Final amendments to the regulations (Regulations) under the federal Pension Benefits Standards Act, 1985 (PBSA) are to be published in the Canada Gazette on 25 March 2015. The revised Regulations follow through on several measures that were included in Bill C-9 and Bill C-47 both of which were tabled in 2010, and also contain some new measures. Our Communiqué dated 30 September 2014 describes the amendments as they were released in draft. This Communiqué updates that description based on the final version.
The coming into force date is 1 April 2015 except for the changes to the investment rules, most new disclosure requirements and the requirement for spousal consent to portability transfers, which will come into force on 1 July 2016.
The following changes to the investment rules will also apply in Alberta, British Columbia, Manitoba, Ontario and Saskatchewan where the pension legislation incorporates the federal rules automatically.
The 10% limit on investment of a plan’s assets in a single entity and the restrictions on investment in a related party will be significantly changed effective 1 July 2016. In addition the defined term “public exchange” is replaced with the term “marketplace” so that the definition encompasses various trading systems. The term “investment fund” is created to replace “mutual fund” and “pooled fund”.
The 10% Single Entity Rule
The current 10% concentration rule is based on book value. The amended Regulations will base this test on market value. The 10% limit applies to combined debt and equity with a single entity, and that the rule applies separately to each defined contribution (DC) account for which the member directs investment (a “member choice account”). The market value test applies only at the time of purchase.
The Related Party Rule
The current related party rules prohibit investment in a related party, including an employer who participates in the plan, subject to specific exemptions. One of the current exemptions is that the plan can invest (subject to any other restrictions) in securities of a related party if the securities are purchased on a public exchange. This exemption is removed.
The amended Regulations will only permit investment in a related party if the investment:
The amended Regulations will allow an administrator to engage the services of a related party for plan operation and administration (other than lending or investing) by means of a transaction under terms no less favourable than market terms and conditions or if the transaction is nominal or immaterial to the plan.
There will be a five year period from 1 July 2016 for achieving compliance with the new related party rules. In addition, if a pension plan administrator is in contravention as a result of a transaction entered into by someone other than the administrator or an entity controlled by the administrator, the administrator will have five years to comply from the date of contravention.
Variable DC Benefits
Effective 1 April 2015 the PBSA will permit a plan to pay variable benefits directly from DC provisions to members who have terminated employment and reached retirement age, subject to the consent of a spouse or common-law partner. A member (or survivor receiving variable benefits) is entitled once each year, or more frequently if the plan permits, to transfer the account balance from the plan under standard portability options.
The variable benefit calculation is prescribed by the amended Regulations. The annual variable payment amount that can be withdrawn is subject to a minimum and a maximum, consistent with the rules that apply to a life income fund. If the member fails to elect, the minimum amount will apply by default. After age 90 there is no maximum.
Disclosure for Member Choice Accounts
The PBSA will state explicitly that a pension plan can give investment choice to individuals who have DC accounts. Under the amended Regulations these DC accounts are called “member choice accounts”.
Effective 1 July 2016 disclosure to members who hold a member choice account must include a description for each investment option available to the person, at least annually, that indicates:
The statement must also describe how the person’s funds are currently invested and indicate any timing requirements that apply to making an investment choice.
It will not be necessary to address member choice accounts in a pension plan’s statement of investment policies and procedures (SIPP).
Starting on 1 April 2015 the PBSA will provide a set of rules to allow administrators to use electronic methods in order to provide required information to plan members and others. Items such as annual statements and benefit option forms will be eligible. Under the PBSA the use of electronic means is subject to the revocable consent of the recipient. The recipient will designate an “information system” for receipt of the information, to which the electronic document must be provided. The information must be capable of being retained by the recipient.
The amended Regulations outline the requirements for valid electronic delivery of documents. A recipient’s consent may be given in writing (on paper or electronically) or orally. When asking for a recipient’s consent a plan administrator must notify the recipient of the right to revoke consent at any time, of the recipient’s responsibility to provide updated information relating to the information system and of the date when consent takes effect. When a document is posted on a generally accessible information system, the administrator must provide written notice (on paper or electronically) of the document’s availability and location. Delivery is considered to have occurred when entered into or made available on the information system. However, if the administrator has reason to believe that an intended recipient has not received the document or notice, a paper copy shall be mailed (but will still be considered to have been provided when entered or made available).
Annual Statements for Inactive Members
As of 1 July 2016 the PBSA will require plan administrators to provide an annual statement to former members and their spouse or common-law partner.
Under the amended Regulations this annual statement for inactive members must show the former member’s name, the period covered by the statement, the name of the spouse or common-law partner on record and the name of the designated beneficiary on record. No other information specific to the individual is required. For a defined benefit (DB) plan with a solvency ratio less than one, the statement must provide the plan’s solvency ratio with an explanation, as is already required for active member statements.
New Annual Statement Content Requirements
There are new content requirements for annual statements provided to active and inactive members and their spouse or common-law partner.
Annual statements for all DB plans must include the plan’s solvency ratio (whether above or below one) and:
With respect to DB or DC assets that are not held in DC member choice accounts, annual statements must include:
Holders of member choice accounts receive this information along with other disclosure specific to them.
If a member is receiving DC variable benefits, details must be provided including the date of birth used to determine the minimum benefit, the minimum and maximum benefit, the amount the member is receiving and the payment frequency, information about changing elections and a list of portability transfer options.
Spouse Consent for Portability Transfers and Variable DC
The PBSA requires the consent of a member’s spouse or common-law partner if a member elects portability. (The regulator has indicated that compliance will not be required until the prescribed form becomes available.) The PBSA will also require the consent of a member’s spouse or common-law partner if a member elects to receive variable DC benefits.
The amended Regulations create new forms for this purpose effective 1 April 2015 for variable DC benefits and 1 July 2016 for other transfers. The new forms explain to the spouse or common-law partner that the member will be able to withdraw funds and that there is no requirement that the funds be used to purchase a life annuity. A consenting spouse or common law partner acknowledges that the amount available to him or her may be significantly reduced if the maximum is withdrawn each year or investment performance is poor. A consent form must be witnessed.
Standard Portability Options Include Transfer to a PRPP
Transfer to a pooled registered pension plan (PRPP) is added to the list of prescribed retirement savings arrangements to which a member who is eligible to take a portability option may transfer his or her entitlement.
Revised Prescribed Forms
The option to transfer to a PRPP is added to the prescribed application form for portability transfers. The forms for termination of employment, retirement, death and plan termination will show the solvency ratio whether or not it is below one (currently it is shown only if below one). There are also various housekeeping changes in some of the prescribed forms.
New forms are created for pension plan termination. One is a notice to be provided to members within 30 days after plan termination and the other is a benefit statement, very similar to a termination or retirement statement, that is to be provided within 120 days after plan termination. The PBSA provides that these deadlines can be varied by the Superintendent.
The PBSA establishes a definition for a negotiated contribution pension plan (NCPP). An NCPP is a DB plan where the employer contribution is fixed by agreement, statute or regulation. These plans may reduce benefits with the Superintendent’s consent despite plan terms to the contrary. Effective 1 July 2016 the Regulations require the information booklet for an NCPP to describe the funding arrangement including an indication that benefits may need to be reduced if contributions are insufficient to meet solvency standards. Annual statements must also include this information.
Regulations under the Pooled Registered Pension Plans Act (PRPPA) will be changed for harmonization with the regulations under the PBSA.. The maximum benefit payment for variable DC and life income funds under the PBSA will be replicated under the PRPPA.
The member option to transfer funds from a PRPP to a restricted locked-in savings plan will be removed, consistent with the PBSA rules. This will ensure that the member retains the potential to unlock up to 50% of their holdings from a restricted life income fund.
Only a few measures from the 2010 pension reform bills remain unaddressed. These include:
Sponsors and administrators of plans registered federally, as well as in Alberta, British Columbia, Manitoba, Ontario and Saskatchewan can now plan for compliance with the revised investment rules as of 1 July 2016 (with a further five years for related party investments). The removal of the exemption that permits investment in a related party if the securities are purchased on a public exchange will not be welcomed by those who are currently making significant use of it, notwithstanding the five year grace period for compliance.
The 1 July 2016 in force date for the new requirements for member annual statements does not specify whether the new requirements apply for statements as of the first plan year end on and after 1 July 2016 or for statements due on and after 1 July 2016. Guidance from the regulator will be needed on that point.
Despite the lack of a requirement to create a SIPP for DC member choice accounts, administrators should implement policies and procedures for selecting and monitoring investment funds for member choice accounts that are consistent with CAPSA principles for the governance of capital accumulation plans.
Mercer is pleased to see that some of its submissions are reflected in the final Regulations, notably; to clarify that the new 10% single entity investment test applies only at the time of purchase, and to remove from the related party investment rules a proposed requirement for actual investment by others in investment funds and segregated funds (to avoid hampering seeding of new funds). Having a meaningful consultation process has become a vital and important part of the pension reform process in Canada.