News & Publications Results
|Pension Reform in Alberta – New Legislation in Effect September 1, 2014
On July 22, 2014 the Government of Alberta approved the much anticipated regulations (the “Regulations”) to accompany the new Employment Pension Plans Act (the “New Act”). The New Act, together with the Regulations, will come into force on September 1, 2014.
The focus of the New Act is on facilitating new plan designs and on modernizing plan governance, risk management and disclosure. Pension plan sponsors and administrators will have to be fully familiar with the legal requirements of the New Act and Regulations, including any timelines for compliance.
In the coming weeks, we will provide additional commentary and analysis of the New Act and Regulations by way of written material and in-person presentations. This Bulletin is designed to provide a high level overview of the changes being implemented by the New Act with details now provided through the release of the Regulations.
These changes include:
• New Plan Designs and Governance Structures: The New Act contemplates a wide variety of new pension plan designs and governance structures. Of particular note, the New Act permits target benefit provisions in both new and existing plans, albeit currently with some limitations. The Regulations provide the formula and the tests to be used in administering a target benefit provision, introducing the concept of the "provision for adverse deviation".
• Governance Policies: Every pension plan will be required to have a written governance policy that meets prescribed criteria. The Regulations tell us what topics must be covered in the policy including, among other things: structures and processes in place for overseeing, managing and administering the plan; authorized decision makers and their roles; performance measures; code of conduct and conflict procedures; educational and skills requirements; and internal risk management controls.
• Funding Policies: Pension plans with defined benefit or target benefit provisions will be required to have a written funding policy that meets prescribed criteria. The Regulations say that the policy must, among other things, set out funding objectives, tolerances and internal controls for material risks.
• Compliance Assessments: A pension plan’s legal administrator will be required to perform governance and rules self-assessments. The Regulations require these assessments to be performed annually.
• Solvency Reserve Accounts: A solvency reserve account for a defined benefit provision can be established exclusively for payments in respect of a solvency deficiency, with the ability to later withdraw amounts in accordance with prescribed rules. With the release of the Regulations we now know that the administrator may apply to the Superintendent for consent to withdraw an amount that is not more than 20% of the "accessible solvency excess" per year over three years.
• Disclosure: The Regulations set out a number of new disclosure statements that will be required, including for persons receiving pensions, and specify new data requirements in respect of existing disclosure statements.
• Vesting: A member’s entitlement to receive a pension will vest immediately on termination of active membership.
• Locking-in: Locking-in will be based on a threshold commuted value and will no longer be based on years of service.
• Membership Classes: Classes for pension plan membership will no longer be limited to the classes prescribed in the current regulations.
• Termination and Wind-up: Partial terminations and wind-ups will be eliminated.
Although the release of the Regulations represents a significant milestone in Alberta’s pension reform initiative, the process is not quite complete. Bill 10, the Employment Pension (Private Sector) Plans Amendment Act, 2014 was introduced in the Alberta Legislature this April and proposed several amendments to the New Act. While many of the amendments in Bill 10 are minor and technical, there are a number that are more substantive, including provisions that would allow annuity buy-outs and permit conversions of accrued defined benefits to target benefits.
In response to feedback, the Alberta government decided to refer Bill 10 to the Standing Committee on Alberta’s Economic Future for additional review, with the Committee expected to report back in early fall, 2014. In the interim the Government is still proceeding to implement the New Act. However, the legislation taking effect on September 1 will not include any of Bill 10’s amendments, whether minor or substantive.
With some exceptions, the New Act reflects an intention to harmonize pension rules between Alberta and British Columbia. Accordingly, it is noteworthy that amending legislation similar to Bill 10 has already received royal assent in B.C.
For more information, please contact a member of our Pensions and Employee Benefits Group.
|Province Releases Kitimat Airshed Study
On July 18, 2014 the Province of British Columbia released the long-awaited Kitimat Airshed Study (though completed on April 25, 2014, the study was not previously released pending review).
Read more here.
|Supreme Court of Canada Confirms Provincial Power to Take Up Lands under Treaty – Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48
Toby Kruger, Keith Bergner, John Olynk and Lauren Cook discuss the Supreme Court of Canada's important Aboriginal law decision in Keewatin v. Ontario (Natural Resources), 2014 SCC 48. The decision confirms the power of Ontario, along with other provincial governments, to manage natural resources over lands subject to numbered treaties. Treaty 3 is one of the historical, numbered treaties entered into between Canada and First Nations in the late 1800s and early 1900s whereby signatory First Nations surrendered their Aboriginal rights and title to lands they traditionally used in return for treaty rights, including the right to hunt and fish.
Read more here.
|“Project Development in British Columbia: Engagement with Aboriginal Groups as a Threshold Issue,” Global Investor’s Guide: British Columbia (expected publication in September), Author||07.7.14|
|Developing the North: Poised to expand, but challenges are complex
In this article, "Developing the North," Christine Kowbel discusses the challenges and opportunities faced by resource projects in northern Canada.
|From Mooses to Molasses: Oil and Gas Rights in Canada: Dealing with the Crown and Freeholders||27.6.14|
|L&E Bulletin: SCC Decision on Statutory Freeze Provisions in Labour Legislation
Today, the Supreme Court of Canada provided guidance on the proper interpretation and application of damages for breaches of statutory freeze provisions in labour legislation. These provisions prevent employers from changing terms and conditions of employment after a certification application is made by a union in respect of its employees or during the bargaining process. This case is significant to employers—the Court held that any change to the terms or conditions of employment during a statutory freeze can only be made if the change is consistent with the employer’s past management practices or it is a change a reasonable employer would have made in the same circumstances. The change cannot be made because of the arrival of the union.
In the case before the Court, United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., Wal-Mart had opened a store in Jonquiere, Quebec, in 2001. The UFCW certified a unit of employees at the location in August 2004. The parties attempted to negotiate a collective agreement but failed. In February 2005, the Union applied to the applicable government ministry to appoint an arbitrator to settle the dispute. One week later, Wal-Mart told the ministry that it would be laying off all of the employees at the location for "business reasons" on May 6, 2005, although it actually did so one week earlier.
Years of litigation and recriminations followed. Wal-Mart was, among other things, accused of anti-union animus in its decision. The Union made applications under numerous sections of the Quebec Labour Code for a remedy, many of which were dismissed.
The Union also applied for a remedy based on the following section of the Code:
From the filing of a petition for certification and until the right to lock out or to strike is exercised or an arbitration award is handed down, no employer may change the conditions of employment of his employees without the written consent of each petitioning association and, where such is the case, certified association.
The arbitrator appointed to hear the application found in favour of the Union, stating that the dismissal of the employees was a breach of this section. The majority of the Supreme Court of Canada agreed. In arriving at its decision, the court expounded on the rationale for the legislation and how it should be interpreted. It noted that similar legislation is found in each provincial jurisdiction, as well as in the federal jurisdiction, and that its interpretation of the Quebec legislation would be applicable throughout Canada.
The court gave the following guidance about this type of legislation:
• "[T]he purpose of [the statutory provision] in circumscribing the employer’s powers is not merely to strike a balance or maintain the status quo, but is more precisely to facilitate certification and ensure that in negotiating the collective agreement the parties bargain in good faith".
• "The ‘freeze’ on conditions of employment codified by this statutory provision limits the use of the primary means otherwise available to an employer to influence its employees’ choices: its power to manage during a critical period".
• "By circumscribing the employer’s unilateral decision-making power in this way, the ‘freeze’ limits any influence the employer might have on the association-forming process, eases the concerns of employees who actively exercise their rights, and facilitates the development of what will eventually become the labour relations framework for the business."
• "[T]he true function of [the provision] is to foster the exercise of the right of association".
• The provision… "gives employees a substantive right to the maintenance of their conditions of employment during the statutory period".
• "[T]he prohibition for which [the provision] provides will apply regardless of whether it is proven that the employer’s decision was motivated by anti-union animus".
• "The essential question in applying s. 59 is whether the employer unilaterally changed its employees’ conditions of employment during the period of the prohibition." The onus is on the union to prove that a unilateral change has been made.
• A change in a "condition of employment" should be broadly interpreted. The "condition of employment" concept encompasses "anything having to do with the employment relationship on either an individual or a collective level" and includes the right to continued employment.
• The right for an employee to be free from any change during the freeze is not absolute as the employer always has the power to manage its business. An employer may, therefore, terminate an employee’s employment "if it does so for legitimate reasons within the meaning of the law." However, in the context of a statutory freeze, any legitimate reason must also "be consistent with the employer’s normal management practices."
• A change can be found to be consistent with the employer’s "normal management policy" if:
(1) it is consistent with the employer’s past management practices or, failing that,
(2) it is consistent with the decision that a reasonable employer would have made in the same circumstances. In other words, a change that would have been made but for the union organization or collective bargaining.
• "In all the general labour relations schemes in Canada, therefore, although the employer does not lose its right to manage its business simply because of the arrival of a union, it must, from that point on, exercise that right as it did or would have done before then."
The Court concluded by finding that Wal-Mart’s termination of all the location’s employees was not consistent with its past management practices, restoring the arbitrator’s decision, and remitting the matter back to the arbitrator to assess damages flowing from the breach.
|Labour and Employment Law Bulletin: Changes to Temporary Foreign Worker Program Announced
Employment Minister Jason Kenney and Immigration Minister Chris Alexander today announced significant reforms to the Temporary Foreign Worker Program (“TFWP”). The TFWP is being reorganized into two streams: the TFWP administered by Employment and Social Development Canada (“ESDC”) and the International Mobility Program administered by Citizenship and Immigration Canada (“CIC”). The changes to the TFWP reinforce the federal government’s position that the TFWP should be a program of last and limited resort for employers.
Temporary Foreign Worker Program
The changes to the TFWP include the following:
• The Labour Market Opinion process is replaced by a Labour Market Impact Assessment ("LMIA") process which will require additional information from employers about their recruitment efforts. ESDC will refuse to process applications where temporary foreign workers may have a negative effect on the Canadian labour market.
• Effective immediately, the processing fee for the LMIA will increase from $275 to $1,000 per position. An additional "privilege fee" of $100 may also be put into effect to offset the costs of investments in skills and job training.
• The TFWP will be administered based on wage instead of occupational classification. Temporary foreign workers who are paid at less than the reported provincial/territorial median wage will be considered low-wage. For example, the median hourly wage in British Columbia is $21.79, in Alberta is $24.23 and in the Northwest Territories is $32.53. Workers paid below the median rates will be considered to be in low-wage positions.
• A cap will be placed on the number of low-wage temporary foreign workers per worksite location. An employer applying for a new LMIA who has 10 or more employees will be subject to a temporary foreign worker cap of 10% of the workforce at a location. This cap will be phased in until July 2016 for employers who are currently over the 10% cap.
• The moratorium on the food services industry is lifted. However, effective immediately, ESDC will not process LMIA applications for specified occupations in the accommodation, food services and retail trade sectors in economic sectors where the unemployment rate is at or above 6%.
• The maximum duration for a work permit for low-wage positions will be reduced from two years to one year effective immediately. The government has also announced that the total duration that a temporary foreign worker in a low-wage position may remain in Canada will be reduced from four years but has not yet identified the new maximum. This change will come into effect in the summer of 2015.
• For high-wage positions, the employer will be required to submit a transition plan with the LMIA application to identify steps to be taken to reduce reliance on temporary foreign workers over time.
• LMIA applications for positions in highest demand (skilled trades) occupations, highest paid occupations (top 10% in a province or territory), or shortest duration occupations (120 calendar days or less) will be processed within 10 business days.
• Exceptions which were in place for pilots will be tightened.
• Enforcement activities will be increased. One in four employers using the TFWP will be inspected each year. Beginning in the fall 2014, fines of up to $100,000 may be imposed on employers who violate the terms of the TFWP.
• There are certain exemptions from the reforms for the on-farm primary agriculture and live-in caregiver programs.
International Mobility Program
• The International Mobility Program (IMP) will include all work permit applications that are LMIA-exempt, such as work permits under international agreements such as NAFTA and under working holiday programs.
• In the summer of 2015, a compliance fee of $230 will be put into effect where a work permit is employer specific and LMIA-exempt in addition to the work permit processing fee. A "privilege fee" of $100 will be put into effect for open work permits to allow for improved data collection on the employment of open work permit holders and to increase awareness of Canadians of the opportunities to live and work abroad.
• The government will undertake a comprehensive review of work permits which are LMIA-exempt. New and more restrictive guidelines for intra-company transferees with specialized knowledge have been put into effect.
|Gary Rose Joins Lawson Lundell as Banking and Debt Finance Partner
Lawson Lundell LLP is pleased to welcome Gary Rose, a leading banking and finance lawyer, as a partner based in the firm’s growing and active Calgary office.
Gary brings 25 years of experience working in the banking and finance sector as a banker and lawyer. Prior to beginning his successful legal career, Gary worked in branch and area management and as a commercial lender with two of Canada's largest banks.
"We are very pleased to have Gary join our Calgary office and to support our strong and expanding banking practice across Western Canada," said Valerie Mann, Managing Partner at Lawson Lundell. "The addition of Gary speaks to the continued momentum our Calgary office is experiencing. We are confident that his significant experience working with banks and other lenders, both as a lawyer and a commercial lender, will provide invaluable insight into our clients’ needs."
Gary’s practice includes advising banks and other lenders in matters related to their corporate and commercial lending activities. In addition, Gary represents numerous corporations and partnerships with respect to their debt financing arrangements, from the pre-term stage through completion. Prior to joining Lawson Lundell, Gary was the regional managing partner in the Calgary office of a national law firm.
About Lawson Lundell’s Banking and Debt Finance Group:
Lawson Lundell’s Banking and Debt Finance Group is highly experienced in a wide range of complex and sophisticated debt-based financing transactions. We act for a broad range of lender clients, from traditional financial institutions such as banks, trust companies, credit unions and insurance companies to other financial service providers such as merchant banks, private equity funds, mezzanine lenders and equipment lessors. We act for these lenders in the full range of debt financing and credit-related transactions in which they become involved. www.lawsonlundell.com
|Canadian Association of Counsel to Employers, Contributor to the Handbook||09.6.14|
|Will Roberts profiled in Financier Worldwide
Will Roberts was recently profiled in Financier Worldwide's Bankruptcy & Restructuring Handbook. This handbook includes profiles of leading experts in the field of corporate bankruptcy and restructuring from around the world. The profiled experts have acted for and advised private and public corporations, investment funds, lenders, unsecured creditors and debtors, in addition to many other entities.
|Canada's British Columbia Supreme Court Rules B.C. Privacy Act Trumps Facebook's Jurisdiction Selection Clause||01.6.14|
|Pension and Benefits Law Bulletin: CAPSA Guideline no. 8 - Defined Contribution Pension Plans Guideline
On March 28, 2014, the Canadian Association of Pension Supervisory Authorities (CAPSA) released new Guideline #8 “Defined Contribution Pension Plans Guideline” to clarify certain best practices for defined contribution (DC) pension plan administrators. This new guideline is intended to supplement, and not replace, the requirements set out in CAPSA Guideline #3 “Guidelines for Capital Accumulation Plans”. Although CAPSA Guidelines are not law, they provide pension plan administrators with a useful standard of best practices.
The new guideline is notable in that it elaborates on the responsibilities of DC plan members, such as in respect of investment selection (if applicable) and selecting from options provided on termination. It also characterizes member communication requirements differently depending on the stage of a DC plan member’s career. The new guideline was released with an accompanying reference document providing information on the various regulated retirement products available to DC plan members in the payout phase.
Specifically, the new guideline:
• provides a summary of the various CAPSA guidelines lready applicable to DC plans (#3, 4, 5 and 6);
• sets out responsibilities of the plan administrator, mployer, plan sponsor, third-party service providers, fund holder and plan members, all with respect to DC plans;
• gives plan administrators guidance regarding the tools nd other communications they should provide to DC lan members at various stages of the members’ careers (during the accumulation phase, approaching the payout phase and during the payout phase); and
• provides guidance on what may constitute an adverse amendment for DC plans.
|Labour & Employment Law Bulletin: Who is an “employee” under the British Columbia Human Rights Code?
The Supreme Court of Canada has provided some important guidance regarding who qualifies as an "employee" under the British Columbia Human Rights Code in the case of McCormick v. Fasken Martineau DuMoulin LLP.
The case centred around a complaint filed with the British Columbia Human Rights Tribunal by Mr. McCormick, an equity partner at Fasken, alleging that the requirement to divest and retire discriminated against him as an “employee” on the basis of his age. While the Tribunal found that Mr. McCormick was an “employee” for the purposes of human rights legislation, its decision was eventually overturned by the British Columbia Court of Appeal. In upholding the Court of Appeal’s decision, the Supreme Court of Canada found that the factors determinative of an employment relationship are the extent to which an individual is controlled by, and dependent on, the alleged employer.
|International Comparative Legal Guide to: Corporate Governance 2014 (Canada)
In this Guide, Rita Andreone, QC and Michael Lee contribute a chapter discussing corporations in Canada, with a focus on public companies and with the intention that private corporations will find it useful in structuring and measuring their own governance frameworks.
|Doing Business in Western Canada
This guide has been prepared by Lawson Lundell as a concise resource outlining certain key relevant laws and regulations that companies should consider when doing business in Western Canada.
|The Crown’s Duty to Consult and the Role of the Energy Regulator
Today, for many Energy Regulators, project proponents, Aboriginal groups and intervenors, issues surrounding Aboriginal rights and title and the Crown’s duty to consult Aboriginal peoples have become a critical focus in the regulatory approval processes for major (and not-so-major) projects. In his article, "The Crown’s Duty to Consult and the Role of the Energy Regulator," published in Energy Regulation Quarterly, Keith Bergner examines the role of the Energy Regulatory in respect of the Crown’s duty to consult.
|Labour & Employment Law Bulletin: Privacy Commissioner’s Report on Police Information Checks Released
On April 15, 2014, the Office of the Information and Privacy Commissioner for British Columbia (the “Privacy Commissioner”) issued a report regarding the use of police information checks in British Columbia (the “Report”).
|"Selling an entire strata building." Western Investor, April 2014, Author||15.4.14|
|"Tech startups: How law firms are getting their business", Lexpert, April 2014
In this article, Val Mann discusses how law firms should handle being approached by an early-stage entrepreneur. According to Val, when she is approached "she conducts an informal vetting process to make sure she understands the business idea, then talks to people at incubators and in the venture and angel communities."