Federal Court Upholds Pension Regulator’s Refusal to Order Disclosure of Member Information

11 Aug

On July 21, 2011, the Federal Court released a decision in a long running pension fight.  The applicants in Buschau v. Rogers Communications Inc., 2011 FC 911 have been pursuing access to the surplus in their pension plan since 1995.  This decision has been to every level of Court, and sometimes twice.  Most recently, the applicants requested that the Federal Superintendent of Financial Institutions (the “Superintendent”) order that Rogers be required to disclose the following information:

  • the employment and pension data of any new members it proposes to add to the Pension Plan…
  •  the information Rogers has, or should have, as to which members of the Pension Plan it has offered a “buy-out”, the value of such “buy-out” and the members’ acceptance or rejection of such offers…

The applicants purported to require this information to be able to identify potential new members of the Pension Plan to inform them of Rogers’ past actions allegedly taken in bad faith (notwithstanding existing decisions indicating that Rogers has been acting in compliance with legislative requirements) and to determine what happened to any applicable surplus relating to members who accepted a buy-out.

The Superintendent refused to order the disclosure.  The Superintendent determined that the Pension Benefits Standards Act, 1985 (“PBSA”) (the legislation governing the Pension Plan), specifically section 28 and the associated Regulations, set out Rogers’ disclosure requirements and the requested information did not fall within the legislative requirement.  The Superintendent also indicated that Rogers’ was obliged to comply with the provisions of the Personal Information Protection and Electronic Documents Act.  The applicants sought judicial review of the Superintendent’s decision.

The Federal Court agreed with the Superintendent’s determination and found that she decision was reasonable.  Of particular note for plan administrators facing disclosure requests from members, the Federal Court stated the following:

[100]      I find that the Superintendent’s decision in this regard was reasonable. Section 28 of the PBSA sets out the members’ “Rights to Information”. It also indicates that the plan members are entitled to certain information as set out in the Pension Benefits Standards Regulations, 1985, SOR/87-19 [Regulations]. Neither section 28 of the PBSA nor the associated Regulations mandate that the respondent, in the current circumstances, is obligated to disclose the type of information that the applicants are seeking.

This decision is one of the first examining the scope of a plan administrator’s disclosure obligations under the Federal pension legislation.  Plan administrators will likely take comfort in the finding that their disclosure obligations are limited to the specified documents (such as plan texts, amendments, trust agreements, valuation reports, financial statements) and there is no obligation to disclose information outside of the scope of the PBSA requirements if requested to do so by other members.

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