The Status of Pension Benefits Standards Act, 1985 and Pooled Registered Pension Plans Act Deemed Trust Claims in Insolvency1
The priority of claims against insolvent employers for amounts owing under provincially-regulated pension plans and, in particular, plans governed by the Pension Benefits Act (Ontario) (the “PBA”)2, has received a great deal of analysis over the past few years. These efforts reached an at least temporary peak upon the release of the decision of the Supreme Court of Canada (the “S.C.C.”) in Sun Indalex Finance, LLC v. United Steel Workers (“Indalex”)3, in February 2013. One issue left untouched by Indalex and the analysis surrounding it, however, is that of the priority of claims for amounts owing under pension plans governed by the federal Pension Benefits Standard Act, 1985 (the “PBSA”)4 or the new federal Pooled Registered Pension Plans Act (the “PRPPA”)5. Despite the deemed trusts created by the PBSA and the PRPPA, and despite some questionable case law concerning the effect of the PBSA deemed trust in particular, in this writer’s view the answer is quite simple: in an insolvency proceeding, PBSA and PRPPA claims do not benefit from any super-priority trust or security apart from the protection explicitly created by the Bankruptcy and Insolvency Act (the “BIA”)6 and the Companies’ Creditors Arrangement Act (the “CCAA”)7.
Pension Protections under the BIA and CCAA
Priority charges in bankruptcy and receivership for a limited set of pension claims (under both PBSA plans and provincially-regulated plans) were created in July 2008 with the enactment of sections 81.5 and 81.6 of the BIA. Similar protection was added in September 2009 for BIA proposals and CCAA proceedings. Finally, with the coming into force of the PRPPA in December 14, 2012, protections for PRPPA amounts were added to the pension provisions in the BIA (for bankruptcy, receivership and proposals) and the pension provisions in the CCAA.
To take the example of receivership (and focusing on federal pensions), subsections 81.6 (1) and (2) of the BIA now read, in part, as follows:
“Security for unpaid amounts re prescribed pensions plan — receivership
81.6 (1) If a person who is subject to a receivership is an employer who participated or participates in a prescribed pension plan for the benefit of the person’s employees, the following amounts that are unpaid immediately before the first day on which there was a receiver in relation to the person are secured by security on all the person’s assets:
a) an amount equal to the sum of all amounts that were deducted from the employees’ remuneration for payment to the fund;
b) if the prescribed pension plan is regulated by an Act of Parliament,
i) an amount equal to the normal cost, within the meaning of subsection 2(1) of the Pension Benefits Standards Regulations, 1985, that was required to be paid by the employer to the fund, and
ii) an amount equal to the sum of all amounts that were required to be paid by the employer to the fund under a defined contribution provision, within the meaning of subsection 2(1) of the Pension Benefits Standards Act, 1985,
iii) an amount equal to the sum of all amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act; and
. . .
Rank of security
(2) A security under this section ranks above every other claim, right, charge or security against the person’s assets, regardless of when that other claim, right, charge or security arose, except rights under sections 81.1 and 81.2 and securities under sections 81.3 and 81.4.”
In terms of priority, pursuant to subsection 81.6(2), the pension claims charge ranks subordinate only to the BIA super-priorities in favour of unpaid suppliers, farmers (etc.) and employees. In the case of bankruptcies, BIA subsections 81.5 (1) and (2) have almost identical language to subsections 81.6 (1) and (2) with the exception that the charge in bankruptcy is also subordinate to statutory deemed trusts in favour of the Crown for source deductions (as preserved by subsection 67(3) of the BIA).
In terms of the scope of the charges, subparagraphs 81.5(1)(b)(i) and 81.6(1)(b)(i) refer us to subsection 2(1) of the Pension Benefits Standards Regulations, 19858, which, in turn, defines “normal cost” as “the cost of benefits, excluding special payments, that are to accrue during a plan year, as determined on the basis of a going concern valuation” (emphasis added). Sections 81.5 and 81.6 of the BIA therefore only create super-priorities for any deducted but unremitted employee pension contributions, any unpaid employer defined-plan or pooled-registered-plan contributions and any unpaid normal costs. There is no super-priority under the BIA for unfunded pension liabilities (whether they be direct claims or special payments ordered by the Office of the Superintendent of Financial Institutions).
The pension protections in restructurings are found in BIA subsection 60(1.5) and CCAA subsection 6(6), which prohibit a court from sanctioning any proposal or plan that does not ensure payment of the same pension amounts as are protected by the BIA in bankruptcies and receiverships. Pursuant to BIA subsection 65.13(8) and CCAA subsection 36(7), a court also cannot approve a going-concern sale unless the same pension amounts will be paid out of the sale proceeds (or otherwise)9.
The Federal Pension Deemed Trusts
The PBSA governs pension plans of employers that are federally regulated including, without limitation, those engaged in maritime shipping, aviation, broadcasting and banking, as well as plans of employers located in the Yukon, the Northwest Territories and Nunavut. Subsections 8(1) and (2) of the PBSA set up a deemed trust for amounts owing under a PBSA pension plan:
“Amounts to be held in trust
8. (1) An employer shall ensure, with respect to its pension plan, that the following amounts are kept separate and apart from the employer’s own moneys, and the employer is deemed to hold the amounts referred to in paragraphs (a) to (c) in trust for members of the pension plan, former members, and any other persons entitled to pension benefits under the plan:
(a) the moneys in the pension fund,
(b) an amount equal to the aggregate of the following payments that have accrued to date:
i) the prescribed payments, and
ii) the payments that are required to be made under a workout agreement; and
(c) all of the following amounts that have not been remitted to the pension fund:
i) amounts deducted by the employer from members’ remuneration, and
ii) other amounts due to the pension fund from the employer, including any amounts that are required to be paid under subsection 9.14(2) or 29(6).
Where bankruptcy, etc., of employer
(2) In the event of any liquidation, assignment or bankruptcy of an employer, an amount equal to the amount that by subsection (1) is deemed to be held in trust shall be deemed to be separate from and form no part of the estate in liquidation, assignment or bankruptcy, whether or not that amount has in fact been kept separate and apart from the employer’s own moneys or from the assets of the estate.”
Within the scope of this PBSA deemed trust are, among other amounts, any special payments prescribed to meet solvency requirements due on plan termination (pursuant to PBSA subsection 29(6)). The PBSA deemed trust is therefore more expansive than the protections provided in the BIA and the CCAA, which, as explained above, exclude special payments.
Pooled registered pension plans are defined-contribution pension plans, administered by financial institutions, for employees and self-employed persons who do not have access to workplace pension plans. The PRPPA governs pooled plans in federally-regulated industries and any such plans available to workers or the self-employed in the Yukon, the Northwest Territories and Nunavut. Section 31 of the PRPPA creates the deemed trust:
“Amounts deemed to be held in trust
31. (1) An employer must ensure that it keeps separate and apart from its own money all of the following amounts that have not been remitted to the administrator:
(a) amounts deducted by the employer from employees’ remuneration;
(b) amounts of employer contributions; and
(c) any other amounts required to be remitted to the administrator.
The employer is deemed to hold those amounts in trust for members of the plan.
If bankruptcy, etc., of employer
(2) In the event of the winding-up, assignment or bankruptcy of an employer, an amount equal to the amount that by subsection (1) is deemed to be held in trust is deemed to be separate from and form no part of the estate in liquidation, assignment or bankruptcy, whether or not that amount has in fact been kept separate and apart from the employer’s own moneys or from the assets of the estate.”
Unlike the PBSA deemed trust amounts, the amounts subject to the PRPPA deemed trust are limited to amounts already protected in the BIA and CCAA. This can largely be explained by the fact that pooled registered pension plans are, by definition, defined contribution rather than defined benefit plans. If, for example, we compare the PRPPA deemed trust to the protections in receivership given by the provisions of BIA section 81.6 excerpted above, we see that: the unremitted source deductions covered by PRPPA paragraph 31(1)(a) are already covered by BIA paragraph 81.6(1)(a); the employer contributions covered by PRPPA paragraph 31(1)(b) are covered by BIA paragraph 81.6(b)(ii); and the other amounts required to be remitted to the plan administrator, covered by PRPPA paragraph 31(1)(c), are covered by the new BIA paragraph 81.6(b)(iii).
The important points to note about the deemed trust language in both PBSA subsection 8(2) and PRPPA subsection 31(2) are: (i) that the deemed trusts only arise upon the occurrence of certain triggering events (bankruptcy, liquidation or winding-up); and (ii) that there is no explicit language giving the deemed trusts priority over other security interests.
Do the PBSA or PRPPA Create Protections in Addition to Those in the BIA and CCAA?
As discussed above, the PRPPA deemed trust does not appear to extend to any amounts beyond those already protected under the BIA and CCAA, but the PBSA deemed trust is broader in its scope.
In answering the question of whether the PBSA deemed trust creates protections for pension claims beyond those found in the BIA and CCAA, we should note, first, that the fact that the PBSA deemed trust is a creature of statute is not fatal to it in insolvency. Since the PBSA deemed trust is not a trust in favour of the Crown, it is not reversed by BIA subsection 67(2). And, although there is a long line of case law stating that BIA paragraph 67(1)(a) does not exclude property subject to a provincial statutory deemed trust from the estate of a bankrupt, the reasoning of such cases would not apply to property subject to deemed trusts created by federal statute.
The deemed trust language in subsection 8(2) of the PBSA, unchanged since the enactment of the PBSA in 1986, is largely the same as the former deemed trust language in the Income Tax Act (the “ITA”)10 that the S.C.C., in Royal Bank v. Sparrow Electric Corp. (“Sparrow Electric”)11, held did not create a priority over a general security interest properly perfected under provincial personal property security law. As stated by Justice Iacobucci for the majority in Sparrow Electric:
“98 It is open to my colleague to distinguish the fact situation in this appeal from the hypothetical priority contests I have mentioned on the ground that the Crown’s interest in the inventory is unlike other charges against inventory in that it depends on the fictional device of deeming. What makes this case different, it might be said, is that the ITA deems to have been done what could have been done. On this understanding, it does not matter that the inventory was not actually sold and the proceeds were not actually remitted to the Receiver General, because ss. 227(4) and 227(5) of the ITA deem these things to have been done. But in my view, this answer cannot succeed because the inventory was not an unencumbered asset at the moment the taxes came due. It was subject to the respondent’s security interest and therefore was legally the respondent’s and not attachable by the deemed trust. As Gonthier J. himself says:
... [subsection 227(4)] does not permit Her Majesty to attach Her beneficial interest to property which, at the time of liquidation, assignment, receivership or bankruptcy, in law belongs to a party other than the tax debtor.
99 The deeming is thus not a mechanism for undoing an existing security interest, but rather a device for going back in time and seeking out an asset that was not, at the moment the income taxes came due, subject to any competing security interest. In short, the deemed trust provision cannot be effective unless it is first determined that there is some unencumbered asset out of which the trust may be deemed. The deeming follows the answering of the chattel security question; it does not determine the answer.”
Amendments to the ITA (at subsections 227(4) and (4.1)) were made in 1998 in response to Sparrow Electric. These amendments had two main features: first, language was added to the effect that the deemed trust attached notwithstanding any other security interest (other than interests specifically prescribed by the regulations); and, second, the insolvency event trigger for the deemed trust was removed so that the deemed trust arose immediately upon the amounts becoming payable12. Similar changes were made at the same time to the deemed trust provisions in section 23 of the Canada Pension Plan (the “CPP”)13 and section 86 of the 1996 Employment Insurance Act (the “EIA”)14, and would be made in 2000 to section 222 of the Excise Tax Act (the “ETA”)15.
In contrast, although there were extensive amendments made to section 8 of the PBSA in 1998 and 2010 (as well as amendments made by the PRPPA in 2012), none of these touched subsection 8(2). No explicit priority language was ever added and the insolvency event trigger remains to this day. Parliament therefore seems intent not to create any super-priority in the PBSA apart from what it created for PBSA plans in the 2008 and 2009 amendments to the BIA and CCAA.
The S.C.C.’s Sparrow Electric decision was released on February 27, 1997. Shortly prior, on January 9 of that same year, the Ontario Court of Justice, General Division (Commercial List) released a decision in Neal v. Toronto Dominion Bank (“Neal”)16 which held that a general security interest ranked subordinate to a deemed trust claim under the PBSA. The court in Neal followed the S.C.C.’s 1980 decision in Dauphin Plains Credit Union Ltd. v. Xyloid Industries Ltd. (“Dauphin Plains”)17 which held that a general security interest was a floating charge, which only became crystallized upon enforcement, and which, therefore, did not rank ahead of deemed trust claims under the CPP or the Unemployment Insurance Act, 1971. What was not raised in Neal, but had, by that time, already been addressed by the Alberta Court of Appeal in its Sparrow Electric decision, was the fact that Dauphin Plains was decided prior to the enactment of a Personal Property Security Act in the relevant jurisdiction (Manitoba). In its Sparrow Electric decision, the Alberta Court of Appeal held that a security interest properly perfected under the Manitoba Personal Property Security Act was a fixed and specific charge. The S.C.C. in Dauphin Plains had held that deemed trust claims for pension plan and unemployment insurance deductions did not rank ahead of a fixed and specific charge like it did a floating charge:
“25 . . . the claim for pension plan and unemployment insurance deductions cannot affect the proceeds of realization of property subject to a fixed and specific charge. From the moment such charge was created, the assets subject thereto, were no longer the property of the debtor except subject to that charge. The claim for the deductions arose subsequently and thus cannot affect this charge in the absence of a statute specifically so providing. However, the floating charge did not crystallize prior to the issue of the writ and the appointment of the receiver. In the present case it makes no difference which of the two dates is selected, both are subsequent to the deductions.”
Following this reasoning in Dauphin Plains, the Alberta Court of Appeal held that deemed trust claims under the ITA did not rank ahead of a general security interest perfected under provincial personal property security law because such a security interest was a fixed and specific charge.
It therefore appears that the pension claims priority aspect of Neal was bad law when it was made, since the decision did not take into account the effect of the Personal Property Security Act (Ontario) (the “PPSA”)18 nor consider, let alone follow, the Alberta Court of Appeal’s Sparrow Electric decision. In any event, the S.C.C.’s subsequent decision in Sparrow Electric (upholding the Alberta Court of Appeal’s ruling) shows conclusively that the pension priority reasoning in Neal is fatally flawed.
The above application of the Sparrow Electric reasoning to the PBSA deemed trust yields the same results as application of common rules of statutory interpretation. Given that the pension provisions of the BIA and CCAA came into force much later than section 8 of the PBSA, normal interpretation would require that the later legislation be deemed to be remedial in nature. Likewise since these provisions of the BIA and CCAA are the more specific provisions, normal interpretation would take them to have precedence over the general. Finally, the limited scope of the protection given to pension claims in the BIA and the CCAA would, by application of the doctrine of implied exclusion, suggest that Parliament did not intend there to be any additional protection19. In enacting BIA subsections 60(1.5) and 65.13(8) and sections 81.5 and 81.6 and CCAA subsections 6(6) and 36(7), while not amending subsection 8(2) of the PBSA (by adding explicit priority language or by removing the insolvency trigger), Parliament demonstrated the intent that pension claims would have protection in insolvencies and restructurings only to the limited extent set out in the BIA and CCAA.
There are three additional hurdles for anyone who wishes to assert a PBSA deemed trust claim against an insolvent company for amounts not otherwise protected under the BIA or CCAA. First, in the case of a bankrupt company, BIA section 136 contains no spot on the priority scheme for pension claims. Second, by the operation of BIA subsection 66(1), the section 136 priority scheme also applies to Division I proposals20. Third, as commented on, in obiter, by Justice Farley in United Air Lines Inc.21, the insolvency trigger in subsection 8(2) of the PBSA refers only to “liquidation, assignment or bankruptcy,” but not to restructuring. Thus, even, if the PBSA deemed trust was sufficient to otherwise prime secured creditors, there is doubt whether the deemed trust would even arise in a BIA proposal or CCAA plan.
Although the PBSA deemed trust covers classes of pension claims not protected in the BIA or CCAA, the archaic language of this deemed trust does not create an interest that can prime a properly perfected contractual security interest. The PBSA deemed trust therefore does not provide additional protection or priority for pension claims against an insolvent employer (beyond the protections provided in the BIA and CCAA). There is thus no parallel between the protection provided by the PBSA deemed trust and any protection that might be provided by the PBA deemed trust (in conjunction with subsection 30(7) of the PPSA), as dealt with in Indalex22. These limits to the PBSA protection do not appear to be an oversight by Parliament as the PBSA is one of the very few federal deemed trust statutes that was not amended in response to Sparrow Electric.
Even though the PRPPA subsection 8(2) deemed trust language largely tracks the analogous language in the PBSA, the amounts actually covered by the PRPPA deemed trust do not appear to extend beyond the amounts already protected in the BIA and the CCAA, and thus the effect of the PRPPA deemed trust in insolvency in relation to secured claims is likely a moot point. That being said, a number of provinces are expected to introduce their own pooled registered pension plan regimes, and, as a result of these and the PRPPA regime, a great number of Canadian workers will likely have access to pensions where they never did before. The corollary is that a great number of Canadian employers will become indebted to pension plans where they never were before (especially small and medium enterprises, relatively more prone to insolvency). We can therefore expect the number of super-priority pension claims in insolvencies and restructurings to rise in the future.