LEGISLATION
FEDERAL BUDGET
On May 2, 2024, the federal government tabled Bill C-69, the 2024 Budget Bill, which would amend the following statutes:
- Pension Benefits Standards Act, 1985 to require the Office of the Superintendent of Financial Institutions (OSFI) to publish, within a reasonable time after the end of each calendar year, information relating to the investments of federally regulated pension plans (FRPPs)
- Canada Pension Plan (CPP) and Canada Pension Plan Regulations to:
- provide, beginning January 1, 2025, for a death benefit of $5,000 where no other CPP benefit, other than the orphan’s benefit, has been paid in respect of the deceased contributor’s contributions
- expand the child’s benefit to include dependent children aged 18 to 24 who are in part-time attendance at school
- maintain eligibility for the disabled contributor’s child’s benefit if they age 65, allow for the deeming of an application for that benefit to have been made at an earlier date, and clarify the determination of the recipient of the benefit
- beginning January 1, 2025, exclude separated spouses from entitlement to a survivor’s pension if they have received a division of unadjusted pensionable earnings in respect of their deceased separated spouse’s CPP
- Income Tax Act and Income Tax Regulations to increase the Home Buyers’ Plan RRSP withdrawal limit, from $35,000 to $60,000, and defer the repayment period by three additional years for first withdrawals made between January 1 ,2022 and December 31, 2025
- Pooled Registered Pension Plans Act to require plan administrators to give written notice to persons joining the plan of their right to terminate membership, and other prescribed information
Other Budget 2024 announcements, not addressed in the federal Budget Bill, include establishing a working group to consider expanding investment opportunities in Canada for Canadian pension funds, and consulting, until July 15, 2024, on how the qualified investment rules for registered plans could be modernized with respect to:
- Types of qualified investments across different registered plans
- Conditions and formal registration
- Promoting more Canadian-based investments
ONTARIO BUDGET
Ontario’s 2024 Budget, tabled on March 26, 2024, noted that draft target benefit (TB) regulations will be available for technical review this summer, with a final framework implemented by January 1, 2025.
Bill 180, the 2024 Budget Bill has received Royal Assent: May 16, 2024, and contains various amendments to the TB provisions () under the Pension Benefits Act. These include:
- Adding a communications policy and a funding and benefits policy (currently funding policy) to the policies that a TB plan must file (in addition to a governance policy)
- Amending several requirements that must be satisfied for a benefit to be a target benefit including that the plan must be a MEPP established pursuant to a collective agreement or trust agreement, and benefits must generally be determined with reference to the value of assets within the pension fund
- Clarifying that requirements under the regulations will apply to a plan that no longer meets the TB criteria
- Adding a new asset transfer requirement that any transferred assets that relate to a target benefits must be used to provide target benefits (subject to regulations)
- Repealing provisions related to giving notice to members of a proposed conversion and applying to the CEO of the Financial Services Regulatory Authority (FSRA) for consent for the conversion
- Clarifying that an association representing members and former or retired members must, in addition to any trade union, be consulted about a proposed conversion
- Imposing a time limit of five years after the plan was most recently registered in Ontario for converting a designated multi-jurisdictional pension plan to a TB plan
- Requiring the administrator of a plan that provides target benefits to provide information requested by the FSRA CEO concerning the provision for adverse deviations
REGULATORY UPDATE
OSFI DEPARTMENTAL AND STRATEGIC PLANS
OSFI’s supervisory targets for pension plans, as set out in its 2024-25 Departmental Plan, include having only one or fewer Federal Registered Pension Plans (FRPP) with a supervisory rating (risk level) that increased by two or more levels within a three-month period. In 2022-23, there were two such plans. OSFI will also:
- Ensure that its FRPP supervision incorporates risk analytics
- Conduct supervisory and regulatory activities such as targeted monitoring, revisions to guidance and assessments
- Monitor non-financial risks such as governance, culture and cyber risks
OSFI had announced last November that it would hold spring 2024 webinars for pension plan administrators on the new OSFI supervisory framework. OSFI is modernizing the framework in response to changes in the risk environment over time. OSFI subsequently decided not to hold the webinars in the spring held one webinar in February 2024 before the new framework came into effect on April 1, 2024. See details here: Office of the Superintendent of Financial Institutions (osfi-bsif.gc.ca)
FSRA BUSINESS PLAN
According to its Annual Business Plan 2024-27, FSRA will:
- Implement the supervisory framework for large public sector pension plans
- Publish final guidance on plan amendments
- Consult on its updated surplus guidance
- Support development and implementation of the new target benefit framework
- Continue to review the long-term sustainability of the Pension Benefits Guarantee Fund, and build internal capabilities to assess related risks
- Implement a supervision plan for title credentialing bodies and individuals, and work to implement similar title protection frameworks in other jurisdictions
- Assess and improve compliance
FSRA IT RISK INCIDENT REPORTING
FSRA has released its final Information Technology (IT) Risk Management Guidance, in effect April 1, 2024. This guidance will help FSRA-regulated sectors and individuals effectively manage threats to their IT systems, infrastructure and data and includes 7 practices for effective risk management.
FSRA has also posted information on how regulated organizations (including pension plans) or individuals can report a material IT Risk incident. FSRA expects an incident to be reported within 72 hours. Reporting options include completing an online form, and uploading a completed FSRA (or another regulator’s) IT Risk Incident Notification Form. Users can upload additional requested documents after an incident has been reported. Under FSRA’s IT Risk Management Guidance, an incident can also be reported to a Pension Officer or Analyst.
CASELAW
RECTIFICATION OF PENSION PLAN TEXT
In IBM Canada Limited v. Dario Ceci and Jacinthe Ratelle, the Ontario Superior Court of Justice granted IBM’s application to rectify and address drafting issues in one of its pension plans. When restated in 2014, several changes were introduced into the plan text relating to benefit accrual during disability leave. These changes would have increased the accrual period for members receiving disability benefits under the plan’s DB and non-contributory DC provisions (to age 65 from age 55), while reducing IBM’s contributory period for members receiving disability benefits under a DC match provision (from two years to six months). The Court noted that rectification is routinely ordered to correct drafting issues, and that since the IBM pension plan was a unilateral instrument, only IBM’s intentions had to be proven. The Court ordered rectification, with retroactive effect from January 1, 2014 to June 30, 2019, after which the plan had been amended to reverse the changes, because they had been introduced because of a miscommunication; had not been intended by IBM; had not been requested or expected by, or communicated to, plan members; and had not affected plan administration or funding.
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