With the Ontario government soon to return from its summer hiatus, the A. M. Pension blog also returns. In this post, we highlight some of the developments in the area of pensions law in Ontario over the summer and early fall.
Financial Services Regulatory Authority
As many readers will know, effective June 8, 2019, the Financial Services Regulatory Authority of Ontario (“FSRA”) replaced the Financial Services Commission of Ontario (“FSCO”) as the regulator of all employer-sponsored pension plans registered in Ontario. FSRA has rule-making authority and is to operate as a principles-based regulator. Its mandate is to “promote good administration of pension plans, and to protect and safeguard the pension benefits and rights of pension plan beneficiaries.”
In August 2019, consistent with its mandate to promote good administration of pension plans, FSRA announced a new focus on regulatory filing deadlines. Specifically, FSRA announced that regulatory filings due on and after September 30, 2019 must comply with the filing requirements and prescribed timelines under the Pension Benefits Act (Ontario) (“PBA”) to ensure that summary administrative monetary penalties are not incurred. Although the PBA was amended to allow for the imposition of administrative monetary penalties effective January 1, 2018, such penalties have generally not been imposed. Please see a previous article for more information on administrative monetary penalties.
As readers will also know, FSCO has published a large number of forms, policies, guidelines and FAQs in respect of the administration of pension plans. FSRA has indicated that it is actively reviewing all regulatory directions but until it issues a new regulatory direction, all existing FSCO directions remain in force.
One such regulatory direction is Policy D050-804, Extension of Deadline for Filings with FSCO (“Filings Policy”). In June 2019, FSCO published an updated Filings Policy, effective January 1, 2018. In the Filings Policy, FSCO reminds plan administrators that the Superintendent (now CEO) will generally consider applications for filing extensions of up to a maximum of 60 days. Such applications will only be granted where there are reasonable grounds to do so. According to FSCO, further extensions can be requested but will only be granted if extraordinary grounds exist and no persons will be unduly prejudiced by the further extension. The Filings Policy now includes a reference to the potential for administrative monetary penalties if filing deadlines are not met.
Proposed Amendments to PBA
As reported in a previous article, in its 2019 Budget, the Ontario government indicated that it “was considering future legislative changes to the Pension Benefits Act to modernize the pension sector and streamline pension plan administration by permitting plans to use electronic communication as the default method.”
In August 2019, the Ontario Ministry of Finance published draft amendments to the PBA in respect of electronic communications. As indicated in the 2019 Budget, the proposed changes would permit plans to use electronic communications as the default method for sending documents to members and former members if they meet certain conditions, including:
- Administrators have provided notice to all affected members prior to applying the default method; such notice could not be delivered electronically unless the member or former member consented to accept the notice electronically.
- Affected members would be permitted to “opt-out” of receiving documents electronically at any time.
- Documents containing personal information would be required to be sent only to the intended recipient through an electronic information system that requires the recipient to identify him or herself prior to accessing the documents.
The period for submission of comments on the draft amendments has closed, but the government has yet to publish the final amendments.