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 18 of the PBA relating to the proposed revocation of registration of the Agreement and Declaration of Trust dated October 4, 1994, and the proposed termination of the International Union of Painters and Allied Trades Province of Ontario Pension Plan, Registration Number 0391680
Board of Trustees of the International Union of Painters and Allied Trades Province of Ontario Pension Plan
130 "B" Toro Road
Toronto ON M3J 3M9
Attention: Mr. William Nicholls
See Schedule “A”
NOTICE OF PROPOSAL
I PROPOSE TO MAKE AN ORDER to revoke the registration of the International Union of Painters and Allied Trades Province of Ontario Pension Plan (the “Plan”), Registration Number 0391680 under section 18(1)(b) of the PBA, if the Plan is not amended so as to comply with section 8(1)(e) of the PBA. The Order will specify the termination and wind up date to be the latter of the expiry of thirty (30) days from the date the Order is issued or until final decision is issued once all rights of appeal have been exhausted.
- The Board of Trustees of the International Union of Painters and Allied Trades Province of Ontario Pension Plan is the Sponsor of the Plan.
- The Plan was established as a defined benefit, multi-employer, multi-jurisdictional pension plan on November 1, 1973, and is registered in Ontario. According to the Annual Information Return filed for the year ending December 31, 2006, the Plan has 5,937 active members in Ontario, 19 active members in Newfoundland and Labrador, 17 active members in Nova Scotia, 8 active members in New Brunswick, 176 active members in Quebec, 5 active members in Manitoba, 1 active member in Saskatchewan, 14 active members in Alberta, and 29 active members in British Columbia.
- An Agreement and Declaration of Trust dated October 4, 1994, (the “1994 Trust Agreement”) was filed with the Financial Services Commission of Ontario (“FSCO”) on March 13, 2001.
- The 1994 Trust Agreement states in section 1.12 that “Trustees”, “Board”, or “Board of Trustees” means all persons designated from time to time as Trustees pursuant to the provisions of the 1994 Trust Agreement.
- Section 2.01 of the 1994 Trust Agreement states that the Pension Fund is created and established and shall be administered by the Trustees for the purpose of providing benefits in accordance with the terms of the 1994 Trust Agreement and the Plan.
- Section 3.01 of the 1994 Trust Agreement states:
3.01 Number of Trustees and Residence
The Board of Trustees of the Pension Fund shall consist of fifteen (15) Trustees, eight (8) of whom shall be appointed by the Association (“Association Trustees”) and seven (7) of whom shall be appointed by the Union (“Union Trustees”). All Trustees shall reside in Canada.
- The “Association” in the 1994 Trust Agreement means the following associations:
The Ontario Painting Contractors Association;
The Residential Painting Contractors Association (“RPCA”), (formerly the Residential Painting Contractors of Ontario or “RPCO”);
The Acoustical Association Ontario; and
The Interior Systems Contractors Association of Ontario.
- The “Union” in the 1994 Trust Agreement means the following unions:
The International Brotherhood of Painters and Allied Trades;
The Ontario Council of the International Brotherhood of Painters and Allied Trades; and The International Brotherhood of Painters and Allied Trades, Local Union 1891.
- Section 4.01 of the 1994 Trust Agreement gives the Trustees the power to establish and administer the Pension Fund and the Pension Plan for the benefit of the employees.
- Section 6.01 of the 1994 Trust Agreement gives the Board of Trustees the power to determine all questions of nature, amount, and duration of benefits to be provided under the Plan.
- On May 22, 1996, a Merger Agreement was entered into that merged the Plan’s Trust Fund with the Glaziers Pension Trust Fund of Ontario. The “New Trust Agreement” was established as at May 22, 1996.
- The Merger Agreement provides that the Architectural Glass and Metal Contractors Association shall appoint three (3) trustees to the Board of Trustees, and that the International Brotherhood of Painters and Allied Trades, and the Ontario Council of the International Brotherhood of Painters and Allied Trades shall appoint three (3) trustees to the Board of Trustees.
- Therefore, the effect of the “New Trust Agreement” is that the Board of Trustees consists of twenty-one (21) Trustees, eleven (11) of whom are management trustees and ten (10) of whom are union trustees.
- A previous Notice of Proposal was issued by the Superintendent on October 19, 2005, proposing to make an Order that the Plan be administered by the Board of Trustees without regard to Amendment 3 to the Plan, and proposing to revoke the registration of Amendment 3 (which provided that the Residential Painting Contractors Association (RPCA), formerly RPCO, shall no longer appoint Trustees to the Plan, and that any Trustees appointed by the RPCA shall tender their resignations). The reasons in the previous Notice of Proposal were essentially that Amendment 3 failed to meet the requirements set out in the 1994 Trust Agreement respecting the amendment of the trust.
- A hearing request was filed on November 14, 2005, with the Financial Services Tribunal (the "Tribunal") regarding this previous Notice of Proposal by William (Bill) Nicholls as Chair for the Board of Trustees of the International Union of Painters and Allied Trades Province of Ontario Pension Plan.
- The hearing request was subsequently withdrawn, and a final Order was issued by the Superintendent on September 14, 2006.
- Section 8(1)(e) of the PBA states that a pension plan is not eligible for registration unless it is administered by an administrator who is, in the case of a multi-employer pension plan established pursuant to a collective agreement or a trust agreement, a “board of trustees appointed pursuant to the pension plan or a trust agreement establishing the pension plan of whom at least one-half are representatives of members of the multi-employer pension plan, and a majority of such representatives of the members shall be Canadian citizens or landed immigrants”. (emphasis added).
- Section 18(1) of the PBA states in part:
18(1) The Superintendent may,
(c) revoke the registration of a pension plan that does not comply with this Act and the regulations.
- Section 18(3) of the PBA states that a revocation of registration of a pension plan operates to terminate the pension plan as of the date specified by the Superintendent.
- The 1994 Trust Agreement does not comply with section 8(1)(e) of the PBA because the Board of Trustees that is appointed as administrator of the Plan under that agreement is not composed of trustees who are at least one-half representatives of members. Therefore, the Plan is not eligible for registration under the PBA.
- 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 REQUEST A HEARING WITHIN THIRTY (30) DAYS, I MAY CARRY OUT THE PROPOSAL AS DESCRIBED IN THIS NOTICE.
DATED at Toronto, Ontario, this 26th day of May, 2008.
K. David Gordon
Deputy Superintendent, Pensions
* NOTE - Pursuant to section 112 of the PBA any Notice, Order or other document is sufficiently given, served or delivered if delivered personally or sent by regular mail and any document sent by regular mail shall be deemed to be given, served or delivered on the seventh day after the date of mailing.