Scott Sweatman | May 07, 2012
On April 30, 2012, the B.C. government introduced Bill 38, the Pension Benefits Standards Act (PBSA). The bill is the long-awaited result (for B.C.) of the 2008 report from the Joint Expert Panel on Pension Standards (JEPPS)—an independent expert panel established by the finance ministers of Alberta and British Columbia.
JEPPS’ mandate was to review pension legislation in the two provinces and make recommendations for pension reform.
Many aspects of the new legislation take a more principles-based approach than the current act and will be heavily dependent on the final regulations once they are released.
Alberta is expected to introduce new pension legislation that will be substantially similar to Bill 38; JEPPS recommended that both provinces harmonize their respective pension laws, so changes discussed below should be broadly applicable in both B.C. and Alberta.
New plan designs
Bill 38 introduces new plan designs and design features, many of which incorporate recommendations contained in the JEPPS report. Of note are the following:
- A negotiated cost plan is defined as a plan established under a collective agreement where contributions are determined and limited by the collective agreement.
- The jointly sponsored plan establishes a framework (subject to details to be set out in forthcoming regulations) for plans containing a “benefit formula provision,” in which participating employers and employees are required to make contributions to meet funding requirements. Responsibility for plan governance is shared between the participating employers and active plan members.
- A target benefit plan is a plan that establishes a formula by which the amount of pension is predetermined and provides that the accrued pension may, by amendment, be reduced or increased and the contributions adjusted accordingly. There is no requirement that target benefit plans be restricted to unionized collectively bargained workforces.
Bill 38 also grants the superintendent discretion to designate an existing plan as either a “collectively bargained multi-employer plan,” a “non-collectively bargained multi-employer plan” or a “single employer plan.” This new power appears to contemplate an existing plan adopting new design features provided in Bill 38 and, for instance, changing from a negotiated cost plan to a plan containing target benefit provisions. This should be of interest to plan sponsors looking to vary the pension deal on a go-forward basis.
Bill 38 does not prescribe the specific entities that may be the plan administrator, instead defining the administrator simply as the person responsible for administering the plan in accordance with the PBSA.
Moreover, administrators will now be expected to act in a fiduciary capacity to members and others entitled to benefits.
This change aligns B.C. with similar provisions under Alberta’s current legislation. Plan administrators will be required to establish governance policies and, for plans with a benefit formula, a written funding policy that must be provided to the plan actuary. This change is consistent with the recent CAPSA Guideline No. 7, Pension Plan Funding Policy Guideline and the JEPPS recommendations.
Administrators will also be required to assess their plan administration in accordance with the regulations for funding, investment and trustee/administrative staff performance. Written records of the administration assessment must be retained by the administrator and made available to the superintendent upon request.
Details of specific funding rules for plans with benefit formula provisions will be set out in the regulations. Solvency funding relief for multi-employer plans continues to be a major concern, so we’ll have to wait to see what the regulations will say about this.
Bill 38 permits the administrator to set up “solvency reserve accounts” exclusively for depositing solvency deficiency payments, with the ability to withdraw, by a prescribed person, “actuarial excess” in the account in accordance with the rules in the regulations—despite any wording in the plan text. Bill 38 did not adopt JEPPS’ recommendation that plan sponsors be permitted to “ring-fence” existing plan and trust provisions relating to surplus ownership and create a go-forward provision to address surplus ownership. The trapped capital concern, however, may be less of a concern assuming the solvency reserve account can be properly used.