Golf fans everywhere know that Tiger Woods really doesn’t like to lose. Neither, apparently, does Quebec’s pensions regulator, the Régie des rentes du Québec.
A most dramatic example of the Régie’s win-at-all-costs mentality came earlier this month, when the Quebec government quietly issued a series of proposed amendments to the Supplemental Pension Plans Act which would retroactively change the rules on the funding of multi-employer pension plans that were the subject of the recent Multi-Marques decision at the Quebec Court of Appeal. Even more startling, the Régie is taking the position that these changes should apply to the Multi-Marques case itself, which would effectively undo the plan trustees’ and employers’ hard-won judicial victory at the Court of Appeal.
To understand this stunning turn of events, a little background is in order. For a number of years, two companies named Canada Bread and Multi-Marques participated in a multi-employer pension plan for unionized employees working in the bakery sector both in Quebec and in several other provinces. (Full disclosure: My law firm’s Montreal office represents Canada Bread, though I have not personally been involved in the case.) Like most other Canadian multi-employer plans, the plan in question contained a defined benefit pension formula, but each participating employer’s funding obligation was described as a defined contribution set forth in the relevant collective agreement. That is, employers understood their funding obligation to be limited to the amount negotiated with the union.
After Multi-Marques joined the plan, and unbeknownst to the company, the plan trustees decided to credit past service of the company’s employees under the plan. This was notwithstanding that the collective agreement only called for the funding of current service.
When Multi-Marques subsequently withdrew from the plan, there was a significant deficit in the plan in respect of such employees’ past service. Consistent with its understanding of its collective agreement obligations and the general understanding in Canada of multi-employer plans as effectively being negotiated cost plans, Multi-Marques took the view that it was not responsible for funding such deficit. This meant that affected employees’ accrued benefits would therefore have to be reduced.
The Régie thought otherwise, on the basis of the “full funding on plan termination” provisions of Quebec’s pension legislation, and ordered that the employer fund up the above-mentioned deficit. Appeals by the companies and the plan trustees to the Tribunal administratif du Québec. and the court of first instance proved unsuccessful. But earlier this year, in a unanimous and closely-reasoned decision, the Quebec Court of Appeal ruled in favour of the companies and the plan trustees, striking down the Régie’s full funding order in favour of a benefit reduction.
The Régie’s first response to this development was neither surprising nor unusual. In May, it announced that it would seek permission to appeal the Court of Appeal decision to the Supreme Court of Canada. The Supreme Court has not yet decided whether to hear the case.
The Régie’s second response was much more unconventional. It so happened that there was already a bill before Quebec’s National Assembly containing a series of proposed technical amendments to the Supplemental Pension Plans Act, on unrelated matters like phased retirement and so forth. When the bill passed second reading and went to committee for detailed clause-by-clause examination, and without any notice to the other parties to the Multi-Marques litigation, the government slipped a further series of amendments into the bill. These further amendments would make the full funding provisions expressly applicable to multi-employer plans, retroactive all the way back to the Act’s initial adoption in 1990.
At the committee hearings, and contrary to the conventional Canadian view of multi-employer plans as negotiated cost arrangements, the Régie contended that these “declaratory” amendments reflected a supposed common understanding of the legislation’s original intent. On the basis of this explanation, the committee approved the “amendments to the amendments” and has now reported the bill back to the National Assembly for third and final reading.
Retroactive legislation is legal per se, but is generally considered to be bad form and accordingly is adopted only sparingly in this country. One is entitled to question whether a sense of proportion has been lost, when the authorities feel it appropriate to adopt legislation which would have the effect of retroactively revising 18 years of privately negotiated collective agreement provisions on multi-employer plan funding. And one can legitimately question the Régie’s understanding of the bedrock legal “res judicata” doctrine, when it argues that retroactive legislation could purportedly override a unanimous Court of Appeal decision with regard to the very parties and very pension plan in question in that decision.
The fate of the proposed amendments remains to be determined. But if they are adopted in one form or another, and irrespective of any possible impact on Multi-Marques, one thing is certain: henceforth the multi-employer plan “deal” will be very different in Quebec as compared to the rest of Canada. And that would represent another nail in the coffin of pension legislative uniformity in this country.