Canada: Monsanto – What Are the Implications?

This article will discuss the implications of the Monsanto decision for pension plan sponsors, trustees, custodians and others in the pension industry, and highlight some of the most pertinent issues, including: What did the Supreme Court of Canada say and who will be affected? What are the immediate issues that must be faced by the pension industry? What are the long-term implications of the Monsanto Decision? What can pension plan sponsors expect from FSCO, their actuaries, accountants and directors, the government and others?

Issue. The issue in this case is whether there has to be a distribution of a portion of actuarial surplus at the time of a partial wind-up of a pension plan. Specifically, does subsection 70(6) of the Ontario Pension Benefits Act (PBA) require the distribution of a proportional share of actuarial surplus as at the partial windup date?

The Supreme Court of Canada held that subsection 70(6) of the PBA requires the distribution of actuarial surplus related to that part of the pension plan being wound-up, on the effective date of the partial wind-up.

What this case is not about is who "owns" the surplus. Contrary to what has been reported in the media, the Supreme Court ruling did not give Monsanto’s laid off workers the right to share the surplus in the company’s pension plan on the partial wind-up date. That issue was not dealt with by the Financial Services Tribunal at first instance. Accordingly, who gets the actuarial surplus in Monsanto’s case will have to be decided at a later date.

In considering the proper interpretation of subsection 70(6), Justice Deschamps held that there were two parts to the analysis.The first question is the appropriate standard of review of the Tribunal’s decision. Should deference be accorded to the Tribunal’s reasons or should the Tribunal’s decision be considered on a "correctness" standard"? The second question, having decided upon the appropriate standard of review, is how does the Tribunal’s interpretation of subsection 70(6) measure up as against this standard?

Standard Of Review. On the issue of standard of review, the Ontario Divisional Court and the Court of Appeal accepted that the decision of the Tribunal should be reviewed on a "reasonableness" standard. The Supreme Court of Canada held, however, that the Tribunal’s interpretation of subsection 70(6) was reviewable on a "correctness" standard. In other words, the Tribunal’s interpretation of subsection 70(6) has to be "correct", not simply "reasonable".

This is a surprising finding on the part of the Supreme Court given that even the Ontario Superintendent of Financial Services, the Respondent in the case, was of the view that the proper standard of review of the Tribunal’s decision should be on a "reasonableness" standard. The Court articulated a number of reasons why it thought that a "correctness" standard was appropriate and noted in particular two factors.

First, the Supreme Court found that the issue on appeal was a pure question of law related to the interpretation of a section of the PBA which, in the Court’s eyes, had "no specialized technical meaning". The Court noted that statutory interpretation is an exercise that the courts are well equipped to handle.

Second, and most importantly, the Court went on to hold that the Tribunal does not have specific expertise in this area. The Court noted the Tribunal, created in 1997 to replace the specialized Pension Commission of Ontario, was responsible for dealing with disputes in a number of other regulated sectors in addition to pensions, thereby suggesting that the Tribunal’s expertise in any one area had been diluted.

The Court also noted that unlike the former Pension Commission of Ontario, the Tribunal has no "policy function" as part of its mandate, nor is there any requirement that Tribunal members assigned to hear a particular case have special expertise in pension matters.

In addition to its decision on the merits concerning the proper interpretation of subsection 70(6), this part of the Supreme Court’s ruling is significant. We believe that the Supreme Court’s ruling concerning the lack of deference to be accorded to the Tribunal’s decisions will lead to even more litigation as losing parties before the Tribunal will not be prepared to accept the Tribunal’s decisions.

Interpretation Of Subsection 70(6). Turning to the Court’s analysis of subsection 70(6), perhaps the most interesting aspect of this part of the Judgment is the Court’s comments on the object of the Act and the policy reasons supporting the Court’s interpretation of subsection 70(6). For example, Monsanto Canada Inc. (Monsanto) and the Association of Canadian Pension Management (ACPM) argued to the effect that if the proper interpretation of subsection 70(6) requires a distribution of actuarial surplus on a partial wind-up, there is a real risk that in future, plan sponsors may fund defined benefit plans less conservatively, thereby impacting on the overall security of promised pension benefits.

The Supreme Court’s response to this argument was that the statutory scheme protects against underfunding by requiring employers and administrators to follow accepted actuarial practice in their valuations. Moreover, the Court was of the view that there are a variety of reasons why employers adopt defined benefit plans including attracting a labour supply, reducing turnover and improving morale.

The Supreme Court went on in its Reasons to dismiss a second policy argument raised by Monsanto and the ACPM to the effect that the Court’s interpretation of subsection 70(6) could result in unfairness to ongoing plan members. In this regard, one of the examples raised in argument before the Supreme Court was a situation where, at the partial wind-up date, the plan is in surplus but a year later, in the context of a full wind-up, the plan is in deficit. The argument made before the Supreme Court was why is it fair that the members of the partial wind-up group received a share of the actuarial surplus identified as of the partial wind-up date when members of the final wind-up group are at risk of not receiving their basic benefits?

The Supreme Court did not deal with this scenario in its reasons, noting that any requirement that a pro rata share of the actuarial surplus be distributed at the time of the partial windup was unlikely to compromise the continuing integrity of the pension fund given that, by definition, the fund would still be in surplus after the distribution.

At the end of the day, the Court seemed more influenced by the fact that in many cases, members of the partial wind-up group are going to be in a significantly different (and worse) position from continuing employees because they will have lost their jobs, their level of pensionable earnings will have been reduced and they will rarely be able to replicate the same level of benefits elsewhere.

There are numerous aspects to this question. For example, how will Monsanto affect plans which may or may not be registered in Ontario and which have members in provinces other than Ontario or federally regulated members? How will Monsanto apply at the various different stages of a partial wind-up? What should the date of the partial wind-up be? How should surplus be allocated to the partial wind-up group? What if the employer is entitled to the surplus? How might Monsanto impact on the negotiation of business transactions which involve corporations that sponsor defined benefit pension plans? And what, if any, is the effect on defined contribution pension plans?

Plans With Members In Provinces Other Than Ontario. The decision in Monsanto could affect pension plans registered in jurisdictions other than Ontario where the pension benefits legislation contains, or contained at the relevant times, legislation similar to subsection 70(6) of the PBA. The reasoning in the Monsanto case may also apply to plans registered in a particular province (for example, Québec), but which have members employed in other provinces in which there is pension benefits legislation similar to subsection 70(6) of the PBA. In this regard, it is important to remember recent court decisions in Québec and Ontario (specifically the McColl-Frontenac ( Imperial Oil) and Lecocases), which concluded that rights with respect to surplus must take into account the jurisdiction of employment of each affected plan member.

In order to get a sense of the potential complexities that may arise where the pension legislation in more than one jurisdiction must be considered, it is useful to consider the pension legislation in a number of the larger pension jurisdictions. In the federal jurisdiction, the Pension Benefits Standards Act has since 1987 contained a provision relating to partial plan windups where the statutory language is similar, although not identical, to the provisions under the PBA interpreted by the Supreme Court in Monsanto. Similarly, in Nova Scotia, the Pension Benefits Act contains a provision relating to partial plan wind-ups that is virtually identical to subsection 70(6) under the PBA. The provision under the Nova Scotia Pension Benefits Act has not been changed since the adoption of that legislation in 1989.

The situation in Alberta and British Columbia is quite different from the corresponding legislation in Ontario, Nova Scotia and the federal Pension Benefits Standards Act. In Alberta, the Employment Pension Plans Act contains a provision relating to partial plan termination which states that "where only part of a pension plan is terminated, the entitlements of members and former members affected by the partial termination are not less than those to which they would have been entitled had the whole of the plan been terminated on the date of the partial termination". It is possible that a court might conclude that this language, by itself, should be interpreted in the same manner as subsection 70(6) of the PBA was interpreted by the Supreme Court in Monsanto. In 1992, the Alberta Employment Pension Plans Act was amended in order to provide that the requirement of that legislation to provide entitlements following a partial wind-up no less than the entitlements following a full wind-up should not be "construed as entitling any person affected by the partial termination to share in any distribution of the surplus assets on the partial termination of the plan". A similar amendment was made to the British Columbia Pension Benefits Standards Act in 1999.

It will be seen that in the case of the Alberta and British Columbia legislation, there is the added potential complication of determining whether the original legislation, which is arguably similar to the legislation considered by the Supreme Court in Monsanto, should apply in a particular situation or whether the current legislation should apply. It is possible that members in Alberta and British Columbia may be able to argue that regardless of when the partial wind-up was declared or ordered by the pension regulator, the legislation actually in effect on the effective date of the partial wind-up, as opposed to the current legislation, should be applicable. As will be seen from these two examples in British Columbia and Alberta, if a court were to take this view, there could be quite a different result depending on the effective date of the partial windup.

In Québec, the Supplemental Pension Plans Act does not refer anymore to partial plan wind-ups. Before 2001, partial plan wind-ups could occur under the Québec pension legislation, however, the relevant provisions in effect after 1992 were significantly different from the provisions of the PBA considered by the Supreme Court in Monsanto. Before 1993, however, the Québec Supplemental Pension Plans Act contained provisions which might be regarded as being similar to subsection 70(6) of the PBA. Specifically, Section 213 of the Supplemental Pension Plans Act, before it was amended in 1993, provided "the benefits allocated by a pension plan to a member affected by a partial termination of the plan shall be identical to those which would have been allocated to him in the event of a total termination".

It remains to be seen whether a plan member employed in Québec could successfully argue that this provision in the Supplemental Pension Plans Act (perhaps as it applied to a business closure or re-organization that occurred before 1993), should be interpreted in the same way as the Supreme Court has interpreted subsection 70(6) of the PBA. It is clear that the provisions of the Québec Supplemental Pension Plans Act in effect after 1992 are fundamentally different from the legislation considered by the Supreme Court in the Monsanto case.

Different Stages Of Partial Wind-Up. One obvious question everyone will be asking is does this affect my plan? There are three discrete categories of plans that could be affected by this decision in Ontario:

One. The first category comprises plans where a partial wind-up report has been filed with the regulator, but the report has not yet been approved or rejected because it did not provide for any of the estimated actuarial surplus to be distributed at the time of the partial wind-up. Since those reports were not approved or rejected by the regulator, each pension plan in this situation could be affected. FSCO has said there are 281 unresolved partial wind-ups with surplus affecting 208 employers. It is possible that the Superintendent will now decide to revisit each of these partial wind-ups in an effort to require the affected plan sponsors to distribute a portion of the estimated actuarial surplus as of the partial plan wind-up date. It may not matter that the plan has no surplus today.

Two. The next group involves situations in which there was a partial wind-up at a time when the plan had a surplus, the windup report was submitted to the regulator, there was no distribution of the surplus, and the regulator approved the partial wind-up report.These are likely to be partial wind-ups before 1992. There is certainly an argument that the prior approval of the regulator ends any further discussion, but it is also possible that the members affected by such a wind-up may want to have the matter reopened in order to get at the undistributed surplus. We’ll have to wait and see what happens with these situations.

Three. The last group is the most worrisome, because this involves situations where no partial wind-up has yet been declared. In other words, these are situations in Ontario where an event or events have happened since 1969 which might give rise to a partial wind-up; for example, where a company closed a plant in 1970, but there was no partial wind-up of the pension plan declared at that time. In this situation, it is conceivable that a group of terminated pension plan members affected by the closure could contact the Ontario Superintendent of Financial Services and request a partial wind-up. If the Superintendent were to agree, a partial wind-up might be ordered retroactive back to the date of the closure. Under the Ontario Pension Benefits Act, the Superintendent has the right to declare a partial wind-up under any of the circumstances listed in subsection 69(1) of the PBA, or its predecessor provisions. Not all of these situations involve job losses. For example, a partial wind-up could be imposed where part of the employer’s business was sold and the buyer did not provide a registered pension plan.

Limitation Periods. A logical question flowing from this is whether there are any limitation periods which would stop anyone from making a successful claim in respect of a partial wind-up, or a partial wind-up event, which occurred many years ago. The difficulty here is that there is no statutory limitation period that governs the Superintendent’s ability to declare a partial wind-up and there is no statutory limitation on the Superintendent’s ability to take steps to require a plan sponsor to comply with subsection 70(6) of the PBA. We expect, however, that many plan sponsors will raise legal arguments about the delay if the Superintendent seeks to go back into history. These types of legal defences are generally fact specific and no general statements can be made about how viable such arguments will be.

Aside from any retroactive or retrospective actions the regulator might take, plan members may also be able to bring an action claiming that they did not receive the surplus to which they were entitled on a partial plan wind-up. Depending on the facts, here too, there may be no applicable statutory limitation periods; however there may be other defences.

Date Of Partial Wind-Up. This is another troublesome issue. What is the appropriate date of the partial wind-up? Employers may attempt to select a date when asset values are low and surplus is minimized. Affected plan members or the Superintendent may attempt to impose a date when surplus is high. Issues may also arise as to whether multiple dates or an extended period are appropriate. It can be expected that in many cases, there will be litigation over not only whether a partial wind-up can be imposed, but over which date or dates should be used.

Attribution And Allocation Issues. Now that the Supreme Court has decided that surplus must be distributed on a partial windup, how does one identify the partial wind-up surplus? If it is to be attributed to the partial wind-up group, what if all the people who are affected by the partial wind-up came into the plan after the surplus was created? Could it be argued that none of the surplus should be attributed to them? What if the plan does not require employee contributions? Can we argue that none of the surplus is attributed to them because it is all attributed to the employer’s contributions? Can benefit improvements previously funded out of surplus be used to offset the surplus otherwise required to be distributed in connection with a partial wind-up? These are all issues of fact which will have to be determined on a case by case basis.

Employer Entitlement. What happens if an employer establishes that it owns the surplus? Will the surplus allocable to the partial wind-up have to be paid out of the plan on a partial wind-up if the employer owns it? In Ontario, employers who seek to withdraw surplus have to get the consent of plan members. What if the employer is not willing to share the surplus with plan members or the employer and plan members cannot agree on an equitable split of the surplus? There is nothing in the PBA or the Regulations that says how this dispute is to be resolved.

Impact Of Monsanto Decision On Negotiation Of Business Transactions.The impact of the Monsanto decision needs to be considered in the context of negotiating business transactions relating to corporations which sponsor defined benefit pension plans.

In many transactions, the parties will negotiate representations and warranties relating to the compliance of pension plans with applicable pension laws, plan terms and other applicable requirements. It is also fairly common for transactions to include representations and warranties to the effect that the actuarial and financial status of the pension plans sponsored by the entity that is being sold has been accurately reflected in statements and reports provided to a purchaser in connection with the transaction. Vendors who are considering giving representations relating to the compliance of their pension plans with applicable laws or with respect to accurate disclosure of financial information relating to those plans, should consider whether it is necessary or appropriate to do further due diligence before agreeing to the representations where there is a possibility that historic partial wind-ups could be challenged as a consequence of the Monsanto decision. Correspondingly, buyers will need to give careful consideration to appropriate pre-transaction due diligence and, possibly, obtain appropriate vendor indemnities if they suspect that the pension plans of the target company may have been affected by partial wind-ups which might, as a consequence of Monsanto, be challenged.

Effect On Defined Contribution Pension Plans. With respect to the issue of defined contribution plans, the Monsanto decision affects defined benefit plans that are in surplus at the date of the partial wind-up. On the face of it, therefore, it would appear that defined contribution pension plans are not affected by the decision. However, care must be taken before jumping to this conclusion. A defined contribution plan may be affected if it resulted from the conversion of a defined benefit plan, has accepted a transfer of assets from a defined benefit plan that included an amount related to surplus, or has significant forfeitures. There are many more issues raised by this case. Most of the issues are fact sensitive, so many of these issues will have to be looked at on a plan by plan basis to determine the appropriate strategy and of course for resolving them.

FSCO has placed a note on its Web site that in light of the Supreme Court of Canada decision in Monsanto, FSCO will, within 30 days, "send letters requesting current compliance information from each plan administrator who filed a partial plan wind-up report but who has not yet dealt with the related surplus". We understand that FSCO has, since 1993, maintained a record of unresolved partial wind-ups and that those records show 281 partial wind-ups of plans in surplus affecting 208 employers.

The above numbers do not include partial wind-ups before 1992 (which is when FSCO’s system began tracking partial wind-ups) or cases where a partial wind-up was not volunteered or ordered but could have been based on the relevant facts. It is unclear how FSCO will handle undeclared wind-ups or wind-ups completed prior to 1992. It is also unclear how FSCO will deal with approved wind-ups and whether FSCO has the authority to deal differently with plans now in deficit.

As to the deficit point, Greg Robinson, a FSCO spokesman, told the press that the letters sent to administrators will seek to determine the current funding status of the pension plans and if the surplus that existed at the time of the partial wind-up has diminished. FSCO is then going to "develop a process for what should be done if the surplus has diminished".

A senior official at the Ministry of Finance confirmed that there have been no public statements from that Ministry, or the Minister, relating to the Monsanto decision and that none are expected in the short term.

The reactions of the regulatory authorities in other provinces and the federal jurisdiction will also have to be carefully scrutinized to determine exactly what actions plan sponsors ought to be taking.

The Canadian Institute of Actuaries has flagged the potential adverse affect of the Monsanto decision on actuarial results. Accordingly, it appears many plan sponsors can expect changes to their actuarial results based on this decision. One can also expect that the accounting profession will feel the need to reflect the Monsanto result in many circumstances in corporate financial reporting.

Plan sponsors ought also to be considering briefing their boards of directors carefully. As we will all have seen, this decision is front page news and one can only expect that every director of a company with a pension plan ever in surplus will want to know what risks exist for their company because of this decision. With the rise of class action litigation already having a significant impact on the pension industry, one can expect that to the extent the regulatory authorities do not act sufficiently quickly, lawyers will fill the breach and some pension plans will be subject to litigation.

What is the likely legislative response? As the decision impacts all Canadian jurisdictions with similar pension legislation and affects the period of time since such provisions were enacted, legislation with retroactive effect would have to be enacted in each of those jurisdictions in order to fully address all partial wind-ups or potential partial wind-ups that might be affected by the decision.

In 2002, the then Ontario Progressive Conservative government introduced Bill 198 that, in part, explicitly provided that surpluses may be retained in a plan on a partial wind-up. Labour groups and others launched a successful lobbying effort which resulted in the withdrawal of the bill. At the time, Premier Dalton McGuinty, then in opposition, called the bill "patently unfair" and said that it trampled on the rights of workers. Therefore, it may be particularly unlikely that there will be a legislative response in Ontario in the near future.

However, CAPSA, an association of all pension supervisory authorities in Canada, recently suggested eliminating the idea of partial wind-ups entirely. In its Proposed Regulatory Principles for a Model Pension Law, CAPSA suggested that as "the principles propose immediate vesting of all benefits, the concept of a partial wind-up is unnecessary". This may be an indication of some willingness, at least at the bureaucratic, if not the political, level to have a legislative response, at least with prospective effect.

The Supreme Court rejected expert evidence requiring that the distribution of surplus on a partial wind-up will result in a lower level of contributions to defined benefit pension plans and the creation and maintenance of fewer private pension plans overall. However, this may well be the effect of the Court’s decision in Monsanto.

Employers have generally been prepared to fund defined benefit plans on a relatively conservative basis on the theory that the creation of some surplus in an ongoing plan will likely reduce future contribution costs (through contribution holidays) and provide funds for future increases in benefits for active plan members and indexing of pensions for retirees. If employers are required to distribute surplus in the event of a partial wind-up, that surplus will not be available for future contribution holidays, benefit improvements or indexing.

The current and future costs to employers and pension plans of forcing the distribution of surplus on a partial wind-up may have a number of long-term implications for defined benefit plans, including:

1. Fewer defined benefit plans.

2. Less well funded defined benefit plans.

3. Plans with smaller, less costly, benefits.

4. Minimal benefit improvements/indexing.

The Supreme Court seemed to be of the view that reasons for employers to maintain defined benefit plans and continue to fund them in the same manner as in the past outweighed these concerns about the long-term implications of insisting on the distribution of surplus on a partial wind-up. It is too early to tell whether this view will prove correct. However, one need only look to the U.K., where concerns about rising funding costs and legal liabilities have recently led to a substantial number of defined benefit plans being closed to new members or terminated completely. Experience in the U.K. suggests that employers will not maintain defined benefit pension plans where they believe it is uneconomical to do so.

The lack of deference that the Supreme Court of Canada held should be provided to the Financial Services Tribunal has been discussed above. Going back in time, there were certainly those who expressed to the Ontario government that, due to the breadth of the regulated industries, and the lack of a policymaking role for the Tribunal, deference would not be accorded to the Tribunal’s decisions.

Readers may recall that the changes to the Pension Commission of Ontario that resulted in the creation of the Financial Services Tribunal were to be followed by the merger of the Financial Services Commission with the Ontario Securities Commission. If that merger had proceeded, there were discussions that a separate pension tribunal would be created in order to solve both of the concerns regarding the Tribunal related to expertise and policy-making.That merger initiative seems unlikely to proceed.

Given these developments, should the Financial Services Tribunal be eliminated? If the decisions of that Tribunal will not be given deference by courts, one has to ask whether it would be preferable to simply move to the courts in the first instance.

The Monsanto decision definitively answers the question of whether subsection 70(6) of the PBA requires a distribution of actuarial surplus on partial wind-up of a pension plan.The Court said that subsection 70(6) "requires the distribution of actuarial surplus related to the part of the Plan being wound up, on the effective date of the partial wind-up". Unfortunately, the case raises many new issues that plan administrators, plan members, regulators and their professional advisors must now address. It remains to be seen precisely what the long-term implications will be.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.