Professional Discretion and the Law: Impact of Actuaries on The
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Osgoode Hall Law School of York University Osgoode Digital Commons LLM Theses Theses and Dissertations 4-19-2016 Professional Discretion and the Law: Impact of Actuaries on the Underfunding and Decline of Private Sector Single Employer Defined Benefit Pensions in Canada: How Many "Post Nortel" Pension Fiascos are Brewing in Canada? Paul Charles Walker Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/llm Part of the Public Policy Commons, and the Retirement Security Law Commons Recommended Citation Walker, Paul Charles, "Professional Discretion and the Law: Impact of Actuaries on the Underfunding and Decline of Private Sector Single Employer Defined Benefit eP nsions in Canada: How Many "Post Nortel" Pension Fiascos are Brewing in Canada?" (2016). LLM Theses. 24. http://digitalcommons.osgoode.yorku.ca/llm/24 This Thesis is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in LLM Theses by an authorized administrator of Osgoode Digital Commons. PROFESSIONAL DISCRETION AND THE LAW: IMPACT OF ACTUARIES ON THE UNDERFUNDING AND DECLINE OF PRIVATE SECTOR SINGLE EMPLOYER DEFINED BENEFIT PENSIONS IN CANADA. HOW MANY “POST NORTEL” PENSION FIASCOS ARE BREWING IN CANADA? PAUL CHARLES WALKER A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAWS GRADUATE PROGRAMME IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO APRIL, 2016 © PAUL WALKER, 2016 ABSTRACT Canada’s two-tier occupational pension plans provide public sector workers (who are nearly all registered in defined benefit plans guaranteeing them incomes for life) with more than twice as much retirement income as the vast majority of private sector workers who either have no employer sponsored pension plan at all, or are registered in defined contribution plans offering no income guarantees. Since 2000 the number of workers enrolled in private sector single employer defined benefit (DB) pension plans in Canada has declined by 500,000 from 2 to 1.5 million, while the number of public sector workers enrolled in DB plans has remained stable at approximately 3 million. This thesis focuses on the 1.5 million workers who continue to be registered in private sector single employer defined benefit pension plans. It argues that the complex and often times confusing regulatory regimes governing pension actuaries affords them too much scope for discretion, contributing to DB plan underfunding, insolvency, and retirement income losses in the hundreds of billions of dollars. In contrast to the Canadian Public Accountability Board’s external oversight of the accounting profession, the actuarial profession has remained relatively immune from such external oversight, raising legitimate concerns about the impact of actuarial discretion on pension funding estimates. Since the 2000 bear market in Canada, actuaries have consistently overestimated returns on private sector single employer defined benefit (DB) pension plan investments, lowering employer contributions below the “fully funded” level required by legislation (i.e. the value of a plan’s assets must be sufficient to meet its liabilities), to the point of causing chronic underfunding and insolvencies. Telecom giant Nortel’s 2009 bankruptcy is a prime example of opaque funding. Actuaries underestimated Nortel’s DB pension funding requirements by $1.5 billion, resulting in benefit reductions of up to 43% for 20,000 pensioners and former employees. In United Steel’s (formerly Stelco’s) 2014 restructuring, actuaries underestimated the company’s DB pension funding requirements by $840 million, triggering potential income reductions of up to 30% for 2000 employees and 10,000 pensioners. Considering that private sector single employer defined benefit pension plans must be fully funded by law, the legal issue emanating from their systemic underfunding is whether or not actuaries have been using their discretion in a manner which is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law. This thesis discusses the merits of potential legal remedies to arrest the underfunding and decline in the number of private sector single employer defined benefit pensions in Canada, including the introduction of single employer target benefit plans, increasing employers’ access to surplus, making actuaries fiduciaries, legislating external oversight, abolishing employer-actuary agency, and mandating specific discount rates. It concludes that the best legal remedy is the establishment of an independent external actuarial oversight board. ii ACKNOWLEDGEMENTS I would like to thank the members of my supervisory committee, Jinyan Li and especially Mary Condon for her openness to this project, her patience, and her supervisory support. I also wish to thank my LLM professors Liora Salter, Dayna Scott and Barbara Austin for their teaching excellence. In particular, I want to single out my parents, Charlie and Frances Walker, for their unwavering support of my academic endeavours, and it is to them I wish to dedicate this thesis. iii TABLE OF CONTENTS Abstract ii Acknowledgements iii Table of Contents iv Chapter One Introduction 1 The Concept of Defined Benefit Pension Plans and their Current Status in Canada 5 Regulatory Jurisdictions 12 Significance of DB Plan Funding Estimates 17 Chapter Summaries 18 Literature Review-Professional Discretion and the Law 20 Chapter Two Current Funding and Regulatory Regimes Governing Defined Benefit Pension Plans in Canada Overview 44 Pension Governance 45 Current Funding Status of DB Plans in Canada 48 Factors Contributing to the Decline of DB Plans 54 Actuarial Funding 62 Actuarial Methods 63 Conclusion 64 iv Chapter Three Pension Legislation, Regulations, Case Law and Professional Organizations Governing Actuarial Methods Introduction 65 Overview of Governance of Actuarial Methods 66 Federal Pension Benefits Standards Act (PBSA) and Ontario Pension Benefits Act (PBA) Funding Regulations 78 Specific Legislation and Regulations Governing Actuarial Funding 95 Conclusion 97 Chapter Four Impact of the Governance of Discount Rates on the Underfunding of Defined Benefit Pension Plans Overview of Governance of Discount Rates 99 Theory of Discount Rates 108 Legal Framework Governing Discount Rates 126 Public Policy Options for Discount Rates 131 -A Comparison of Discount Rates in the U.S., the U.K. and the Netherlands 135 - Establishment of an Independent External Oversight Board 137 Conclusion 139 Chapter Five Impact of the Governance of Actuarial Methods on the Underfunding of Defined Benefit Pension Plans Overview of Governance of Actuarial Methods 140 Pension Funding 143 Smoothing Calculations 163 Establishment of an External Oversight Board 170 v Conclusion 172 Chapter Six Impact of the Governance of Actuarial Surplus on Defined Benefit Pension Plan Funding Overview of the Governance of Actuarial Surplus 173 Major Surplus Issues 178 -Actual and Actuarial Surplus in Canada 179 -Surplus Use and Allocation 181 -Actuarial vs. Actual Surplus (Legal and Policy Issues) 184 Major Court Cases on Surplus 185 -Collins and Pension Commissioner of Ontario (1986) ONCA. 185 -Schmidt vs. Air Products of Canada Ltd. (1994) S.C.C. 186 -Monsanto Canada Inc. v. Super. Of Fin. Services (2004) S.C.C. 190 - Buschau vs. Rogers Communications (2006) S.C.C. 192 -Nolan v. Kerry (2009) S.C.C. 195 -Burke v. Hudson’s Bay Co. (2010) S.C.C. 197 -Sutherland v. Hudson’s Bay Co. (2011) ONCA. 201 -Telecommunications Employees v. Manitoba Telecom (2014) S.C.C. 204 Legislative Amendments on Surplus (ITA, Federal PBSA and Ontario PBA) 206 Pension Surplus Policy in Canada 207 Conclusion 209 Chapter Seven Target Benefit Plans The Failed Promise of the Classic Single Employer DB Plan 212 What Exactly are Target Benefit Plans? 214 Target Benefit Plan Design Options 223 vi Governance and Risk Assignment 224 Conclusion 226 Chapter Eight Conclusion Current Funding Status of Defined Benefit Pension Plans 228 Governance of Funding Valuations 233 Superintendent of Financial Services 234 Governance of Actuarial Discretion 237 Legal Remedies 240 Conclusion 246 Bibliography 247 Appendices Appendix 1-CFIB Assumptions 269 Appendix 2- Actuarial Cost Methods Used in Funding DB Pension Plans 271 Appendix 3- Federal PBSA, Income Tax Act and Ontario PBA Amendments Addressing Underfunding 275 Appendix 4- Discount Rates in Great Britain, the Netherlands, and the U. S. 286 Appendix 5- Actuaries’ Assumptions 294 Appendix 6- Regulatory Amendments to the Federal Income Tax, the Federal PBSA, and the Ontario PBA on Surplus 299 Appendix 7-Target Benefit Funding Policy 304 Appendix 8-Funding Requirements of Target Benefit Plans 306 vii CHAPTER 1-INTRODUCTION Canada’s two-tier occupational pension plans provide public sector workers (who are nearly all registered in defined benefit plans guaranteeing them incomes for life) with more than twice as much retirement income as the vast majority of private sector workers who either have no employer sponsored pension plan at all, or are registered in defined contribution plans offering no income guarantees. Since 2000 the number of workers enrolled in private sector single employer defined benefit (DB) pension plans in Canada has declined by 500,000 from 2 to 1.5 million, while the number of public sector workers enrolled in DB plans has remained stable at approximately