IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended (the “PBA”);
AND IN THE MATTER OF a Proposal of the Superintendent of Financial Services to Make an Order under section 87(2)(a) of the PBA in respect of the Ontario Power Generation Inc. Pension Plan, Registration Number 1059120
Ontario Power Generation Inc.
700 University Avenue
Attention: Nancy Roxby
Employer and Administrator of the Plan
c /o Koskie Minsky LLP
20 Queen Street West, Suite 900
Attention: Ari Kaplan
c/o Bastedo Stewart Smith
180 Dundas Street West, Suite 1800
Attention: Bryan Smith
NOTICE OF PROPOSAL
I PROPOSE TO MAKE AN ORDER pursuant to section 87(2)(a) of the PBA, that the Ontario Power Generation Inc. (the “OPG”) commence payment of the pension of Mr. Henry Kernius (“Mr. Kernius”) together with all interest on outstanding payments from the date such payments were due to the date of payment.
- Mr. Kernius is a former member of the Plan who terminated his employment with the OPG as at January 1, 2004.
- Mr. Kernius was married to Lenore Edmunds (“Ms. Edmunds”) from September 9, 1972 until August 22, 1992.
- A Divorce Judgment was issued on November 3, 1994 which provided that the divorce of Mr. Kernius and Ms. Edmunds was effective on December 5, 1994. The Divorce Judgment incorporated provisions from the separation agreement entered into between Mr. Kernius and Ms. Edmunds. The provision respecting the Plan in the Divorce Judgment states:
6. DIVISION OF HUSBAND’S ONTARIO HYDRO PENSION
The pension plan credits of the husband with Ontario Hydro from
the September 9, 1972 date of marriage until the August 22, 1992 date of
separation shall be divided equally between the parties, with that division
to be recorded at Ontario Hydro forthwith should that Plan permit, or, in
future, if that Plan changes to permit same, or if future legislation is passed
to permit same, with the Petitioner (Ms. Edmunds) to receive her pension
(one-half of the aforesaid credits accumulated during the aforesaid period)
at her option and in accordance with her rights under the Plan.
- Mr. Kernius was a member of the Plan from December 1, 1972 until December 31, 2003. He applied on December 2, 2003, to receive an unreduced early retirement pension under the Plan pursuant to a provision in the Plan which came into effect after August 22, 1992 and which states:
Effective January 1, 2001, any member who is represented by the
Society of Energy Professionals as of the date the member ceases
employment with the Corporation, whether by termination or
retirement, may on the first day of the month coincident with or
next following the date on which the sum of the member’s age
and continuous employment is equal to or greater than 82 years,
retire on a pension that is 100 per cent of the member’s earned
pension computed in accordance with Rule 15.
- The Plan administrator has not yet made any pension payments to Mr. Kernius because Mr. Kernius disputes the options and entitlements that the Plan administrator has proposed to give to Ms. Edmunds. However, a former member does not have any right or authority, under either the Plan or the PBA, to dispute any right or entitlement that an administrator provides to a former spouse, so long as the former member’s pension benefits are not affected.
- The Plan administrator has provided, or has proposed to provide, the same options to Ms. Edmunds as the options provided to Mr. Kernius under the Plan, pursuant to subsection 51(5) of the PBA, which states:
A spouse on whose behalf a certified copy of a domestic contract or order
mentioned in subsection (1) is given to the administrator of a pension plan
has the same entitlement, on termination of employment by the member
or former member, to any option available in respect of the spouse’s interest in the pension benefits as the member or former member named in the domestic contract or order has in respect of his or her pension benefits.
- The Plan states in Rule 17 that the annual pension shall be paid at a monthly rate, the first payment to be made on the retirement date, the second and subsequent payments on the first day of each month thereafter and the final payment of a full month’s pension on the first day of the month in which the pensioner dies.
- Section 87(2)(a) of the PBA states that the Superintendent of Financial Services may make an order requiring the administrator of the pension plan to take any action if the pension plan is not being administered in accordance with the pension plan.
- The administrator of the Plan is not administering the Plan in accordance with its terms by withholding payment of Mr. Kernius’ pension.
- Such further and other reasons as may come to my attention.
YOU ARE ENTITLED TO A HEARING by the Financial Services Tribunal (the “Tribunal”) pursuant to section 89(6) of the PBA. To request a hearing, you must deliver to the Tribunal a written notice that you require a hearing, within thirty (30) days after this Notice of Proposal is served on you.*
YOUR WRITTEN NOTICE must be delivered to:
Financial Services Tribunal
5160 Yonge Street
Attention: The Registrar
FOR FURTHER INFORMATION on a Form for the written notice, please see the Tribunal website at www.fstontario.ca or contact the Registrar of the Tribunal by phone at 416-590-7294, toll free at 1-800-668-0128, ext. 7294, or by fax at 416-226-7750.
IF YOU FAIL TO REQUIRE A HEARING WITHIN THIRTY (30 DAYS), I MAY CARRY OUT THE PROPOSAL AS DESCRIBED IN THIS NOTICE.
DATED at Toronto, Ontario, this 8th day of January, 2008.
K. David Gordon
Deputy Superintendent, Pensions