Chapter 9 - Pension & Employee Benefit Plans
All but one Canadian province subscribes to the Canada Pension Plan for employees and the self-employed. The province of Québec provides a similar pension plan, the Québec Pension Plan, for employees and the self-employed in that province. Both plans are mandatory. In addition, many large employers opt to provide their employees with company-sponsored pension and benefit plans.
Pensions
Government-Sponsored Pension Plans
Both employers and employees are required to contribute to the Canada Pension Plan (CPP) or to the comparable Québec Pension Plan (QPP). These plans provide a basic level of income protection on retirement or disability and are financed by contributions deducted each time an employee is paid. The employer and employee each contribute an equal percentage of salary, up to a yearly maximum. Employees generally become eligible for full benefits at age 65, even if they are still working. The pension may be received as early as age 60 or deferred to as late as age 70. Contributions cannot be made after age 70.
Old Age Security and the Guaranteed Income Supplement are also available to lower-income seniors. The funding for these programs is derived from the federal government’s general tax revenues, not employers or employees. A given province may have additional programs for lower-income seniors.
Company-Sponsored Pension Plans
Many employers provide company pension plans, which may be partially funded by employee contributions. Though private pension plans are not mandatory, if offered, they must be funded according to provincial law (or federal law for those employees who work in the federal jurisdiction).
Most such plans are registered under the Income Tax Act as a “registered pension plan” in order to benefit from favourable tax treatment. In order for a pension plan to be registered for tax purposes, it must also be registered under the pension standards legislation of the appropriate jurisdiction. If the plan members are employed in more than one Canadian jurisdiction, then either the minimum standards of a member’s province of employment applies or, for many issues, such as funding and investment, the law of the province in which the plan is registered applies.
Pension standards legislation is designed to ensure that adequate funds will be available to pay the pension obligations in the future in the case of defined benefit plans. Eligibility to participate in a pension plan applies to both part-time and full-time employees.
Group Benefit Plans
Although the federal and provincial governments provide a variety of insurance and benefit plans as discussed in this chapter and Chapter 10, many employers provide additional employee benefit plans. In particular, although physicians and hospital services are covered by public plans, employers frequently provide supplemental health, dental, and drug plans as well as disability and life insurance.
Fewer employers today are providing benefit plans to retirees. In industries where this is still the norm, some employers have retirees pay premiums for their benefits after retirement, subject to any prior binding commitment by an employer to pay the full cost.
Purchaser’s Strategic Considerations
Unionized Environments
A collectively negotiated pension plan can create complications for a purchaser in two ways. First, the collective agreement may restrict or limit the purchaser’s ability to modify the terms of the pension plan without union consent. That can be particularly problematic in the case of a distressed target acquisition, where a union will likely be more vigilant with regard to the pension benefits of employees who may be downsized or laid-off.
Second, the collective agreement may require that employees participate in a pension plan that is administered by the union, which in some cases may be a multi-employer pension plan in which other employers participate. As a result, the purchaser may be forced to make contributions to a plan over which it has little or no control. Only the province of Quebec has legislation concerning an employer’s liability in withdrawal from a pension plan. The law in other provinces is relatively undeveloped.
Due Diligence Process
Before completing a share purchase or an asset purchase in which the pension and benefit plans are assigned to the purchaser, the purchaser will need to obtain copies of any relevant pension and benefit plan documentation. Three main issues need to be considered at this stage:
- Compliance
- Funding
- Maintenance post-acquisition
Asset Vs. Share Purchase
In a share purchase, the legal personality of the target does not change and the pension plan continues as it was prior to the acquisition. If the parent company maintains a pension plan for its subsidiaries and only the shares of the subsidiary are purchased, the purchaser will need to provide its own plan.
Asset purchases provide a certain degree of flexibility with regard to pension plans. However, some purchasers will opt to grant the same or substantially similar plans to the employees following the asset purchase to avoid claims of constructive dismissal.
The purchaser in an asset purchase may decide to:
- Assume the seller’s plan if it is limited to only its employees
- Provide a new plan on a going-forward basis for future service exclusively
- Provide a comprehensive plan covering both past and future service
Where the purchaser decides to provide a plan that covers past and future service, it will be necessary to transfer assets of the seller’s plan to the purchaser’s plan to cover liabilities that were assumed from the seller’s plan. Regulatory consent to the transfer of assets between pension plans must be obtained before any such assets are transferred between pension plans. The requirements for regulatory approval of an asset transfer vary considerably across jurisdictions. Some legislative restrictions in certain jurisdictions may prevent a perfect match between the value of assets and liabilities that are transferred from the seller’s pension plan, i.e., the transferred assets might be more or less than the value of the transferred liabilities. If the value of the assets in the seller’s pension plan exceeds the value of the liabilities, the seller will wish to be compensated for the difference. If, on the other hand, the liabilities are greater than the value of the assets of the seller’s pension plan, the purchaser will require a corresponding reduction in its purchase price.
Timing
Changes to existing plans or the creation of new pension plans require registration by applicable regulators. Such changes may involve the preparation of new plan documentation, as well as insurance contracts or trust agreements, particularly if the purchaser is required to establish a new plan. It is common for the purchaser to complete this work after the transaction has closed using the closing as the effective date of commencement of the plan.
Because group benefit plans are typically governed by an underlying insurance contract, if purchaser is required to provide a new plan, such plan must generally be operational effective as of the closing date.
