Canada Gazette, Part I, Volume 157, Number 25: Regulations Amending the Pension Benefits Standards Regulations, 1985 (Negotiated Contribution Plans)

June 24, 2023

Statutory authority
Pension Benefits Standards Act, 1985

Sponsoring department
Department of Finance

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Executive summary

Issues

Negotiated contribution plans

All federally regulated defined benefit (DB) pension plans must meet both solvency and going concern funding requirements. Negotiated contribution (NC) pension plans are a type of federally regulated multi-employer DB pension plan where the amount of employer and employee contributions are not linked to the solvency of the plan. If an active NC plan is underfunded, federal pension regulations do not require employers to make additional contributions to fund the deficit. Instead, plans typically choose to reduce benefits to address the shortfall as their other practical options are very limited. Similarly, any deficit that exists when a plan terminates would also likely result in reduced benefits for plan members and retirees. As such, solvency funding requirements can often result in benefit reductions for NC plans while they are in operation, which affects the retirement security of plan members and retirees.

Unclaimed pension balances

Under the Pension Benefits Standards Act, 1985 (PBSA), plan administrators have a fiduciary duty to ensure that each plan beneficiary is paid the pension benefits to which they are entitled. So long as the obligation to provide benefits is unsatisfied, unclaimed pension balances can remain as plan liabilities indefinitely. This can prevent terminated plans from fully winding up and cause the plans to incur expenses to continue administering the unclaimed balances. Additionally, owners of unclaimed pension balances can have difficulties tracking down their pension funds, especially if the employer that used to administer the plan has ceased to exist and/or the plan has been terminated.

Background

The federal PBSA and its regulations apply to pension plans that are linked to employment that falls under federal jurisdiction, such as work in connection with navigation and shipping, banking, interprovincial transportation and communications, employment in certain federal Crown corporations, and all private sector employment in Yukon, the Northwest Territories and Nunavut. Approximately 7 per cent of private pension plans in Canada are federally regulated. The remaining 93 per cent are provincially regulated. The PBSA and its regulations do not apply to the federal public service, Canadian Forces or Royal Canadian Mounted Police pension plans.

The Office of the Superintendent of Financial Institutions (OSFI) is responsible for the supervision of federally regulated pension plans under the PBSA. Plan administrators are responsible for the administration of their pension plan and for ensuring that their plan complies with the PBSA and its Regulations, and with the terms of the plan.

Federally regulated pension plans are typically either DB or defined contribution (DC). Under a DB plan, employers and employees contribute to the plan and plan members receive a set level of regular payments from the plan after they retire until they die, usually based on their salary and years of service. Under a DC plan, employer and employee (if any) contributions are usually a fixed percentage of salary and the account balance at retirement is determined based on accumulated contributions and investment income.

Federally regulated DB plans are subject to strict funding rules to safeguard pension security. They are required to meet minimum funding standards using two different sets of assumptions. The first is “going concern,” which assumes the plan continues to operate indefinitely. The second is “solvency,” which assumes the plan is terminated and must pay out all benefits immediately. These funding requirements help ensure that plans have sufficient assets to provide all pension benefits to plan members and retirees, both while the plan is ongoing as well as in the event of plan termination. The PBSA requires plans to be fully funded over time and, when underfunded, to eliminate any deficit over a set period of time: five years for solvency deficits and 15 years for going concern deficits.

As part of Budget 2021, the government introduced legislative amendments to establish a revised framework for multi-employer NC pension plans that strengthens plan governance, transparency, and sustainability of benefits and to clarify existing provisions in section 10.3 of the PBSA regarding the unclaimed pension balances of individuals who cannot be located.

Negotiated contribution plans

NC pension plans are a type of multi-employer DB plan where contribution amounts are fixed by an agreement and employers are only required to contribute the amount set out in the agreement. Due to the limited nature of the negotiated contributions of participating employers, the underlying employer liability for NC plans is fundamentally different from that of single employer DB plans. Underfunded NC plans do not require additional contributions to fund the deficit, and will typically need to reduce plan members’ and retirees’ pension benefits (either for future or past service) to address shortfalls. There are 14 active federally regulated NC plans, with approximately 45,000 plan members, retirees and other beneficiaries. This represents approximately 4 per cent of federally regulated plans with defined benefit provisions and approximately 4 per cent of plan members, retirees and other beneficiaries of these plans.

Unclaimed pension balances

Unclaimed pension balances arise when a pension benefit is supposed to be paid under the terms of a plan or legislation, but the person entitled to the benefit has not claimed it and cannot be located. Unclaimed pension balances may arise when a plan is terminated or when the plan is required to start making payments to a beneficiary.^{footnote 1}

Unclaimed pension balances most frequently arise when the beneficiaries are “unlocatable” (i.e. the plan administrator does not have their current contact information) and therefore cannot be informed or reminded that they are entitled to their pension benefits. As plan administrators have a fiduciary duty to ensure that each plan beneficiary is paid the pension benefits to which they are entitled, unclaimed pension balances can remain as plan liabilities indefinitely. This can prevent terminated plans from fully winding-up and cause the plan to incur continued administrative expenses. In addition, in the instances where the plan has been terminated or the employer no longer exists, owners of unclaimed pension balances can face difficulty tracking down their pension funds.

Pension plans do not specifically publicly report their number of unclaimed pension balances or unlocatable beneficiaries. It is estimated that there are currently more than 500 unclaimed pension balances in terminated federally regulated plans with an estimated value of 10 million dollars, and approximately 25 per cent of terminated plans consist wholly of the unclaimed pension balances of unlocatable beneficiaries.

The PBSA contains provisions in section 10.3 regarding the unclaimed pension balances of individuals who cannot be located. In Budget Implementation Act, 2021, No. 1, which received royal assent on June 29, 2021, legislative amendments to clarify existing provisions in section 10.3 were introduced to

• Provide that transfers of unclaimed pensions to the designated entity cannot occur without the authorization of the Superintendent of Financial Institutions;
• Provide that a transfer of pension assets (including a portion of any plan surplus), related to a person who cannot be located, to the designated entity satisfies the obligation of the plan to provide a pension benefit to that person;
• Establish that prescribed persons may make a claim for payment of a lump sum from the designated entity in respect of pension assets that were transferred to the designated entity;
• Require plan administrators to disclose prescribed information (e.g. name of the beneficiary and spouse/common-law partner, date of birth, and address on the record of the administrator) to the designated entity; and
• Allow for the designated entity to publish prescribed information related to the unclaimed pension balances it holds.

Objective

The objectives of the proposed Regulations are

• to enhance the retirement security of NC plan members and retirees by allowing active plans to offer more sustainable benefit levels for a given level of contributions; and
• to safeguard unclaimed pension balances received by the designated entity from terminated federally regulated pension plans and facilitate these funds being claimed by their owners.

Description

Negotiated contribution plans

The proposed Regulations would exempt NC plans from making extra payments if there is a solvency deficiency. Instead, the proposed Regulations would require NC plans to include a funding buffer for both normal costs^{footnote 2} and for going concern liabilities as part of enhanced going concern requirements. The minimum buffer for normal costs would be set at 5 per cent of normal costs and the buffer for going concern liabilities would be determined based on actuarial considerations by the plan administrator. NC plans would continue to be required to disclose their solvency ratio and describe the implications to plan members and retirees. However, they would no longer be required to describe the measures to bring the solvency ratio back to an acceptable level. Additionally, the proposed Regulations would set a going concern funding threshold for plan amendments, which would prohibit any amendments to improve benefits that would result in a going concern ratio of less than 1.05 (i.e. fully funded with a going concern surplus of 5 per cent).

The proposed Regulations would also prescribe the elements required in the governance and funding policies of NC plans. The governance policy would require elements such as a description of plan governance structures and processes, who has authority to make decisions, performance measures and monitoring, a process of dispute resolution, risks, as well as a code of conduct and education and skills necessary for the administrator. The funding policy would require elements such as describing the plan’s funding objectives, stability of contributions, risks, frequency of actuarial reports, as well as expectations for the going concern ratio, the amortization of unfunded liabilities, and reductions of benefits if it is necessary.

Unclaimed pension balances

The proposed Regulations would set out the information associated with unclaimed pension balances of unlocatable beneficiaries that the plan administrators must provide to the designated entity at the time of transfer. This includes information such as the name, address, date of birth, and social insurance number of the unlocatable beneficiary. The proposed Regulations would also set out the information the designated entity can publish on a public database to facilitate the search for unclaimed pension assets. The proposed Regulations would allow the designated entity to publish the last known name and address of the unlocatable beneficiary, the name and registration number of the pension plan, as well as the market value of the transferred assets. The transfer and publication of personal information of the unlocatable beneficiary pose low legal risk and is vital to the integrity and operation of the framework as it would assist individuals to identify their forgotten funds. The information that will be published by the designated entity is also consistent with the existing unclaimed properties program administered by the Bank of Canada.

Further, the proposed Regulations would specify who qualifies as an eligible claimant of unclaimed pension assets, and establish the period for how long the designated entity can administer the unclaimed assets before the funds are transferred to the Crown. Eligible claimants of the unclaimed pension assets would include the owner of the balance, any agent or mandatary of the owner of the balance, and survivors or designated beneficiary of the owner of the balance should they be deceased. The proposed prescription period for unclaimed pension balances would be 30 years for balances under $1,000 and 100 years for balances over $1,000.

Regulatory development

Consultation

From December 16, 2019, to January 31, 2020, the Department of Finance conducted a consultation with a targeted group of stakeholders including current NC plans, labour groups, retiree groups and pension industry experts on the overall revised framework for NC plans. Department officials met with the organized labour and retiree representatives, pension professionals, and law firms, and received written submissions from 20 stakeholders. Officials also met with the representatives of the Canadian Energy and Related Industries Pension Plan, who are interested in transitioning from a multi-employer defined contribution plan to an NC plan. The proposed framework received broad stakeholder support. In particular, existing NC plans, labour unions and pension industry experts expressed support for the proposed revised framework. Retiree groups were not opposed.

From June to August 2018, the Department conducted a public consultation soliciting Canadians’ views on proposals for the overall unclaimed pension balances framework for a period of 60 days. The Department received written submissions from over 20 stakeholder groups, including plan sponsors, labour groups, retirees and pension industry experts. There was broad support across stakeholder groups and no major concerns were raised on the proposed framework.

The two consultations sought stakeholder views on the overall proposed frameworks, and the details set out in the proposed Regulations were not consulted on specifically. The 30-day pre-publication comment period in the Canada Gazette, Part I, will provide an opportunity for stakeholders and other interested parties to comment on the specific details set out in the proposed Regulations.

Modern treaty obligations and Indigenous engagement and consultation

The proposed regulatory amendments are not expected to have any differential impacts on Indigenous people or implications for modern treaties, as per Government of Canada obligations in relation to rights protected by section 35 of the Constitution Act, 1982, modern treaties, and international human rights obligations.

Instrument choice

Budget 2021 introduced legislative amendments to establish a revised NC plan framework and clarify aspects of the unclaimed pension balances framework. The proposed Regulations are required to operationalize the legislative amendments. As such, no other instruments were considered.

Regulatory analysis

Benefits and costs

Benefits

Negotiated contribution plans

The proposed Regulations would remove solvency funding requirements for NC plans to help establish more sustainable benefits for plan members, retirees and their beneficiaries. Stakeholders have indicated that NC plans would benefit from the removal of solvency funding requirements as it would help to reduce the instances where ongoing NC plans were required to reduce the pension benefits of plan members and retirees in response to solvency deficits. Enhanced going concern requirements would help to protect the ongoing pension benefits of plan members and retirees in the absence of a solvency funding requirement. The required information for the governance and funding policies would improve plan transparency.

Unclaimed pension balances

The proposed Regulations would also help to safeguard unclaimed pension balances received from terminated federally regulated pension plans and facilitate these funds being claimed by their owners. The proposed Regulations would allow plan administrators of terminated federally regulated pension plans to transfer unclaimed pension balances of unlocatable beneficiaries to the designated entity as a lump sum and fully wind-up. In addition, the proposed Regulations would authorize the designated entity to publish information regarding unclaimed pension balances on the public database until the balance is claimed or transferred to the Government, which would enable Canadians to search for their unclaimed pensions and for eligible individuals to claim their funds from the designated entity.

Costs

The proposed Regulations would not impose any significant costs on pension plan sponsors, administrators, members or retirees. They would also not impose any costs on the federal government. OSFI’s supervision of pension plans operates on a cost-recovery basis and there would be no incremental costs for OSFI associated with the proposed amendments.

Stakeholders have indicated that NC plans generally have documented governance and funding policies. The proposed Regulations would not require new processes, but to document existing ones. Most plans would either already comply or would be required to make updates to their existing policies in order to comply. A few plans may be required to draft governance or funding policies. The cost to draft these documents would vary by plan but should be low given that these documents are high-level and an industry best practice. Additionally, while the minimum normal cost and going concern liability margins may introduce new costs, the exemption from solvency funding requirements would simplify the overall approach and help protect against a reduction of benefits, enhancing plan security for plan members and retirees. Removing the solvency funding requirement would allow plans to offer the maximum level of benefits that would be sustainable based on a going concern valuation, rather than basing them off of a solvency valuation. This will also help to address intergenerational equity concerns with paying benefits to current retirees below levels that would be sustainable for an operational plan. The margins would affect payment volatility while employer costs would remain fixed contributions. The proposed Regulations could help provide higher while the plan is ongoing, as well as reduce the supervisory burden for OSFI to the extent that there are fewer applications for NC plan benefit reductions. The one-time cost to transfer unclaimed assets from terminated federally regulated pension plans to the designated entity would vary, but would benefit terminated plans as it would allow them to fully wind-up. In terms of the requirement for the terminated plan to provide the designated entity with the information related to the unclaimed assets to the extent it is known, the cost to fulfill the requirement should be low given that the information would be on file and readily available. For the designated entity, the cost of implementation and operation of the proposed framework is not available.

Small business lens

Analysis under the small business lens concluded that the proposed Regulations will not impact Canadian small businesses. The proposed Regulations would change rules applicable to multi-employer NC pension plans and terminated federally regulated private sector and Crown corporation pension plans. None of the applicable plans are offered by small businesses.

One-for-one rule

The one-for-one rule does not apply as there is no incremental change in the administrative burden on business and no regulatory titles are repealed or introduced.

The proposed Regulations would remove the solvency funding requirement and introduce others related to plan administration, governance and disclosures. The governance and funding policies required under the proposed Regulations would not need to be filed with OSFI on registration or when they are amended. As such, the impact of the proposed Regulations would not likely result in an increased administrative burden on NC plan sponsors.

The proposed Regulations would also allow plan administrators of terminated federally regulated pension plans to transfer unclaimed pension assets to the designated entity. However, the transfer of unclaimed assets is not a requirement and would not impose additional administrative burden on businesses.

Regulatory cooperation and alignment

This proposal is not part of a formal regulatory cooperation initiative; however, the proposed Regulations would align with certain provincial regulations.

A number of provinces, including British Columbia, Alberta, Saskatchewan, Quebec and Ontario have fully exempted some or all multi-employer NC-type plans from solvency funding requirements. These provinces represent approximately 90 per cent of the Canadian population.

Quebec, Alberta and British Columbia currently have frameworks in place to address unclaimed pension balances. The frameworks in Quebec and Alberta apply to ongoing and terminated plans, while the one in British Columbia is available to terminated plans only.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that this proposal is unlikely to result in important environmental effects.

Gender-based analysis plus

Negotiated contribution plans

This proposal would benefit all active workers of federally regulated NC plans, as well as retirees, and other beneficiaries such as surviving spouses, regardless of identity characteristics. Employees participating in federally regulated pension plans are broadly gender-balanced, with women accounting for approximately 45 per cent^{footnote 3} of active workers participating in federally regulated private pension plans. The gender breakdown for NC plans is not available.

Unclaimed pension balances

This proposal would benefit workers and pensioners with unclaimed pension balances in terminated federally regulated pension plans. Workers and pensioners with federally regulated pension plans belong to particular age ranges (i.e. working age and seniors), and have above average incomes and educational attainment.^{footnote 4}

Implementation, compliance and enforcement, and service standards

Implementation

The Regulations on NC plans would come into force on the day on which they are registered.

The Regulations on unclaimed pension balances would come into force on the day on which section 142 of the Budget Implementation Act, 2021, No. 1, chapter 23 of the Statutes of Canada, 2021 comes into force, but if they are registered after that day, they come into force on the day on which they are registered. For full implementation, an additional approval from the Governor in Council would be sought to designate an entity to administer the framework.

The OSFI supervises federally regulated private pension plans and ensures they are in compliance with the PBSA, PBSR, and other regulations made under the PBSA, including the Regulations. The OSFI’s Superintendent is required to report to Parliament on the operations of the PBSA annually.

Contact

Kathleen Wrye
Director, Pensions Policy
Financial Crimes and Security Division
Department of Finance Canada
90 Elgin Street, 13th Floor
Ottawa, Ontario K1A 0G5
Email: re-pension@fin.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Pension Benefits Standards Regulations, 1985 (Negotiated Contribution Plans) under subsection 39(1)^{footnote a} of the Pension Benefits Standards Act, 1985 ^{footnote b}.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Kathleen Wrye, Director, Pensions Policy, Financial Crimes and Security Division, Department of Finance Canada, 90 Elgin Street, 13th Floor, Ottawa, Ontario K1A 0G5 (email: re-pension@fin.gc.ca).

Ottawa, June 15, 2023

Wendy Nixon
Assistant Clerk of the Privy Council

Regulations Amending the Pension Benefits Standards Regulations, 1985 (Negotiated Contribution Plans)

Amendments

1 (1) The definitions going concern liabilities and normal cost in subsection 2(1) of the Pension Benefits Standards Regulations, 1985 ^{footnote 5} are replaced by the following:

going concern liabilities

means the present value of the accrued benefits of a plan as determined on the basis of a going concern valuation, including

• (a) amounts due and unpaid;
• (b) in the case of a negotiated contribution plan, a provision for adverse deviations; and
• (c) in the case of any other plan, a provision for adverse deviations, if any; (passif évalué en continuité)

normal cost

means the cost of benefits that are to accrue during a plan year, as determined on the basis of a going concern valuation, excluding special payments and including

• (a) in the case of a negotiated contribution plan, a provision for adverse deviations of at least 5%; and
• (b) in the case of any other plan, a provision for adverse deviations, if any; (coûts normaux)

(2) Subsection 2(1) of the Regulations is amended by adding the following in alphabetical order:

going concern ratio

means the ratio of the going concern assets to the going concern liabilities, on the basis of the most recent actuarial report, excluding those going concern assets and going concern liabilities that are attributable to benefits paid by means of an insurance contract or an annuity, other than a revocable annuity; (ratio de continuité)

2 Paragraphs 9(4)(c) and (d) of the Regulations are replaced by the following:

• (c) if the plan is not a negotiated contribution plan and there is a solvency deficiency, by annual solvency special payments equal to the amount by which the solvency deficiency divided by 5 exceeds the amount of going concern special payments that are payable during the plan year;
• (d) if the plan is not a negotiated contribution plan and there is an additional solvency deficiency referred to in subsection (12), by additional annual solvency special payments payable from the effective date of the amendment and equal to the amount by which the additional solvency deficiency divided by 5 exceeds the going concern special payment in respect of the unfunded liability emerging from the amendment to the plan; and

3 (1) Subsection 9.3(1) of the Regulations and the heading before it are replaced by the following:

Void Amendment

9.3 (1) For the purposes of subparagraph 10.1(2)(b)(ii) of the Act, the prescribed solvency ratio level is 0.85.

(2) The portion of subsection 9.3(2) of the Regulations before paragraph (a) is replaced by the following:

(2) For the purposes of subparagraph 10.1(2)(b)(ii) of the Act, the solvency ratio following the amendment is the solvency ratio set out in the most recent actuarial report adjusted to reflect

(3) The portion of subsection 9.3(3) of the Regulations before paragraph (a) is replaced by the following:

(3) For the purposes of subparagraph 10.1(2)(b)(iii) of the Act, the prescribed solvency ratio level is 1.0

(4) Section 9.3 of the Regulations is amended by adding the following after subsection (3):

(4) For the purposes of paragraph 10.1(2)(c) of the Act, if the amendment would increase pension benefits or pension benefit credits, the going concern ratio — as adjusted to reflect the increase in going concern liabilities resulting from the amendment — must not be below 1.05 after the amendment.

4 The Regulations are amended by adding the following after section 10.991:

Funding and Governance Policies

Funding policy

10.992 For the purposes of section 10 of the Act, the funding policy of a negotiated contribution plan shall set out

• (a) the funding objectives for the plan as they relate to benefit security, benefit levels and contribution levels;
• (b) the material risks that affect the plan’s funding requirements, the tolerance for those risks and the internal controls to manage them;
• (c) the objectives and expectations for reducing pension benefits in the event that a reduction is required; and
• (d) the procedures for the use of surplus.

Governance policy

10.993 For the purposes of section 10 of the Act, the governance policy of a negotiated contribution plan shall set out

• (a) the governance structures and processes for overseeing, managing and administering the plan;
• (b) what those structures and processes are intended to achieve;
• (c) the roles, responsibilities and accountabilities of all governance participants who have authority to make decisions in respect of those structures and processes;
• (d) the performance measures and the process established for evaluating, against those measures, the performance of each governance participant;
• (e) the procedures established to ensure that the administrator and, as necessary, other governance participants have access to relevant, timely and accurate information in order to meet their fiduciary and other responsibilities;
• (f) the code of conduct and the procedure established to disclose and address conflicts of interest of the administrator;
• (g) the ongoing process established to identify the educational requirements and skills necessary for the administrator to perform their duties in relation to the plan;
• (h) the material risks that apply to the plan and the internal controls established to manage those risks; and
• (i) the process established for the resolution of disputes involving members or other persons who are entitled to benefits under the plan.

5 Paragraph 22.1(a) of the Regulations is replaced by the following:

• (a) pension benefits or pension benefit credits may need to be reduced if negotiated contributions are insufficient to meet the funding requirements under the Act; and

6 (1) Clause 23(1)(q)(i)(B) of the Regulations is replaced by the following:

• (B) except in the case of a negotiated contribution plan, a description of the measures the administrator has implemented or will implement to bring that ratio to one, and

(2) Subparagraph 23(1)(s)(i) of the Regulations is replaced by the following:

• (i) pension benefits or pension benefit credits may need to be reduced if negotiated contributions are insufficient to meet the funding requirements under the Act, and

(3) Clause 23(1.1)(f)(i)(B) of the Regulations is replaced by the following:

• (B) except in the case of a negotiated contribution plan, a description of the measures the administrator has implemented or will implement to bring that ratio to one, and

(4) Subparagraph 23(1.1)(h)(i) of the Regulations is replaced by the following:

• (i) pension benefits or pension benefit credits may need to be reduced if negotiated contributions are insufficient to meet the funding requirements under the Act, and

7 Section 23.1 of the Regulations is replaced by the following:

23.1 For the purposes of paragraph 28(1)(c) of the Act, each person referred to in that paragraph may examine

• (a) the written statement of investment policies and procedures that pertain to the plan’s portfolio of investments and loans as described in subsection 7.1(1);
• (b) the funding policy of a negotiated contribution plan described in section 10.992; and
• (c) the governance policy of a negotiated contribution plan described in section 10.993.

Coming into Force

8 These Regulations come into force on the day on which Division 8 of the Budget Implementation Act, 2021, No. 1, chapter 23 of the Statutes of Canada, 2021, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

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