A case centred on the ability to access actuarial documents filed with the Ontario pension regulator may soon be heading to the Ontario Court of Appeal after a panel of judges took issue with a ruling by the information and privacy commissioner that ordered the Ministry of Finance to release the information.
In a ruling late last month, the Divisional Court ordered the privacy commissioner to reconsider a decision that allowed a construction industry union access to actuarial documents filed with the Financial Services Commission of Ontario for two other unions’ pension plans. The privacy commissioner says it plans to file a motion for leave to appeal but declined to otherwise comment on its reasoning.
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The matter revolves around releasing information during a raiding period, a time in the construction industry when unions can displace members from other unions as their individual collective agreements come to an end.
In 2013, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers requested financial statements, investment information and actuarial reports of the pension plans administered by two unions — the Bricklayers and Stonemasons Union Local 2 and the Canadian Bricklayers and Allied Craft Unions — from the Ministry of Finance.
The ministry released several documents but withheld actuarial valuations on the grounds that sharing them could potentially harm the two unions’ pension plans. In its ruling last month, the Divisional Court accepted that harm could occur. “As noted, any use of this information to encourage pension plan members to leave the union may affect the financial state of the plan,” wrote Justice Elizabeth Stewart.
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“The plan is funded by contributions made by employers based on an hourly contribution rate. If the number of working members decreases, there will be less money coming in to fund the plan’s obligations. This can become problematic as a greater percentage of plan members reach retirement. In addition, when members leave the one union to join another, they may elect to transfer the commuted value of their pension out of the plan, thus depleting the value of the plans assets used to fund pensions for the remaining beneficiaries.”
But according to Joseph Maloney, the international vice-president for Canada for the International Brotherhood of Boilermakers, the intent was to confirm the solvency and going-concern valuations in order to verify the claims made by one of the unions. “They were telling our membership that they were 120 per cent funded and I was saying, ‘Show that to me. Let me see your last actuarial valuations.’ They would never produce it. So I went to [the privacy commissioner] and requested it.”
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The right to keep the documents confidential was important to the unions’ pension plan trustees, says Lorne Richmond, a labour lawyer at Goldblatt Partners LLP who acted for the Canadian Bricklayers and Allied Craft Unions members pension trust. “The trustees’ understanding was that once you file with FSCO, it stays with them, the members of the plan and no one else. [They] didn’t want to become involved in the politics of the raids.”
But it’s hard to ignore pension issues when it comes to unions and the members they want to attract, according to Maloney. “We’re a private sector union, and one of the main pillars of our organization is our pension plan. I want to know if they’re telling the truth [about their funding status].”
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The outcome of the issue is of significant importance to pension plans, says Richmond. “Pension plans aren’t that anxious to tell the whole world what kind of problems they’re having in hard economic times. Some pension plans, not all, might just look for ways to be a little less forthright if they know this information will be widespread. Up until this time, plans operated on the basis that this stayed with FSCO.”
In ruling on the issue last month, Justice Carolyn Horkins concurred with Stewart in setting aside the privacy commissioner’s decision and ordering it to reconsider the matter. A third judge, Justice Harriet Sachs, dissented.