Regulation

• Author: Ari Kaplan/Mitch Frazer
• Pages: 131-199

131

CHAPTER 4

R EG UL ATIO N

A. INTRODUCTION

Every pension plan registere d in Ontario or covering persons employed

in Ontario is subject to the Pension Benef‌its Act (PBA) and, is thereby,

within the jurisdiction of the Ontario pension regulator. This chap-

ter outlines the corporate and organizational structure of the Ontario

pension regulator, the division of responsibilities among its various

components, the scope of its jurisdiction to addre ss certain matters, and

its decision-making powers, practices, and procedures for adjudicating

pension disputes.

B. FINANCIAL SERVICES REGULATORY

AUTHORITY

1) Introduction

“All persons who establish or administer a p ension plan within the mean-

ing of the Pension Benef‌its Act and al l employers or other persons on their

behalf who are required to contr ibute to any such pension plan” belong

to the “pension sector,” one of seven “regulated sectors”1 governed by

1 Financial Ser vices Regulatory Authority of O ntario Act, 2016, SO 2016, c 37, s 1(1),

“regulated s ector.” The other regulated sect ors include: (a) all credit unions,

caisses populaires, and league s to which the Credit Unions and Caisses Populaires

PENSION LAW132

the Financial Services Regulatory Authority of Ontario Act, 2016 (the

FSRA Act).2 The FSRA Act established the Financial Services Regulatory

Authority of Ontario3 (FSRA), as a Crown agent,4 the purpose of which

is to “regulate and generally supervise the regulated sectors” and to

“contribute to public conf‌idence” in those sectors.5 The predecessor of

FSRA was the Financial Services Commission of Ontario (FSCO). FSRA

assumed the responsibilities of FSCO eective 8 June 2019.

There are four bodies associated with FSRA that participate in the

regulation of pension plans i n Ontario: the FSRA board of directors (the

Board), the executive branch of government, the Chief Executive Ocer

of FSRA, and the Financial Services Tribunal (the Tribunal). Each is

discussed below.

2) Financial Services Regulatory Authority

a) Board composition and structure

The FSRA Act provides that the Board be composed of at least three

and not more than eleven members.6 Appointments are made by the

Lieutenant Governor in Council in accordance with the Agencies and

Appointments Directive and the procedure s of the Public Appointments

Secretariat of the Govern ment of Ontario. One member is designated as

chair by the Lieutenant Gover nor in Council on the recommendation of

the Minister.7 If the chair is absent or their oce is vacant, the present

directors shall choose one of them to act in the place of the chair.8 A

majority of the members of the Board constitutes a quorum.9

Act, 1994 applies; (b) all person s engaged in the business of i nsurance and gov-

erned by the Ins urance Act; (c) all corporation s registered or incorporated u nder

the Loan and Trust Corp orations Act; and (d) all mortgage brokerages, broker s,

agents, and admi nistrators license d under the Mortgage Brokerages, Lenders and

Administrators Act, 2006; (e) employees of the Ont ario provincial gover nment

or self-employed per sons who participate in pooled p ension plans under the

Pooled Registered Pension Pla ns Act, 2015;and will includ e (f) f‌inanc ial planners

and advisor s licensed under FinancialProfessio nals Title Protection Act, 2019,

when the Financial Profess ionals Title Protection Act comes into force .

2 SO 2016, c 37 [FSRA Act].

3 FSRA Ac t, s 2(1).

4 Ibid, s 2(3).

5 Ibid, s 3(1).

6 Ibid, s 8(2). The Board is curr ently comprised of seven member s, including the

chair.

7 Ibid, s 8(6).

8 Ibid, s 8(8).

9 Ibid, s 8(5).

Regulation 133

Under the FSRA Act,the Board appoints a Chief Executive Ocer

(CEO), who is “responsible for the management and administration”

of FSRA.10 Under the prior FSCO regime, this role was assumed by

the Superintendent of Financial Services. The CEO is supervised and

directed by the Board, but a quorum of the Board may, in writing, dele-

gate many of its powers and duties under the FSRA Act to the CEO.11

FSRA hires employees to as sist in the carry ing out of its mandate. Those

employees may be appointed as ocers if necessary.12

b) Statutory functions

In addition to its mandate to regulate its sectors in the public interest,

FSRA has a number of specif‌ic functions under the FSRA Act. These

include collecting and enforcing amounts to be paid by employers to the

Pension Benef‌its Guarantee Fund;13, 14 collecting and enforcing the pay-

ment of such fees, levies, sector assessments, and other charges as may

be established by a rule of FSRA;15 preparing and publishing an annual

business plan;16 making ru les governing the fees, levie s, and other char-

ges FSRA may impose, including for f‌ilings, applications for licences or

registration, and compliance reviews or audits made by FSRA.17 The

Board may make bylaw s with respect to the admini stration and conduct

of the regulator, the powers, functions, and duties of the chair, ocers,

and delegating duties of the Board to committees or duties of an ocer

to employees.18 These bylaws are subject to approval of the Minister.19

FSRA may make rules in respect of any matter over which an Act

gives FSRA rule-making authority.20 The Board may not delegate its

rule-making power, even to the CEO.21

10Ibid, s 10(2).

11Ibid, s 10(2.1).

12Ibid, s 10(3).

13 Ibid, s 6.1. Section 82(3.1) of the Pensions Benef‌its Act, RS O 1990, c P.8, requires

non-exempt employers t hat provide def‌ined benef‌it plan s to make contributions

to the Pension Benef‌it s Guarantee Fund: see Chapte r 7

14The FSRA Board i s required to establ ish an advisor y committee to advis e the CEO

on matters relate d to the Pension Benef‌its Guarant ee Fund: FSRA Act, s 10.1.

15FSRA A ct, s 11(1).

16Ibid, s 17.1. This must be provided to the Min ister of Finance and include such

content as the Min ister may require: FSCO Ac t, s 17.1(3).

17FSR A Act, s 21(2).

18Ibid, s 9(1).

19Ibid, s 9(3).

20Ibid, s 21(1).

21Ibid, s 10 (2.2).