Administration

• Author: Ari Kaplan/Mitch Frazer
• Pages: 311-384

311

CHA PTER 6

ADMINISTR ATION

The convergence of statutory compliance and common law duties of

care resonates most fully in the area of pension plan administration.

This chapter describes the identity and functions of the pen sion plan

administr ator and the legal principles aecting the duties and stand ards

of care owed by the admini strator and its agents to employees and other

plan stakeholders in car rying out the pension plan mandate.

A. INTRODUC TION

1) Identity of the Administrator

a) Who may be the administrator

The Pension Benef‌its Act1 (PBA) requires that every p ension plan have an

“administrator.” A pension plan that does not identify an adm inistrator

is not eligible for registration.2 The identity of the admin istrator is a

matter of plan design. The PBA set s out the prescribed person, person s,

or entity that may be an adm inistrator.3 Specif‌ically, an administrator

1 Pension Benef‌it s Act, RSO 1990, c P.8 [PBA].

2 PBA, ibid, s 8(1).

3 PBA, ibid, s 8(0.2). No person or entity other than a pr escribed person or entit y

may admin ister the pension plan.

PENSIO N LAW312

may be an employer;4 an arm’s length “pension committee” comprised

of employer and employee representatives5 or just employee represent-

atives;6 an insurance company;7 a board of trustee s;8 a statutory corpor-

ation, boa rd, agency, or commi ssion;9 a person appointed by the Chief

Executive Ocer (CEO) of the Financia l Services Regulatory Authority

of Ontar io (FSRA);10 or any other prescribed person or entity.11

Similar, but not identical, requirements ex ist in other jurisdictions.12

In Quebec and Manitoba, most pension plan s registered in those prov-

inces with more tha n twenty-f‌ive employees (in Quebec) or f‌ifty employ-

ees (in Manitoba) must be administered by a “pen sion committee” that,

except in very limited circumstances,13 includes employee and pen-

sioner representation.14

4 PBA, ibid, s 8(1)(a). If there is more than one employer, the ad ministrator may

be one or more of those employers .

5 PBA, ibid, s 8(1)(b).

6 PBA, ibid, s 8(1)(c).

7 PBA, ibid, s 8(1)(d). If an insur ance company is the admini strator, all the

pension benef‌it s under the pension plan must be g uaranteed by the insu rance

company.

8 PBA, ibid, s 8(1)(e). The administr ator must be a board of trustee s if the pension

plan is a multi- employer pension plan establi shed pursuant to a collective

agreement or a tr ust agreement; see Section A(1)(b) below in this chapte r.

9 PBA, ibid, s 8(1)(f).

10 PBA, ibid, s 8(1)(g). The CEO has the authorit y to appoint an administr ator in

situations ot her than plan wind up, as well a s administer a plan it self. The pos-

ition of the CEO in Ont ario is referred to as the “ Superintendent of Pensions” or

similar, in mos t other jurisdictions.

11 PBA, ibid, s 8(1)(h).

12 See, for example, feder al Pension Benef‌its Standard s Act, 1985, RSC 1985 (2d

Supp), c 32, ss 7–7.1 [PBSA].

13 In Quebec, if a plan h as fewer than twenty-si x members and benef‌iciar ies, the

employer may take t he place of the pension committee. The e mployer shall, for

the admin istration of the plan, have t he powers, obligations, and liabi lity of a

pension comm ittee: QSPPA , s 149 and Reg (respecting t he exemption of certain

categories of pen sion plans from the application of t he Supplemental Pension

Plans A ct), ss 1 & 2. In Manitoba, a pension comm ittee need only be establishe d

where the pension pl an has more than the pre scribed number of employees:

MPBA, s 28.1(1) and Reg 39/2010, s 3.4, sets the numbe r of employees at f‌ifty.

14 In Queb ec, a pension plan must be adm inistered by a pension comm ittee com-

prised of at lea st three persons, includ ing one person who is neither a par ticipant

nor prohibited from receiv ing a loan from the plan, one per son who is designated

by the employees in t he plan at an annual meeting or, in t he absence of such a

designat ion, one employee designated as and when pr ovided in the plan, and one

person who is des ignated by the pensioners a nd other benef‌iciaries at t he annual

meeting or, in the abs ence of such a designation, one employee or bene f‌iciary

designated a s and when provided in the plan : QSPPA, s 147. Pension committees

have the power to es tablish internal byl aws prescribing rule s pertaining to t he

Administration 313

While more than one individua l can comprise the body that admin-

isters the plan, the legi slation contemplates the existence of only one

administrator.15 An administrator can and usu ally will delegate some

of its responsibilities to various persons or committees, includi ng the

employer or a trade union, a professional third-party administrator,

investment managers, consultants, and advisors. While this may cre-

ate an agency relationship between the administrator and its delegate,

it does not change the identity of the admin istrator for the purposes of

the PBA .16 The Income Tax Act17 (ITA) def‌ines the administ rator as the

body with “ultim ate responsibility for the administrat ion of the plan.”18

Except where permitted in wr iting by the Canada Revenue Agency

(CRA), the admin istrator (or the majority of the per sons who constitute

the administ rator) must be resident in Canada.19

b) Employee represent ation

In most pension plans, the administrator is usually the employer that

also sponsors the plan. Except in limited circumst ances, the PBA nei-

ther provides as a right, nor requires, employees and pensioners to par-

ticipate in the admini stration of the plan. Employee participation in

the administ ration of the plan is permissive under the PBA, t he right to

which derives from collective bargain ing or other contractual obligation

procedure and govern ance of the committee. These byl aws may cover a variety

of prescrib ed topics, and can override prov isions in the plan text . In Manitoba, a

pension plan mus t provide for the appointment or election of comm ittee mem-

bers in accorda nce with the regulation s, and must ensure that at lea st one voting

active member is app ointed or elected by the active membe rs, at least one voting

non-active member i s appointed or elected by the non-active me mbers, and one

additional non-voti ng member may be appointed or electe d by the active and

non-active member s: MPBA, ss 28.1(1)(f) and 28.1(1.2).

15 R v Blair (1995), 129 DLR (4th) 367 at para 125 (Ont Ct Gen Div), rev’g (1993),

106 DLR (4th) 1 (Ont Prov Ct) [Blair].

16 See FSCO Bul letin A300-101 (1 January 2016). Accordingly, where an employer

appoints itse lf as administrator of t he pension plan (in accordance wit h PBA,

s 8(1)(a)) and delegates a number of day-to- day responsibilitie s to a pension

committee, the com mittee is not a “pension committ ee” administrator pursu ant

to PBA, s 8(1)(b), since thi s would create two admini strators and the PBA does

not contemplate “multi” adm inistrators. Instea d, the pension committee is an

agent of the admin istrator to the extent of its deleg ated authority.

17 Income Tax Act, RSC 1985 (5th Supp), c 1, as amended [ITA].

18 ITA, ibid, s 147.1(1) “administrator.”

19 ITA, ibid, s 147.1(6). Also, CRA must be infor med in writing, wit hin thirty days

after the adm inistrator has been c onstituted, of the name and add ress of the

adminis trator or of each member of the body th at is the administr ator and be

notif‌ied of any cha nge in such information wit hin sixty days aft er the change:

s 147.1(7).