What plan sponsors need to know
Andrea Boctor, Partner
9:00 am Question and Answer Period
9:15 am
Closing Remarks
2013 UPDATE
CONTENTS
SPEAKERS
JUNE 13, 2013
Bruce Pollock, Partner (Moderator)
Employment, Labour & Pension Group
Stikeman Elliott, Toronto
Luc Vaillancourt, Associate
Stikeman Elliott, Toronto and Montréal
Lyle Teichman, Counsel
Andrea Boctor, Partner
PRESENTATION SLIDES
Case law update
RESOURCES
Articles
Employer’s tax equalization policy for international employees continues
past retirement, Lyle Teichman, May 10, 2013,
Surplus Sharing Arrangement goes sour after Meilleur Avant date,
Lyle Teichman, May 08, 2013, www.CanadianEmploymentPensionLaw.com
Tax Court of Canada permits employer deduction of fair market value of
stock grant, Carla Hanneman and Lyle Teichman, December 07, 2012,
Case Summary
“Re INDALEX in the Supreme Court of Canada”, Andrea Boctor et al,
Stikeman Elliott, February 2013
FIRM PROFILE
An overview of Stikeman Elliott and our Employment, Labour & Pension Group
2013 UPDATE
PROFILES OF TODAY’S SPEAKERS
JUNE 13, 2013
Bruce Pollock
Partner (Moderator)
Luc Vaillancourt
Associate
Stikeman Elliott, Toronto and Montréal
Lyle Teichman
Counsel
Andrea Boctor
Partner
Bruce Pollock
5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9
Direct: (416) 869-5566 Fax: (416) 947-0866 [email protected]
Law Practice
Bruce Pollock is a partner in Stikeman Elliott's Toronto office, a member of the Employment,
Labour and Pension Group and past Head (1998-2008) of the Group. He has been involved in
advising clients on all aspects of the employment relationship in both unionized and non-unionized
environments. He has also been involved in providing advice in respect of the employment impact
of various commercial transactions.
Mr. Pollock has been extensively involved in representing clients’ interests in litigation arising out of
employment relationships including wrongful dismissal litigation, occupational health and safety
litigation, pension litigation, class actions, arbitration hearings, labour board proceedings,
alternative dispute resolution mechanisms, and judicial review of administrative actions.
Mr. Pollock also has extensive advocacy experience outside of the employment, labour and
pension area, having appeared before all levels of court in Ontario, the Federal Court of Appeal
and the Supreme Court of Canada and before numerous administrative tribunals including the
Ontario Labour Relations Board and the Financial Services Tribunal.
Professional Activities
Mr. Pollock is a member of the Toronto Lawyers Association. He has frequently given seminars,
lectures and speeches on a variety of employment law matters including occupational health and
safety and alternative dispute resolution. Mr. Pollock is an Associate Editor of Canadian Cases on
Pensions and Benefits and a past member of the Financial Services Commission's Legal Advisory
Committee and the Financial Services Tribunal's Legal Advisory Committee.
Mr.
Pollock
is
editor
of
the
firm’s
www.canadianemploymentpensionlaw.com.
Employment
and
Pension
law
blog,
Publications
Mr. Pollock’s publications include:
> “Confidentiality, Intellectual Property and Competitive Risk in the Employment Relationship” –
Canadian Bar Review, Volume 83, 2004;
> “Municipal Downloading – Is Subcontracting an Answer” – Municipal World, August, 1998; and
> “Use of Alternative Dispute Resolution in Employment Related Disputes” – Federated Press,
October, 1996.
Education
University of Toronto (LL.B. 1978), Queen’s University (B.Comm. Hons. 1975).
Bar Admission
Ontario, 1980.
STIKEMAN ELLIOTT LLP PROFILE
Luc Vaillancourt
1155 René-Lévesque Blvd. West, 40th floor, Montréal, Quebec, Canada H3B 3V2
Law Practice
Luc Vaillancourt is a lawyer in the Montréal office of Stikeman Elliott. He advises clients in all
areas of the firm’s pensions and benefits practice. Areas of particular emphasis include
pension issues in the context of mergers and acquisitions and bankruptcy and insolvency.
He also advises clients with respect to a full range of pension investment and administration
issues, and the pension issues that arise in the context of lending arrangements. He is
currently on secondment to the Toronto office.
Mr. Vaillancourt is a member of the Canadian Bar Association, Quebec Bar and of the
Young Bar Association of Montreal.
Education
McGill University (LL.B. and B.C.L., 2008, magna cum laude)
McGill University (B.A., 2005, magna cum laude)
Bar Admission
Ontario, 2012
Québec, 2010
Lyle Teichman
Law Practice
Lyle Teichman is a Senior Pensions Counsel in the Toronto office of Stikeman Elliott LLP.
His practice focuses on pension and employee benefits law, executive compensation,
executive pensions, supplemental employee retirement plans (SERPs) and cross-border
compensation issues. Mr. Teichman has provided both legal and strategic advice to a wide
range of clients in the areas of pension and employee benefits, pension issues in mergers
and acquisitions, plan terminations, pension plan design, administration, funding,
investments, cross-border pension issues, executive compensation matters and tax planning
for departing and transferring executives and senior employees.
Mr. Teichman is a member of the Law Society of Upper Canada, the Ontario Bar
Association, the Canadian Tax Foundation and the International Pension and Employee
Benefits Lawyers Association.
Mr. Teichman is also Chair of the Financial Services Commission of the Ontario Legal
Advisory Committee and sits on the executive of the Pension and Employee Benefits
Section of the Ontario Bar Association. He is also a past member of the Canada Revenue
Agency Pension Advisory Committee.
Mr. Teichman is a frequent speaker at industry conferences and has authored numerous
papers and articles concerning pensions and related tax matters.
Background
Prior to joining Stikeman Elliott, Mr. Teichman was a pensions lawyer/consultant at Towers
Watson, where he was the national leader of the tax issues and SERP practice areas.
Education
Osgoode Hall Law School (J.D. 1981)
Bar Admission
Ontario, 1983
Andrea Boctor
Law Practice
Andrea Boctor is a partner practising in the Toronto office of Stikeman Elliott. Ms. Boctor
advises clients in all areas of the firm’s pensions and benefits practice. Areas of particular
emphasis include pension issues in the context of mergers and acquisitions and bankruptcy
and insolvency. Ms. Boctor also advises clients with respect to a full range of pension
investment and administration issues, and the pension issues that arise in the context of
lending arrangements.
In addition, Ms. Boctor advises clients on executive compensation matters including the
taxation of stock and non-stock based compensation, supplemental pension and retirement
compensation arrangements, and bonus arrangements.
Ms. Boctor is recognized in Chambers Global’s The World’s Leading Lawyers for Business
for her expertise in pensions & benefits law.
Ms. Boctor is the Chair of the Ontario Bar Association’s Pensions and Benefits Section
executive and sits on the executive of the Canadian Bar Association Pensions and Benefits
Section. She is the editor of Canadian Cases on Pensions and Benefits and has written and
spoken extensively on pensions-related issues. She also contributes to the firm’s
Employment and Pension Law blog, canadianemploymentpensionlaw.com. Ms. Boctor has
been a guest lecturer on pension issues at the University of Toronto and Osgoode Hall Law
Schools.
Ms. Boctor is a member of the Canadian Bar Association, Ontario Bar Association, Law
Society of Upper Canada, Association of Canadian Pension Management, and International
Pension & Employee Benefits Lawyers Association.
Publications & Speaking Engagements
Publications
> “Review of Stock Option Arrangements in Light of Tax Withholding Changes”, Ontario
Bar Association “Business Beat” co-authored with Ramdeep Grewal, April 2011
> “Ottawa takes a swing at pension reform”, co-authored with Gary Nachshen and Angela
Waite, November 2009
> “Spare No Expense” Benefits Canada, co-authored with Angela Waite, October 2009
> “Supreme Court delivers the final word in Kerry: Welcome news for pension plan
sponsors”, co-authored with Gary Nachshen and Angela Waite, August 2009
> “Employer Insolvency and the Pension Plan”, co-authored with Ashley Taylor, February
2008
> “Ontario pension reform commission releases report”, co-authored with Gary Nachshen
and Angela Waite, November 2008
> “Done Deal?” Benefits Canada, September 2007
Speaking Engagements
> “Issues in Pension Accounting”, 2013 International Conference, International Pension &
Employee Benefits Lawyers Association, May 2013
> “Pension Plan Sponsorship and Fiduciary Duty: SCC guidance in Indalex and PSAC”,
th
11 Annual Pensions and Benefits Hot Spots conference, Ontario Bar Association, May
2013
> “Plan Governance & Practical Communication Strategies – How to Ensure You Have
th
Educated Plan Members and What You Need to Do to Minimize Your Risk”, 14
Advanced Forum on Pension Law, Governance & Solvency, The Canadian Institute
April 2013
> “Pensions in Corporate Transactions and Restructuring: Insolvency Issues”, Osgoode
Certificate in Pension Law, February 2012
> “Bargaining Trends in Pension and Benefit Provision”, CAA/IPEBLA Conference, April
2012
> “Private Pensions, Public Responsibilities: The Law and Regulation of the Canadian
Pension System”, at the University of Toronto Faculty of Law, March 2011
> “Navigating Through a Sea of Change”, 2011 OBA Institute Pension and Benefits Law
Seminar, February 2011
> “Pension Issues Arising in Corporate Transactions and Restructuring”, 6th Annual
Essential Course in Pensions, Osgoode Professional Development - CLE, December
2010
> “Pension Reform: New and Proposed Legislation”, 17
Committee Members Conference, November 2010
th
Essential Skills for Pension
> “Pension: A Year of Change", Joint Association of Corporate Counsel and Stikeman
Elliott Employment/Pension Seminar, October 2010
> “Employment Issues Arising on the Purchase and Sale of a Business 2010: What
Lawyers Need to Know”, LSUC Conference, October 2010
> “Pensions and Benefits in a Changing Global Environment”, CBA/IPEBLA Conference,
June 2010
> “Pensions - The Large Picture and the Post-Secondary Picture”, CURAC Annual
Conference, May 2010
> “Essential Updates on Key Legal Issues in Pensions and Insolvency Law”, 8th Annual
Pension and Benefits Hot Spots: Essential Updates on Key Legal Issues, Ontario Bar
Association, May 2010
> Spoke to Legislative Committee on Finance and Economic Affairs on Bill 236 (The
Pension Benefits Amendment Act, 2010), presented on behalf of the Ontario Bar
Association, April 2010
> “Insolvencies and Pension Plans” at the Pension and Benefits: The Next Generation
Session, Ontario Bar Association Institute 2010, February 2010
> “Dealing with the Impact of Insolvencies & Restructurings on Pension Plans”, 10th
Annual Conference on Advanced Insolvency & Restructuring Law, Canadian Institute,
January 2010
> “Employer Insolvency and the Pension Plan”, Shortfalls for DB & DC Pension Funds
Course, Federated Press, October 2009
> “Employer Insolvency and the Pension Plan”, 13 Annual Essential Skills for Pension
Committee Members Conference, Federated Press, October 2009
th
> “Employer Insolvency and the Pension Plan”, guest lecturer with Kathy Mah, Osgoode
Hall Law School, LL.M. in Trust Law course in Pension Trusts, June 2009
> “Pension Funding Relief in the Economic Crisis: How Do You Spell Relief”, Ontario Bar
Association January 2009
> “DC Plan Primer”, Canadian Pensions and Benefits Institute, November 2008
> “Pension Reform”, 12 Annual Essential Skills for Pension Committee Members
Conference, Federated Press, November 2008
th
> “Costs in Pension Plan Litigation:
Association, September 2008
The Good, the Bad and the Ugly”, Ontario Bar
Education
Queen’s University (LL.B. 2002), Queen’s University (B.Comm. 1999).
Bar Admission
Ontario, 2003.
2013 UPDATE
PRESENTATION SLIDES
JUNE 13, 2013
Case law update
Pensions and Benefits
2013 Update
1
www.stikeman.com
Legislative and Regulatory Update
Luc Vaillancourt
Associate
Stikeman Elliott
Overview
 Pension reform in Ontario that:
– has come into force in the past year;
– is likely coming in 2013/2014.
 Pension reform in other jurisdictions.
SLIDE 2
Ontario - Grow-in Benefits
 Since July 1, 2012, grow-in benefits are available to members
with at least 55 points who are involuntarily terminated.
 Termination of employment does not entitle a member to
grow-in benefits if the termination “is a result of willful
misconduct, disobedience or willful neglect of duty by the
member that is not trivial and has not been condoned by the
employer or if the termination occurs in such other
circumstances as may be prescribed.”
SLIDE 3
Ontario – Issues Related to Grow-in Benefits
 Some issues to consider:
– What is the “effective date of termination”?
– What are a selling employer’s obligations in situations where an
employee receives an offer of employment from a purchaser?
– Must the selling employer raise the issue for consideration by the
employee?
SLIDE 4
Ontario – Other changes to the PBA in 2012
 On July 1, 2012, other changes to the PBA came into force
including:
– Immediate vesting of benefits (however it is still possible to have a
2 year waiting period for eligibility).
– Higher threshold for small benefit unlocking, the new provision
provides for a lump-sum payment of the small pension if either
 (a) the annual benefit payable at the normal retirement date is not
more than 4 percent of the YMPE in the year of termination of
employment; or
 (b) the commuted value of the benefit is less than 20 percent of the
YMPE in the year of termination of employment.
SLIDE 5
Ontario – Changes to the PBA in 2013
 Effective January 1, 2013, it is possible to use letters of credit
(“LOC”) for solvency funding under certain conditions,
including:
– May not exceed 15% of solvency liabilities.
– Must be irrevocable and unconditional standby LOC.
– Must be payable to the pension fund trustee on demand, in trust,
for the pension fund.
– Must have an effective date that is on or before the date the first
special payment is due and an expiry date no later than 1 year
after the effective date.
SLIDE 6
Ontario – Family Law Forms
 FSCO updated the family law forms originally published in
2012, effective January 1, 2013 (2013 Forms).
– Individuals must use the 2013 Forms immediately when
communicating with the plan administrator (forms 1, 2,3 5, 6 and
7).
– Plan administrators have until June 30, 2013 to start using the
2013 Forms (forms 4A, 4B, 4C, 4D, 4E and 1A).
SLIDE 7
Ontario – Changes Yet to Come
 Restrictions for amendments authorizing benefit improvements
if solvency ratio falls below a prescribed level.
 Advance notice of all plan amendments.
 New asset transfer rules.
 Annual statements to former and retired members.
 Possibility of variable benefits from DC plan.
 Requirement to file SIP&P.
SLIDE 8
Federal – 2012 OSFI Publications
 In 2012, OSFI published:
– The “Buy-in Annuity Products” policy advisory that sets out OSFI’s
expectations regarding investments by pension plans in buy-in
annuity products.
– Revision to the “Authorization of Amendments Reducing Benefits
in Defined Benefit Pension Plans” that sets out factors and
requirements that OSFI considers when making its decision
whether to authorize a “Reducing Amendment”.
SLIDE 9
Federal – 2012 OSFI Publications (continued)
 When OFSI considers a Reducing Amendment, it will take into
account factors that include:
– Compliance with the authority in the pension plan text and any
supporting documents;
– Purpose and rationale for the Reducing Amendment and other
alternatives considered;
– Long-term viability of the pension plan with and without the
reducing Amendment;
– Appropriate notice was provided to members, former members
and other beneficiaries;
– Any written representations received by OSFI from members,
former members and other beneficiaries.
SLIDE 10
Federal – Changes Yet to Come
 Responsibilities of the administrator clarified with respect to
DC investment options.
 Variable benefits may be paid from a DC plan.
 Annual statements to former members.
 Authority to designate an entity to hold pension benefits for
persons who cannot be located.
 Electronic communications.
SLIDE 11
Pooled Registered Pension Plans (“PRPPs”)
 In December 2012, PRPPs came into force at the federal level.
 PRPPs are large scale and low-cost DC plans, not requiring
employer contributions or oversight.
 Other jurisdictions have introduced draft legislation related to
PRPPs:
– Alberta
– Quebec
– Saskatchewan
– British Columbia
 Had draft legislation prior to the election which we expect will be
reintroduced.
SLIDE 12
Pooled Registered Pension Plans (continued)
 Proposed Quebec legislation would require certain employers
to offer PRPPs:
– with more than 5 employees; and
– with no RPP or no RRSP or TFSA providing for payroll deductions.
 Employees would be allowed to opt-out.
SLIDE 13
New Brunswick Pension Reform
 New Brunswick introduced Shared Risk Plans in 2012 (“SRPs”).
 Base benefits are based on a target and may be reduced,
ancillary benefits depend on there being sufficient funds in the
plan.
 Conversion of past DB service to a SRP is possible.
 Annual stress testing must support at least a 97.5% probability
that past base benefits will not be reduced over a twenty year
period.
SLIDE 14
Quebec Pension Reform
 On April 17th, 2013, the report of the expert committee created
by the Quebec Government to make recommendations with
respect to the Quebec pension reform was published.
 Consultations on the report by a committee of the Quebec
National Assembly began on June 10, 2013.
 The recommendations of the expert committee include the
creation of a “longevity pension” to which employers and
employees will each contribute 1.65% of earnings.
SLIDE 15
Quebec Pension Reform (continued)
 With respect to DB plans, the expert committee’s
recommendations include:
– Changes the funding rules to a single valuation method for
funding ongoing DB plans, called the “enhanced funding method”;
– Requirement to have a funding policy;
– One time “Restructuring Period” of five years during which plan
sponsors and beneficiaries may “restructure” pension benefits by
reducing ancillary benefits (including vested ancillary benefits)
under certain conditions.
SLIDE 16
Pension Reform in Other Jurisdictions
 Pension reform is also in progress in the following jurisdictions:
– Alberta
– British Columbia
– Nova Scotia
– Prince Edward Island
SLIDE 17
2
Case Law Update
Lyle Teichman
Counsel
Stikeman Elliott
SURPLUS
 Kidd v. The Canada Life Assurance Company, 2013 ONSC 1868:
– Partial windup of CL pension plan declared in 2003 for employees
who terminated as part of the GWL integration
– “Integration Group” commenced class action to determine surplus
entitlement on pwu
– Action was settled:
 Approximately 70% of surplus to be shared with Integration Group
and others (estimated share $55m)
 CL would “restart” its pension plan under a new trust (“Ongoing
Plan”)
 Class counsel would receive approx. $5m in fees
SLIDE 19
SURPLUS
– Following court approval, surplus diminished significantly due to
falling interest rates and other factors
– Amended settlement:
 CL to fund approx. $1.2m in top-up payments
 CL waived reimbursement of approx. $1.3m in professional
fees/expenses
 Assets/liabilities of Integration Group who elected pensions would be
transferred to Ongoing Plan (notionally segregated)
 Possibility of second surplus distribution, subject to 10%
cushion/$15m cap
SLIDE 20
SURPLUS
– Ont SCJ:
 Court in a “double bind”
 Court rejected the amended settlement on basis that the potential
gains were unbalanced in favour of CL
– Implications:
 No obvious winners
 If parties to a surplus sharing deal are unable to implement the
original deal due to greatly diminished surplus, the court will
scrutinize any subsequent deal to ensure all parties, including counsel
if necessary, share in the disappointment
SLIDE 21
SUCCESSOR PENSION PLANS
 Ontario Pension Board v. Ratansi, 2013 ONSC 1092
– Employees of Ontario Ministry of Revenue whose jobs were
transferred to CRA with implementation of HST
– Ceased active membership in Ontario PSPP and joined federal
PSPP
– Respondents sought to commence unreduced pensions upon
leaving the Ont public service
– Ontario Pension Board denied request, citing Pension Benefits Act
s.80
– FST – held that s.80(3) did not prevent the former employees
from voluntarily withdrawing from the plan to commence an
immediate pension
SLIDE 22
SUCCESSOR PENSION PLANS
– Ont SCJ:
 Employees could not receive an immediate pension from the
predecessor plan when they are members of a successor plan
 Strongly worded decision – court critical of FST for inconsistency with
its own prior decisions
– Implications:
 Decision restores the law to where most practitioners thought it was
before the FST decision
 Employees didn’t lose their jobs, so they shouldn’t be able to
commence their pensions
SLIDE 23
RECTIFICATION
 Re Amcor Packaging Canada, Inc., 2012 ONSC 6168
– Amcor amended its Hourly Plan effective 1/1/05 to close DB and
add new DC provision
– The 2005 Hourly Plan inadvertently provided for an increase in
benefits on early retirement to members who terminated before
age 55
– Plan was always administered consistent with the intention that
no benefit increase be conferred
– Employee booklets/statements/education sessions/valuation
reports were consistent
– Amcor applied to court for rectification
SLIDE 24
RECTIFICATION
– Ont SCJ:
 Rectification is an equitable remedy, available only where the parties
can demonstrate with clear and convincing proof that, by mistake, the
written document does not accord with the intentions of the parties
 Rectification cannot be used to vary the intentions of the parties
 Court found there was convincing proof that the benefit increase was
an unintended mistake
– Implications:
 retain clear records of discussions/emails regarding purpose of
amendments
SLIDE 25
PRE-RETIREMENT DEATH BENEFITS
 Carrigan v. Carrigan Estate, 2012 ONCA 736
– Mr. and Mrs. C married in 1973
– Subsequently separated but never divorced
– Mr. C died in 2008 – he was in a common law relationship with Q
at time of death
– In 2002, Mr. C designated Mrs. C (and daughters) as beneficiaries
under the pension plan
– Mrs. C and Q both claimed entitlement to the pre-retirement
death benefit
SLIDE 26
– Trial court:
 Mrs. C not entitled as they were living separate and apart and Q was
spouse at his death
– OCA:
 “spouse” in s. 48(3) must refer to the legally married spouse as
common law spouses cannot live separate and apart and still be
considered a “spouse”
 Mrs. C (and daughters) therefore entitled to pre-retirement death
benefit as a designated beneficiary
– SCC:
 Refused leave to appeal in Mar/13
SLIDE 27
– Implications:
 FSCO position – decision only applies to pre-retirement death
benefits/not retroactive
 But would a court agree?
 Legislative amendment is anticipated-stay tuned
 Review admin procedures on pre-retirement death to ensure no
potential for claim by married spouse
SLIDE 28
Post-Retirement Benefits
 Lacey v. Weyerhaeuser Company Ltd. 2013 BCCA 252
– MacMillan Bloedel est’d post-ret extended health plan in 1973
(MB acquired by W In 1999)
– Plan introduced gratuitously
– Some communication materials contained “reservation of rights”
language
– 2009 – W informed retired MB employees that contributions to
the plan would be frozen at 50% of costs as at 1/1/10 and future
cost increases would be borne by retirees
– Retirees claimed the benefit was a contractual right and was
vested
SLIDE 29
Post-Retirement Benefits
– BCCA:
 Although plan initially introduced gratuitously, subsequent
communications indicated it became part of compensation
 Promise to provide retiree medical benefits at company cost became
contractual
 By remaining with MB to retirement, each employee accepted MB’s
offer and it became binding and enforceable
 W could not unilaterally change benefits after retirement
– Implications
 Review communication practices to ensure “reservation of rights” is
preserved after retirement and avoid language which suggests postretirement benefits form part of compensation
SLIDE 30
EXECUTIVE COMPENSATION
i.
Deduction of stock option grant
 Transalta Corporation v. Regina, 2012 TCC 86
– Transalta maintained “Performance Share Ownership Plan”
– Each year, Transalta informed employees whether they were
selected for participation in PSOP and eligible to receive a bonus
at the end of the 3-year term
– At end of each term, Transalta determined, in its sole discretion,
whether award is paid in cash or treasury shares
– Transalta settled awards by treasury shares and deducted the
FMV of the shares
SLIDE 31
– TCC:
 “Agreement” in Income Tax Act section 7(3) means a legally binding
agreement to issue shares
 PSOP was explicitly discretionary and did not create enforceable right
to receive shares
 Tax deduction allowed
– Implications:
 CRA did not appeal
 Will Income Tax Act be amended?
 In meantime, review stock option plans with discretionary provisions
to determine appropriate tax treatment
SLIDE 32
ii. Tax Equalization Policy
 Ivandic v. Scotiabank, 2012 ONSC 5040
– ex-patriate executive retired in Peru after working bank in
different countries
– After retiring, he received payments under deferred comp
programs (SARs, RSUs, PSUs, DSUs)
– Bank had a “Hypo-tax” policy – payments withheld from
employment income as if he was tax resident in Canada
– Ivandic objected to “Hypo-tax” on payments made after
employment ceased
SLIDE 33
– Ont SCJ
 Source of the payments, not status of recipient, is important
 The source of the deferred compensation was employment with
Scotiabank
 Ivandic was contractually bound to “Hypo-tax” on his salary and
deferred compensation payments
– Implications:
 Appeal to OCA was dismissed April 2014
 Shows importance of clear documentation and communication to
support application of tax equalization policies to payments made
post-employment
SLIDE 34
CASES TO WATCH
 Dell’Aniello v. Vivendi Canada Inc. – post-retirement benefits
 Waterman v. IBM Canada Limited – whether pension benefits
are deductible from wrongful dismissal damages
SLIDE 35
3
Focus on Indalex Decision –
What plan sponsors need to know
Andrea Boctor
Partner
Stikeman Elliott
Indalex: What plan sponsors need to know
1. Brief summary of Indalex decision
2. Implications:
– Fiduciary duty
– Financing
SLIDE 37
Summary of Decision
 Complex SCC decision touching on insolvency law, principles of
federal paramountcy, and pension law
– Released February 1, 2013
– Commentary in the decision about a plan sponsor/administrator’s
fiduciary duties
– Giving heartburn to commercial lenders, and in particular asset
based lenders and has made credit tight/expensive for sponsors of
Ontario DB pension plans
– Many open issues to be litigated (and re-litigated)
SLIDE 38
Summary of Decision (Continued)
The SCC dealt with four issues under appeal:
1. Does the deemed trust provided under the PBA apply to wind up deficiencies?
• Deemed trust does apply to the wind up deficiency of a pension plan that has been wound
up (Salaried Plan in this instance)
• Deemed trust does not apply to the wind up deficiency of a pension plan that has not been
wound up (Executive Plan in this instance)
• Priority of deemed trust is restricted to company’s inventory and accounts and proceeds
thereof, as outlined in section 30(7) of the PPSA
2. If so, does the deemed trust supersede the DIP charge?
• Applying the doctrine of federal paramountcy, the DIP charge granted under the CCAA had
superpriority over the deemed trust
SLIDE 39
Summary of Decision (Continued)
3. Did Indalex have any fiduciary obligations to the Plan Members when making
decisions in the context of the insolvency proceedings?
• Court found that Indalex, as employer-administrator under its pension plans, did owe
fiduciary duties and held that Indalex had breached those duties during the course of the
CCAA Proceedings
• SCC disagreed with the Court of Appeal as to what constituted a breach and applied a more
restrictive approach than had been suggested by the Court of Appeal
4. Did the Court of Appeal properly exercise its discretion in imposing a constructive
trust to remedy the breaches of fiduciary duties?
• SCC held that constructive trust was not the appropriate remedy given the nature of the
breaches
SLIDE 40
Summary of Key Issues – SCC Split
Statutory Deemed
Trust (4-3)
Fiduciary Duty (7-0)
Constructive Trust
Remedy for Fiduciary
Breach (5-2)
Priority of DIP Charge
(7-0)
Deschamps J.
Moldaver J.
Deemed trust for windup deficiencies of
wound up plan
Constructive trust not
appropriate remedy
DIP Charge has priority
over deemed trust
Cromwell J.
McLachlin C.J.
Rothstein J.
No deemed trust for
wind-up deficiencies of
wound up plan
appropriate remedy
over deemed trust
Lebel J.
Abella J.
Deemed trust for windup deficiencies of
wound up plan
Application for
approval of DIP
without prior notice
and representation for
plan beneficiaries is a
breach of fiduciary
duty
Application for
approval of DIP
without prior notice
breach of fiduciary
duty
Breach of fiduciary
duty from the moment
employeradministrator
considered seeking
CCAA protection
Constructive trust
imposed
over deemed trust
SLIDE 41
Implications – Fiduciary Duty
 Unanimous decision that Indalex breached its fiduciary duty to
plan members
 Majority decision that the breach was Indalex’s failure to
address conflicts of interest inherent in seeking approval for a
DIP loan that would have made it impossible for further funds
to be directed to the pension plans
 Slightly different reasons from each set of judges as to why
there was a breach of fiduciary duty and what could/should
have been done to avoid the breach
 “Two-hats” doctrine criticized
SLIDE 42
Fiduciary Duty (Continued)
 Dissecting the decision:
– What are the sources of fiduciary duty?
– How are conflicts of interest identified?
– How should conflicts of interest be resolved?
 Principle going forward
– Is “two-hats” doctrine still valid?
– How to address conflicts of interest?
SLIDE 43
 What are the sources of fiduciary duty?
Cromwell
Deschamps
Nature and scope of fiduciary duty must be
assessed in the legal framework governing the
relationship out of which the fiduciary duty arises
Administrator has fiduciary obligations to plan
members both at common law and under statute
Framework is established primarily by the plan
documents and the relevant provisions of the PBA
Must consider the consequences of a decision,
not its nature
Employer/administrator’s duties to represent plan
beneficiaries extend to those “specific legal
interests” identified in the PBA and plan
documents
SLIDE 44
 How are conflicts of interest identified?
Cromwell
?
Deschamps
Conflicts inherent in the two roles being performed by the same party cannot be When the interests the employer
a breach of fiduciary duty because those conflicts are specifically authorized by seeks to advance on behalf of the
the statute which permits one party to play both roles
corporation conflict with interests
the employer has a duty to
The broader business interests of the employer corporation and the interests of preserve as plan administrator, a
pension beneficiaries in getting the promised benefits are almost always at least solution must be found to ensure
potentially in conflict. Every important business decision has the potential to put that plan members’ interests are
at risk the solvency of the corporation and therefore its ability to live up to its
taken care of
pension obligations
Conflict of interest occurs when there is a substantial risk that the employeradministrator’s representation of the plan beneficiaries would be materially and
adversely affected by the employer-administrator’s duties to the corporation,
not simply where business decisions have “the potential to affect the Plans
beneficiaries’ rights”
SLIDE 45
 How should conflicts of interest be resolved?
Cromwell
Deschamps
Indalex’s decision to act as an employer-administrator cannot give the plan
beneficiaries any greater benefit than they would have if their plan was managed by
a third party administrator. Had there been a third party administrator in this case,
Indalex would not have been under an obligation to tell the administrator that it was
planning to enter CCAA proceedings. The respondents are asking this Court to give
the advantage of Indalex’s knowledge as employer to Indalex as the plan
administrator in circumstances where the employer would have been unlikely to
disclose the information itself. I am not prepared to blur the line between employers
and administrators in this way.
Agrees
So in my view, the difficulty that arose here was not the existence of the conflict
itself, but Indalex’s failure to take steps so that plan beneficiaries would have their
interests protected as if the plans were administered by an independent
administrator.
SLIDE 46
Principles going forward
 Two-hats is still useful in order to determine if a function is an
“employer” function or an “administrator” function
 If the function (per Cromwell) or consequence (per Deschamps)
is either purely employer or administrator related, there should
be no conflict and the duty owed should be clear
– Eg: Plan design changes vs. investing plan assets
 Must recognize that sometimes a function will attract both
employer and administrator duties
– Eg: remitting contributions, taking advantage of optional funding
relief (?)
SLIDE 47
Principles going forward (Continued)
 Where an employer/administrator has duties to both the
corporation and plan members, plan members should be put in
no worse a position than they would have been in had an
independent party been the plan administrator
– From a procedural and substantive perspective
 Eg: notification of a change in employer policy (a consent benefit or
indexation policy for example)
– Grey areas
 Electing optional funding relief
 Financing
SLIDE 48
Implications: Financing
 SCC determined that deemed trust had a priority in a CCAA
proceeding and, in Ontario, a “super-priority” under s.30(7) of
the PPSA over “accounts and inventory”
 Decision has created perceived risk that secured lenders will
not be paid out ahead of a pension deficit in an insolvency
 Commercial lenders have been re-evaluating lending practices
to companies that sponsor DB pension plans, in particular with
respect to asset based lending
SLIDE 49
Financing (Continued)
 Credit has been tight for some plan sponsors
– Higher rates of interest
– Large reserves (up to the full amount of the deficit) reducing
amount that can be borrowed
– Or both
 Sponsors of Ontario DB pension plans hardest hit
 All lenders are not taking the same view of the decision and the
risk posed by it with respect to DB pension plans
SLIDE 50
 Details of the decision are important:
– Risk to lenders is increased where (i) the is an Ontario DB pension
plan (due to s.30(7) of the Ontario PPSA) or (ii) a DB pension plan
is already wound-up when loan is made (due to common law
priority rules)
– Existence of a wound-up plan is question of fact
– Only the Ontario PPSA (and to a limited extent Alberta EPPA) has
s.30(7)
– Does s.30(7) apply to the plan sponsor?
 If chief executive office is not in Ontario, only to the extent of
inventory located in Ontario
SLIDE 51
 Strategies have emerged to deal with perceived risk:
– Plan sponsor entity excluded from borrowing base (extreme,
rarely possible)
– Reserves for full deficit at discretion of lender (common)
– Bank Act security (often but not always available)
– Increased lender monitoring of deficit with reserves for deficit
triggered where plan wind-up occurs or is likely to occur (middleground, increasingly common)
SLIDE 52
Take-Aways
 When refinancing, expect lenders to ask a detailed questions
about any DB pension plan
 Expect to provide actuarial valuations, and other periodic
reporting to lenders during term of the loan
 Work with advisors to determine if strategies are available to
minimize the lender’s perceived risk
SLIDE 53
Questions and Answers
Bruce Pollock
[email protected]
Luc Vaillancourt
[email protected]
Lyle Teichman
[email protected]
Andrea Boctor
[email protected]
2013 UPDATE
RESOURCES
Articles
JUNE 13, 2013
Employer’s tax equalization policy for international employees continues
past retirement, Lyle Teichman, May 10, 2013,
Surplus Sharing Arrangement goes sour after Meilleur Avant date,
Lyle Teichman, May 08, 2013, www.CanadianEmploymentPensionLaw.com
Tax Court of Canada permits employer deduction of fair market value of
stock grant, Carla Hanneman and Lyle Teichman, December 07, 2012,
Case Summary
“Re INDALEX in the Supreme Court of Canada”, Andrea Boctor et al,
Stikeman Elliott, February 2013
Employer's tax equalization policy for international
employees continues past retirement
Posted on May 10, 2013
Lyle Teichman
In a recent decision, the Ontario Superior Court of Justice (Court) held that deferred compensation amounts
paid to a retired executive employee were properly characterized as employment income and subject to the
employer’s tax equalization policy (Hypo-tax Policy), even though the recipient was no longer an employee.
(An appeal from the decision of the Court was dismissed by the Ontario Court of Appeal in April 2012.) Under
the Hypo-tax Policy, the employer reduced the remuneration paid to eligible expatriate employees to reflect
the taxes that would have been payable if the employee were a Canadian resident during the year. This case
provides support to employers that maintain tax equalization policies for expatriate employees and continue
to apply the policy to payments of deferred compensation made after the employment ceases.
In Louis Ivandic v Scotiabank, the former employee (Mr. Ivandic) was a retired banker. He commenced
employment with Scotiabank in Canada in 1983 and in 1989 he assumed the role of the bank’s senior
representative in Brazil. He became a non-resident of Canada in 1990. He then assumed senior roles with
Scotiabank in different countries in Latin America eventually retiring from Scotiabank in 1990 in Peru. From
the time of his departure from Canada, the bank subjected his salary to its Hypo-tax Policy, which was a
mandatory term of the employment contract with Scotiabank’s senior expatriate employees. Under the policy,
an expatriate employee’s remuneration is reduced in accordance with what would have been the taxes payable
if the employee had remained a tax resident of Canada during the period in question. The bank then pays the
employee’s actual tax obligation in the country in which the employee is assigned in accordance with the tax
laws of that country. The Hypo-tax Policy is intended to equalize the taxes payable by expatriate employees
relative to the taxes that would have been payable if he/she remained a Canadian resident, and to make
foreign assignments with the bank monetarily neutral in the countries where the bank operates. The Hypo-tax
Policy effectively eliminates any income tax benefits or barriers that might come into play in an expatriate
employee’s decision to accept an international posting. The Hypo-tax was calculated annually by Ernst &
Young.
In a 2006 letter setting out the terms of his assignment in Peru, Scotiabank advised Ivandic that the Hypo-tax
Policy would be applied to his base salary, bonus and any stock-based compensation. Following his retirement
in 2010, the bank continued to levy hypo-tax on all payments made to him (other than pension payments).
Hypo-tax was therefore withheld from payments made after retirement under four deferred compensation
programs in which he participated while a senior employee: stock appreciation rights (SARs), restricted share
units (RSUs), performance share units (PSUs) and deferred share units (DSUs). From his retirement in May
2010 to July 2011, the bank withheld almost $900,000 in hypo-tax.
Mr. Ivandic claimed the hypo-tax policy did not apply to payments made to him by the bank after retirement,
and that it would be unfair to apply the hypo-tax regime to his deferred compensation payments after he had
retired from the bank. He asserted that that his contract of employment did not provide for payments made
after retirement to be subjected to the Hypo-tax Policy, and that it breached his privacy rights for the bank to
be privy to his personal retirement income circumstances after he ceased to be an employee for the purposes
of calculating the hypo-tax.
STIKEMAN ELLIOTT LLP │ MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY
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The Court held, on an application for summary judgment, that the post-retirement deferred compensation
payments received by Ivandic had their source in his prior employment with Scotiabank, and under Canadian
tax law the deferred compensation amounts are properly characterized as employment income,
notwithstanding that he is now retired from the bank. Under the Income Tax Act (Canada), it is the source of
the payment, not the status of the recipent, that determines the characterization of the payment for tax
purposes, and employment income amounts paid after the employment has ended continue to maintain their
character. The Court further found that that Ivandic was contractually bound to the Hypo-tax Policy on his
salary and deferred compensation payments as a condition of his employment as an expatriate executive
employee. As a result, the Court held that the payments under the four stock-based deferred compensation
plans retain their character as employment income and as such are subject to hypo-tax under his contract of
employment.
In obiter comments, the Court noted that the application of the bank’s Hypo-tax Policy does not violate the
employee’s privacy rights as the tax returns are prepared by a professional accounting firm on a confidential
basis and the accounting firm only informs the bank of the amounts it is required to pay as tax to the country of
residence and the amount of hypo-tax required to be withheld.
Comments
This case shows the importance of clear documentation and communication to support the application of tax
equalization policies to amounts paid after the employment relationship has ended. Where it can be
demonstrated that the tax equalization policy is a condition of employment, the court will support the
application of tax equalization policies to employment-sourced payments made after retirement or
termination of employment. This case is also interesting in that the Court was not influenced in its analysis by
the fact that the bank could (and in the case of Mr Ivandic did) receive a cash windfall on the application of the
Hypo-tax Policy.
For further information, please contact your Stikeman Elliott representative, any author that may be listed above or any of our lawyers listed
at www.stikeman.com. This article provides general commentary only and is not intended as legal advice. © Stikeman Elliott LLP
Surplus Sharing Arrangement goes sour after
Meilleur Avant date
Posted on May 08, 2013
Lyle Teichman
A recent decision of the Ontario Superior Court (Court) illustrates complexities that can arise where a pension
plan is partially wound up, triggering a requirement to settle surplus entitlements on the partial wind-up, and
the surplus subsequently vanishes.
In Kidd v. The Canada Life Assurance Company et al, Canada Life had declared a partial wind-up of the Canada
Life Canadian Pension Plan (Plan) in 2003 in relation to members who were terminated or retired as a result of
the integration of Canada Life and Great West Life Assurance Company (the Integration Group). The
Integration Group had commenced a class to determine, amongst other issues, the ownership of surplus on a
partial windup of the Plan. The parties settled the action and under the terms of settlement Canada Life agreed
to distribute approximately 70% of the estimated partial wind-up surplus to, amongst others, the Integration
Group. The Integration Group members were informed that their estimated share of the surplus was worth
approximately $55 million. As part of the settlement, Canada Life would in effect restart its pension plan under
a new trust (the Ongoing Plan), which would receive the assets from the wound-up portion of the Plan. The
plaintiffs in the class action and Canada Life successfully campaigned to secure the support of the class
members for the proposed settlement and the settlement was ultimately approved by the court (the Approved
Settlement). Class counsel was to receive approximately $5 million in fees and disbursements under the
Approved Settlement.
After the Approved Settlement received court approval, the partial wind-up surplus diminished significantly
due to falling interest rates and a greater than anticipated number of partial wind-up members who chose (or
were deemed to have chosen) an annuity. As a further complication, the annuity market in Canada had
effectively shut down and annuities were not available to be purchased. By August 31, 2012, the partial windup surplus was $2.6 million (i.e., Integration Group’s share was $1.8 million).
As a result of the changed circumstances, the parties commenced discussions aimed at amending the Approved
Settlement. Also, as Canada Life was unable to solicit bids for annuities on the partial wind-up, it proposed to
unilaterally transfer the assets and liabilities of the Integration Group to the Ongoing Plan and proceed with
the implementation of the Approved Settlement. The Integration Group objected to this unilateral action. The
parties ultimately entered into court-facilitated mediation and agreed to amended terms of settlement (the
Amended Settlement) under which:
•
•
•
Canada Life would fund top-up payments (at a cost of approx. $1.2 million) to ensure promised
minimum surplus payments of $1,000 could be made;
Canada Life waived its right to receive a reimbursement of professional fees and interest on a
reimbursement of expenses (estimated value $1.3 million);
The plaintiffs (and certain other members) waived their entitlement to reimbursement of future legal
fees previously approved by the court (estimated at $200,000); and
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•
The assets and liabilities for Integration Group members who elected to receive deferred or immediate
pensions would be transferred to the Ongoing Plan. The assets and liabilities would be notionally
segregated and if a surplus for the notionally segregated group exists as at December 31, 2014, there
would be a second distribution to the Integration Group subject to certain conditions, including:


10% of the 2014 surplus would be deducted from the distribution amount and remain in
the Ongoing Plan; and
The potential second distribution to eligible Members would be capped at $15 million.
The Court was asked to approve the Amended Settlement. The essential question before the Court was
whether the Amended Settlement was fair, reasonable and in the best interest of those affected by it. The
Integration Group and Canada Life argued that the Amended Settlement met the test of fairness as the
members of the Plan on the partial wind-up would receive more than they would have received under the
terms of the Approved Settlement if it was implemented with the reduced surplus. In addition, they had the
prospect of receiving additional amounts if the surplus position of the segregated portion of the Ongoing Plan
rebounded by the end of 2014. A group of class members objected to the Amended Settlement essentially on
the basis that Canada Life stood to gain disproportionately to the class members.
The Court held that the Amended Settlement did not meet the tests of fairness for several reasons, including:
•
•
•
•
•
It felt that a 70%/30% surplus split was not fair to the partial wind-up members in view of the
diminished amount of surplus, particularly in circumstances where Canada Life stood to receive
certain advantages under the Ongoing Plan (i.e., the right to claim 100% of any future surplus). Also,
Canada Life would be in a position to economically recover the lost surplus if the surplus conditions
right themselves.
The $15 million cap on the potential second surplus distribution unduly favoured Canada Life.
Since Canada Life had mounted a cross-country campaign to seek member approval of the Approved
Settlement, the Court felt it had a “moral duty” to fully share in the disappointment over the
circumstances of the Approved Settlement. In short, the Court felt that Canada Life was not sharing
enough of the pain.
The Court felt that a December 31, 2014 re-calculation date to reassess the surplus position of the
segregated assets/liabilities in the Ongoing Plan was too early to allow economic conditions to
rebound, and a December 31, 2017 date would be a fairer date.
Class counsel received substantial amounts under the Approved Settlement and did not share
adequately in the pain under the Amended Settlement.
Commentary
The court recognized it was in a “double bind” – it could either approve the Amended Settlement (which
entailed a greatly reduced award of surplus to partial wind-up members but was monetarily greater that the
amounts that would be available for distribution if it was rejected) or reject the Amended Settlement and force
the parties to resume costly and protracted litigation over the greatly diminished surplus. Nevertheless, the
court rejected the court-facilitated Amended Settlement as it felt the potential gains were unbalanced in favour
of Canada Life.
This is an unfortunate case with no obvious winners in the outcome. This decision demonstrates that where
parties to a surplus sharing arrangement are unable to implement the terms of the original arrangement due to
greatly diminished surplus, the court will scrutinize the terms of any subsequent deal to ensure all parties
(including counsel if necessary) share adequately in the pain and disappointment.
Tax Court of Canada permits employer deduction of fair
market value of stock grant
Posted on Dec 07, 2012
Carla Hanneman and Lyle Teichman
Equity-based incentive plans have in recent years become a common component of the compensation package
for executive employees in Canada. Employers often design the plans in such a way as to enable the employer
to claim a tax deduction for the value of the equity-based compensation. In the case of treasury shares issued
under stock bonus plans, the Canada Revenue Agency (CRA) has historically taken the position that the value
of treasury shares issued under such plans is not deductible by the employer for tax purposes. However, a
recent decision of the Tax Court of Canada allowed the employer to deduct the fair market value of treasury
shares issued to executive employees under a discretionary stock bonus program.
Section 7 of the Income Tax Act (Canada) (Act) governs the taxation of stock option plans. Subsection 7(3) of
the Act denies the deduction of the value of treasury shares issued under such plans where a corporation “has
agreed” to sell or issue securities to an employee. The subsection also applies to ensure an employee is not
considered to have received a taxable benefit under any other provision of the Act because of the “agreement”.
This subsection has often been used by the CRA to deny the deduction of the value of treasury shares issued
under stock bonus plans.
However, in Transalta Corporation v. R, the Tax Court of Canada ruled that Transalta could claim a deduction
for the fair market value of the shares it issued to employees under its ‘Performance Share Ownership Plan’. In
brief, each year employees were informed whether they had been selected by the Human Resources
Committee for participation in the plan and were eligible receive a bonus at the end of the award’s 3-year term.
At the end of the term Transalta would determine, in its sole discretion, whether and to what extent the award
would be paid in cash or by the issuance of treasury shares. In each taxation year under appeal Transalta
increased its stated capital account by an amount equal to the fair market value of the shares issued under the
plan on the basis that the shares were issued for past service, and claimed a corresponding deduction for those
amounts.
The key to the Court’s decision is its interpretation of the words “agreement” and “agree” in subsection 7(3) of
the Act as requiring a legally binding agreement to issue shares. The Court found that the plan was explicitly
discretionary and did not create legally binding rights or enforceable obligations, prior to the delivery of the
shares, to receive an award. It therefore concluded that the plan was not caught by section 7, and the
deductions were therefore not denied by subsection 7(3).
Next Steps
The CRA did not appeal the Court’s decision and it remains to be seen whether an amendment to the Act will
be pursued. Although the CRA has previously expressed the view that no expenses would be deductible
(whether in the form of a sale or issuance of shares) with respect to any form of stock option or stock purchase
plan as a result of the application of section 7 (see, e.g. ACC-9596), it may see the proposed addition of section
143.3 as being sufficient. Proposed section 143.3 acts to deny the characterization of the cost of granting of an
option or issuing shares as an expenditure in certain circumstance, including those where no binding
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agreement to do so exists. Interestingly, however, that provision would not have applied to reduce the
deductions taken in this case.
Employers that provide equity-based incentive plans that issue treasury shares on a discretionary basis may
wish to review their plans with their advisors to determine the appropriate tax treatment.
RE INDALEX IN THE
SUPREME COURT OF CANADA
FEBRUARY 2013
For further information,
please contact your
Stikeman Elliott lawyer, any
of the authors listed below
from our Toronto Groups or
any office contact listed on
the back page.
INSOLVENCY &
RESTRUCTURING
Elizabeth Pillon
Co-Head of Insolvency &
Restructuring Group
[email protected]
Ashley Taylor
Co-Head of Insolvency &
Restructuring Group
[email protected]
LITIGATION
David Byers
Head of Litigation Group
[email protected]
BANKING
Daphne MacKenzie
Head of Banking Group
[email protected]
PENSION & BENEFITS
Andrea Boctor
Pension and Benefits Group
[email protected]
The Court of Appeal for Ontario’s (the “OCA”) decision in Re Indalex Ltd.1 was decried by
professionals in pension, banking and insolvency practices. On February 1, 2013, the Supreme
Court of Canada (the “SCC” or the “Court”) overturned the OCA’s decision. The effect of
the SCC’s ruling on a number of issues, including the extent and priority of deemed trusts
created pursuant to the Ontario Pension Benefits Act2 (the “PBA”), the priority of a Courtordered charge granted by the judge supervising the Companies’ Creditors Arrangement Act3
(“CCAA”) proceedings, and the scope of fiduciary duties for insolvent employers acting in the
dual role as pension plan administrator, are far-reaching and will be analyzed and debated by
those pension, banking and insolvency professionals in the years to come.
BACKGROUND
In April 2009, Indalex Limited and certain related entities sought and received protection from their
creditors under the CCAA.4 Shortly after the filing, Indalex sought and received approval of debtor-inpossession (“DIP”) financing and the creation of a super-priority charge in favour of the DIP lenders
(the “DIP Charge”). A sales process was conducted and the company entered into an asset purchase
agreement providing for the sale of Indalex’s operating business. At the motion seeking approval of
the sale and a distribution of proceeds to the DIP lender, pension beneficiaries under two registered
defined benefit pension plans sponsored and administered by Indalex (a salaried employee plan
which had been wound up in 2006 (the “Salaried Plan”) and an executive plan that was closed but
not yet wound up (the “Executive Plan”)) objected to the distribution and asserted that they were
the beneficiaries of a deemed trust over the proceeds which ranked ahead of the DIP Charge.
The CCAA judge found that the deemed trust created under the PBA did not apply to wind-up
deficiencies existing with respect to pension plans and dismissed the pension beneficiaries’ motion.
On appeal, the OCA found that:
a) the PBA deemed trust applies to the wind-up deficiency of wound up pension plans (the
OCA declined to opine as to whether the deemed trust applied to the wind-up deficiency of a
pension plan that had not yet been wound up);
b) the PBA deemed trust enjoys priority over the court-approved DIP Charge;
c) Indalex breached its fiduciary duty to the plans’ beneficiaries by taking actions, including
applying for CCAA protection and seeking approval of the DIP loan and priority charge, which
had the potential to adversely affect the pension plan beneficiaries; and
d) that the appropriate remedy for the breach of fiduciary duty was to impose a constructive trust
over the proceeds of sale in respect of both the Salaried Plan and the Executive Plan which
ranked ahead of the DIP Charge.
The OCA’s decision was appealed to the SCC, which heard the appeal on June 5, 2012.
1
2
3
4
|
MONTRÉAL
2011 ONCA 265.
RSO 1990, c P-8
RSC 1985, c C-36
Indalex’s US parent company and other related entities filed for Chapter 11 bankruptcy protection (Title 11 of Chapter 11
of the United States’ Bankruptcy Code) on March 20, 2009. The proceedings were coordinated between the two courts.
TORONTO
OTTAWA
CALGARY
VANCOUVER
NEW YORK
LONDON
SYDNEY
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THE SUPREME COURT DECISION
In a 3-2-2 decision, the SCC allowed the appeal. A chart detailing
the SCC’s split on each major issue is appended to this summary.
Each issue is discussed below in greater detail.
A. Statutory Deemed Trust for Wind-Up Deficits
All justices agreed that the deemed trust provision contained in
s. 57(4)5 of the PBA does not apply to the wind-up deficit of a
pension plan that has not been wound up (i.e. the Executive Plan
in Indalex’s case).
With respect to wound up pension plans, the majority of the
Court determined that the PBA deemed trust applies to the
wind up deficiency payments contemplated under s. 75(1)(b) of
the PBA. The SCC upheld the OCA’s unprecedented decision to
extend the PBA deemed trust to wind-up deficiencies. Section
75(1)(b) requires an employer to fund the deficiency relating
to Ontario members of a pension plan on the wind up of that
plan, as prescribed. The PBA regulations allow the employer to
pay that amount over the five-year period following the wind up.
Notwithstanding the fact that s. 75(1)(b) payments can fluctuate
over the five-year period following the wind up of a pension plan
(and in fact had with respect to the Salaried Plan), the majority
of the court determined that this estimated amount is subject
to the PBA deemed trust on the effective date of wind up of the
pension plan.
The PBA deemed trust is limited in respect of the assets to which
it applies. Specifically, as discussed in greater detail below,
wind-up deficiencies have a priority charge only over a debtor
company’s accounts and inventory and their proceeds. Other
assets are not subject to the PBA deemed trust.
B. CCAA Charges and Federal Paramountcy
On the issue of priorities, the SCC unanimously agreed that,
regardless of whether a statutory deemed trust existed over
wind-up deficiency amounts, the Constitutional doctrine of
federal paramountcy applied, meaning that the DIP Charge as
authorized by the CCAA trumped the provincial law PBA deemed
trust, overturning the OCA’s ruling on this point.
The SCC did not accept the Appellants’ initial argument that the
PBA deemed trust does not apply in CCAA proceedings because
priorities are ordered pursuant to the provisions of the federal
Bankruptcy and Insolvency Act6 (the “BIA”). The Court commented
that CCAA courts may not read BIA priorities “at will” into CCAA
restructurings, including “liquidating restructurings.” Instead,
subject to a paramountcy issue, the Ontario Personal Property
Security Act7 (the “PPSA”) sets out the priorities scheme, which
states at s. 30(7) that deemed trusts under the PBA trump all
other security holders with a security interest in accounts and
inventory.8 The SCC was not prepared to apply the BIA priorities
scheme in the circumstances of this case.
The Court then turned to the issue of federal paramountcy.
Paramountcy is a question of law which will be invoked when a
federal law and a provincial law (both within the constitutional
competence of each level of government) are incompatible,
either because it is impossible to comply with both laws at
the same time or because applying the provincial law would
frustrate the purpose of the federal law.
The Court acknowledged the potential for conflict between the
PPSA and the CCAA: s. 30(7) of the PPSA provides that PBA
deemed trusts trump all other security interests in accounts
and inventory (and their proceeds), while the CCAA provides
that a CCAA court has the power to grant a charge in favour
of DIP lenders with priority over all other claims, including
deemed trusts.
In the court’s view, while the CCAA judge had not considered
the provincial deemed trust, his reasons for approving the DIP
Charge made it clear that not granting the DIP Charge would
have frustrated the purpose of the CCAA. The DIP Charge granted
priority over provincial deemed trusts and all other security
interests in Indalex’s property. Where compliance with the
PPSA would “necessarily entail defiance” of the DIP Charge, the
provincial statute is inoperative. As compliance with the PPSA
would have frustrated the purpose of the DIP order, the CCAA
prevailed over the PPSA provision and the deemed trust itself.
Although this decision was rendered with respect only to the
priority enjoyed by DIP lenders, it raises the obvious question of
how it applies to the priorities scheme for secured loans entered
into while the debtor is solvent and which remain outstanding
as of the date of a filing under the CCAA. That question was not
squarely before the court.
C. Breach of Fiduciary Duty for EmployerAdministrators in Insolvency and Constructive Trust
Remedy
The SCC determined that Indalex, as the employer-administrator
of both the Salaried Plan and the Executive Plan, had breached
its fiduciary duty to plan members and that the “two-hats”
doctrine that had until now been the lens through which
employers-administrators viewed their competing and
sometimes conflicting roles is not appropriate.9 However, the
breach of fiduciary duty was narrowed considerably from the
OCA’s ruling. Specifically Indalex breached its duty as employeradministrator when it sought approval of the DIP loan and DIP
Charge and approval of the asset sale without taking steps to
ensure that its pension plan beneficiaries had the opportunity
to have their interests effectively represented. Indalex did not
5 Section 57(4) of the PBA states:
Where a pension plan is wound up in whole or in part, an employer who is required to pay contributions to the pension fund shall be deemed to hold in trust for the beneficiaries of the
pension plan an amount of money equal to employer contributions accrued to the date of the wind up but not yet due under the plan or regulations.
6 RSC 1985 c B-3.
7 RSO 1990 c P-10.
8 Section 30(7) of the PPSA also provides that deemed trusts under the Employment Standards Act, RSO 2000 S.O. 2000, c 41 trump security holders under the PPSA.
9 The “two-hats” doctrine essentially allowed employer-administrators to act as either the employer or administrator in performing certain functions with only the latter
role attracting a fiduciary relationship.
2 | STIKEMAN ELLIOTT LLP
breach its fiduciary duties to the pension plan beneficiaries by
considering, seeking or obtaining CCAA protection (or by failing
to give adequate notice of the initial CCAA application), nor did it
breach its duties by making a bankruptcy application.
All justices accepted that in allowing employers to act as
administrators, the statutory scheme sanctions the existence
of conflicts of interest between a corporate employeradministrator’s duties to the corporation, and its duties to plan
members. In doing so, it was also agreed by all justices that the
existence of a conflict itself is not a breach of fiduciary duty.
The majority of the Court agreed that conflicts of interest
will necessarily relate to those duties under the PBA that are
specifically labelled as “administrator” duties. The specific
section engaged in this instance was s. 56 of the PBA which
requires an administrator to ensure that the employer remit all
required contributions to a plan. For Indalex, the conflict was
therefore that it was in the best interests of the corporation to
take steps that would have the effect of limiting contributions
to the plans while at the same time being obligated as the
administrator of the plans to ensure that all such contributions
were made.
STATUTORY DEEMED
TRUST (4-3)
All justices also agreed that Indalex’s fiduciary breach was not
the presence of the conflict of interest itself but failing to address
the conflict. The Court suggested a variety of ways in which
such a conflict could be addressed. Notice could be given to the
CCAA judge (who could appoint an independent administrator
or independent counsel, order that notice be given directly to
pension beneficiaries, and/or limit draws on the DIP loan until
such notice can be given).
With respect to the consequences of the breach of fiduciary duty,
the majority agreed that the outcome of the restructuring would
have been no different had the members been represented by a
third party or been given notice of the DIP approval motion. As
a result, the SCC reversed the decision of the Court of Appeal
and refused to impose a constructive trust over the sales
proceeds in the amount of the deemed trust. As Justice Cromwell
noted, the imposition of a constructive trust was “so grossly
disproportionate to the breach as to be unreasonable.”
In the result, the SCC ordered that the proceeds from the asset
sale should be paid to the DIP lender10 and not the beneficiaries
of the Executive Plan and the Salaried Plan.
FIDUCIARY DUTY (7-0)
CONSTRUCTIVE TRUST
REMEDY FOR FIDUCIARY
BREACH (5-2)
PRIORITY OF DIP
CHARGE (7-0)
DESCHAMPS J.
MOLDAVER J.
Deemed trust for
wound up plan
Application for approval
of DIP without prior notice
breach of fiduciary duty
appropriate remedy
over deemed trust
CROMWELL J.
MCLACHLIN C.J.
ROTHSTEIN J.
No deemed trust for
any pension plan
Application for approval
of DIP without prior notice
breach of fiduciary duty
Constructive trust not an
appropriate remedy
over deemed trust
LEBEL J.
ABELLA J.
Deemed trust for
wound up plan
Breach of fiduciary duty
existed from the moment
employer-administrator
considered seeking CCAA
protection
Constructive trust an
appropriate remedy
over deemed trust
*Bolded text indicates the majority decision.
10Ultimately, and for reasons not relevant to this analysis, Sun Indalex Finance LLC had stepped
into the DIP lenders’ shoes and became the appellant by the time of the SCC hearing.
STIKEMAN ELLIOTT LLP | 3
2013 UPDATE
FIRM PROFILE
An overview of Stikeman Elliott and our Employment, Labour & Pension Group
JUNE 13, 2013
Firm Profile
Stikeman Elliott is one of Canada's leading
business law firms, recognized for top tier
services in each of our core practice areas –
corporate finance, M&A, real estate, corporatecommercial law, banking, structured finance,
tax, insolvency, competition and foreign
investment, employment and business litigation.
We are regularly retained by domestic and
international companies in a wide range of industries including financial services, insurance,
technology, telecommunication, transportation, manufacturing, mining, energy, infrastructure
and retail.
The firm's Canadian offices are leaders in their
respective jurisdictions. The firm has more
lawyers ranked than any other Canadian firm in
the Corporate, M&A and Corporate Finance
categories of legal directories from Chambers
Global, Best Lawyers and Lexpert. Its National
Litigation Group, whose specializations include
class actions, securities litigation, antitrust and
restructurings, has been ranked among the top
business litigation practices in Canada by
Chambers Global, Lexpert and Benchmark.
The firm is also well known for its extensive
regulatory and government relations expertise;
the latter anchored by its office in Ottawa.
We have prominent cross-border expertise, as the first Canadian firm to open offices in
London and New York, and extensive experience in the U.S., Europe, China, South and
Southeast Asia as well as in Latin America, the Caribbean and Africa. Our 500 lawyers
include many of Canada's most prominent business practitioners and litigators, and our
depth across practice areas enables clients to benefit from efficient, expert teams of lawyers
at all levels. The firm has also invested heavily in cutting-edge knowledge management and
project management systems in order to assure our clients of advice of the highest quality.
STIKEMAN ELLIOTT LLP FIRM PROFILE
Recognition for Our Work
#1 Nationally for ranked lawyers in
M&A/Corporate and rated as a Top Tier Firm
#1 Canadian firm in Capital Markets, M&A and
Corporate-Commercial Law with most lawyers
ranked by the 2012 Guide to the Leading 500
Lawyers in Canada
#1 Canadian firm in Capital Markets, M&A and
Corporate-Commercial Law with more lawyers
ranked than any other firm
Ranked Top Tier in Capital Markets, M&A and
Project Finance
Ranked Top Tier in Capital Markets, M&A and
Corporate-Commercial Law
STIKEMAN ELLIOTT LLP FIRM PROFILE
Employment, Labour and Pension Group
Employment & Labour Group
The National Employment & Labour Group at Stikeman Elliott advises employers on all
facets of the individual and collective employment relationship, both at the provincial and
federal level. The members of the group are located at our offices in Montréal (Quebec),
Toronto (Ontario), Calgary (Alberta) and Vancouver (British Columbia). All members of the
group have wide-ranging employment and labour law experience, and each has developed
specific expertise in particular niche areas. This approach ensures that we can provide
advice in a timely, cost-effective and efficient manner by calling upon appropriate, targeted
resources.
The Group is a full-service practice area within the firm. In particular, the Group delivers its
services on a continuing basis to employers on a wide range of employment and labour
matters including occupational health and safety, collective bargaining, employee privacy,
human rights issues, legislative advice, and drafting of all relevant contracts. We also have a
National Pension and Benefits Practice Group which assists clients in the sophisticated and
complex environment in which pension and employee benefit programs operate today.
Members of the Group regularly appear as counsel for employers in the courts and before
various employment and labour-related administrative tribunals both under federal and
provincial legislation.
Moreover, we are also regularly involved in the employment and labour-related aspects of
commercial transactions, including those arising from mergers, acquisitions, insolvency and
receivership, and in strategic employment and human resource planning. Our advice
includes negotiating the human resources aspects of a corporate transaction and drafting
various related agreements including transition services agreements, employment
agreements and restrictive covenant agreements.
Finally, as part of our commitment to assist corporate leaders to establish and refine positive
management and employee practices, we regularly provide in-house seminars and develop
publications that address topical and timely employment issues. For foreign clients looking to
invest in Canada, we have produced a Canadian Employment, Labour and Pension Law
FAQ, outlining significant issues that companies should consider when entering the
Canadian market.
Recognition for Our Work
The Group has been recognized as a leader in the Canadian marketplace by Chambers
Global’s Guide to the Leading Lawyers for Business. The Group has also been endorsed by
PLC Which Lawyer?, with our Quebec practice cited in the area of labour and employment
and our Ontario practice cited in the area of pensions and benefits.
STIKEMAN ELLIOTT LLP EMPLOYMENT, LABOUR AND PENSION GROUP
Employment Law Services
We regularly assist employers and their executives with:
> Business immigration and relocation;
> Compliance with employment related statutes;
> Director and officer liability issues and fiduciary duties;
> Disciplinary measures, layoffs and termination of employment;
> Drafting and enforcing confidentiality, non-solicitation and non-competition covenants;
> Drafting and interpretation of employment agreements;
> Employee drug and alcohol testing;
> Employment contract and incentive compensation issues;
> Employment-related class proceedings;
> Employment-related mediation and conciliation;
> Executive compensation, including supplemental pension and retirement compensation
arrangements;
> French language requirements in the workplace (Quebec);
> Health and safety in the workplace including the strategic planning of worker’s
compensation assessments (Quebec);
> Human rights, harassment and violence in the workplace;
> Incentive compensation such as bonus plans and stock option plans;
> Management education and training;
> Managing chronically ill and absent employees;
> Occupational health and safety;
> Outsourcings, restructurings and plant and facility closures;
> Pay equity;
> Pension issues in the context of mergers and acquisitions, bankruptcy and insolvency;
> Privacy and access to information issues in the employment setting;
> Pleading employment–related litigation;
> Reorganization and workforce reduction;
> Strategic human resources planning;
> Termination and severance practices and arrangements;
> Transition and retention programs, and retirement benefits;
> Workplace policies; and
> Wrongful dismissal.
Labour Law Services
In the field of labour relations, we focus exclusively on representing management. Our
services in this field include advice and representation in:
> Collective agreement administration;
> Collective bargaining;
> Discipline and termination of employment;
> Instituting proactive and positive employee relations practices and programmes;
> Labour arbitration and dispute resolution;
> Industrial conflicts (strikes, lock-outs and picketing);
> Successor-employer proceedings;
> Unfair labour practices;
> Union organizing, certification and decertification campaigns; and
> Strategic labour advice.
Members of the Group regularly appear as counsel for employers in the courts and before
various employment and labour-related administrative tribunals both under federal and
provincial legislation.
Several members of the group have lectured at the university level, authored books, legal
service manuals and articles, including Le congédiement déguisé au Québec – Fondements
théoriques et aspects pratiques, The Employment Contract, Le contrat d’emploi, Executive
Employment Law, Les dirigeants: leurs droits et leurs obligations, as well as a section
dealing with labour law in the publication titled Doing Business in Canada.
Pension and Benefits Group
National and international enterprises have a growing demand for innovative legal advisors
to assist in the increasingly sophisticated and complex environment in which pension and
employee benefit programmes operate today. Our National Pension and Benefits Practice
Group is widely recognized for its ability to assist clients in this area, which will continue to
grow in importance as the Canadian population ages.
The practice is centred in the firm’s Employment, Labour & Pension Group, but also draws
upon expertise from the Corporate, Litigation and Taxation Groups of the firm. This approach
provides flexible and multi-disciplinary solutions tailored to the client’s specific needs. As the
first law firm in Canada with practitioners in both Montréal and Toronto devoted exclusively
to pension matters, we offer a unique capacity to advise on matters governed by Quebec,
Ontario, and federal pension law. Our practice has been endorsed as a Canadian leader by
Chambers Global’s Guide to the World’s Leading Lawyers for Business.
Expertise
Pension and benefit programmes are becoming increasingly sophisticated and the
regulatory and legal framework in which they exist increasingly complex. Our pension and
benefits expertise includes the full range of legal matters in this area, including:
> Drafting registered and supplementary pension plan rules, trust agreements, investment
management agreements and investment policies;
> Advice on pension plan governance, pension plan conversions, mergers and other
restructurings and pension fund investment issues;
> Negotiation of pension funding relief and pension surplus-sharing agreements;
> Advice on the impact of transactions such as mergers and acquisitions, reorganizations,
insolvencies, outsourcings, and privatizations;
> Design and administration of employee share ownership plans and phantom stock
plans;
> Negotiation of and structuring executive compensation arrangements and advice on the
taxation thereof;
> Assisting financial institutions in the development and administration of pension and
retirement products;
> Advice on creditor protection of retirement income arrangements; and
> Representation of plan sponsors before pension regulatory tribunals and the courts and
counsel employers on benefits-related issues in unionized environments.
Members of Stikeman Elliott’s National Pension and Benefits Group are involved in many
professional development activities, including:
> Constituting the editorial board of Canadian Cases on Pensions and Benefits, a monthly
law report published by Thomson Carswell;
> Sitting on the Quebec Pension Board, Financial Services Commission of Ontario and
Financial Services Tribunal Legal Advisory Committees, Ontario Bar Association
Pension and Benefits Section Executive, Association of Canadian Pension
Management and Canadian Pensions and Benefits Institute;
> Publishing articles in various newspapers, law reviews, and pension industry
publications;
> Contributing the Canada chapter to Employee Share Plans: International Legal and Tax
Issues;
> Speaking at meetings and conferences of numerous organizations both in Canada and
abroad; and
> Advising foreign governments on pension reform.
Value-Added Client Resources
As part of our effort to remain at the forefront of client service, we have developed an
employment and pension law blog, featuring practical and timely information and
commentary on important legal and policy developments in this area of law, including
termination of employment, executive compensation, human rights, occupational health and
safety, pension plan, governance, pension fund investment issues, overtime, social
networking pension plan mergers, conversions and other restructurings, insolvency-related
pension issues, employment standards, drug testing legislation updates and privacy. The
blog is fully searchable with extensive archived materials, indexed by topic, and allows users
to subscribe for regular updates via email or RSS feed.
The blog is available at www.CanadianEmploymentPensionLaw.com.
STIKEMAN ELLIOTT BUSINESS LAW
BLOGS
Stay up-to-date with information and analysis on
key areas of Canadian business law – online.
Stikeman Elliott’s growing roster of business law blogs
will keep you in the know.
CLASS ACTIONS | CanadianClassActionsLaw.com
COMMUNICATIONS | CanadianCommunicationsLaw.com
COMPETITION AND FOREIGN INVESTMENT | TheCompetitor.ca
EMPLOYMENT, LABOUR AND PENSION | CanadianEmploymentPensionLaw.com
ENERGY | CanadianEnergyLaw.com
MINING | CanadianMiningLaw.com
SECURITIES/CAPITAL MARKETS | CanadianSecuritiesLaw.com
STRUCTURED FINANCE | CanadianStructuredFinanceLaw.com
TECHNOLOGY AND INTELLECTUAL PROPERTY | CanadianTechnologyIPLaw.com
email updates | rss | twitter
Subscribe directly through any of our
blog sites or go to www.stikeman.com
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