Pension plan administrators should get used to dealing with requests for their actuarial documents while lawyers duke it out over just how confidential they are, according to a pension lawyer.
Natasha Monkman, a pension lawyer at Hicks Morley Hamilton Stewart Storie LLP, says plan administrators have traditionally viewed financial information filed with their provincial regulators as strictly confidential.
According to conventional wisdom in the industry, only a few legislated exemptions that require sharing information with plan members, employers and some union representatives could pierce the veil of secrecy around the documents.
But in recent years, unions on raiding campaigns and other curious third parties have challenged that orthodoxy, using freedom of information laws to try to get a closer look at the financial health of plans associated with rivals.
“Some of them have had at least partial success in pushing the limits. I think we’re at a watershed moment. It’s a growing area, and I think more third parties will be looking to get around the privacy of this information in the same way,” says Monkman.
Cases in point
Two recent decisions from Ontario and British Columbia demonstrate the diverging legal views on the subject.
Last summer, the Financial Services Commission of Ontario was part of an appeal to the province’s Divisional Court seeking to overturn an order that would have forced it to disclose the actuarial reports of two multi-employer pension plans.
The case concerned plans administered by two unions: the Bricklayers and Stonemasons Union Local 2 and the Canadian Bricklayers and Allied Craft Unions. A rival union made the request for the documents in 2013 in advance of the so-called raiding season, a two-month window that occurs every three years when unions in the construction industry scramble to displace members from one another.
The two unions, backed by FSCO, argued that turning over the records could help their rival in its raiding efforts. That, in turn, could cause a run on the pension plan as members transfer out of it, potentially reducing the benefits of those who remain.
But the information and privacy commissioner of Ontario was skeptical, ordering the release of the documents after dismissing the claims of potential financial harm as “speculative.”
The Divisional Court, however, ordered the commissioner to take a fresh look at the case after finding the previous ruling was unreasonable because it set the bar too high for the unions to show that the release of the information could damage the plan.
Meanwhile, in British Columbia this spring, a similar case before that province’s privacy commissioner went in favour of the requester, the Independent Contractors and Businesses Association.
Construction unions associated with the targeted pension plans resisted the application, claiming the association was going to use the financial information to promote optional retirement savings products offered by one of its affiliates.
But the commissioner questioned the risk of harm from disclosing the financial information and ordered the province’s Financial Institutions Commission to release it.
Some comfort for administrators
Sean Maxwell, a pension lawyer at Blake Cassels & Graydon LLP, says if the B.C. courts endorse the commissioner’s decision, it will be harder for plans to resist requests for disclosure.
However, he says administrators should take comfort from the fact that a higher legal authority delivered the Ontario decision. “That ought to have a rather chilling effect on future decisions by Ontario’s privacy commissioner,” says Maxwell.
Either way, he expects to see further requests for plans’ financial information. “Sometimes, I think it’s less about getting hold of the actual documents at issue and more about sending a shot across the bow of a rival,” says Maxwell.
Michael McKiernan is a St. Catharines, Ont.-based freelance writer.
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