A Saskatchewan arbitrator has ruled that Canadian Blood Services doesn’t owe an employee eight years of retroactive pension contributions because it took the proper steps to fix its failure to provide her with enrolment forms within the appropriate time limits.

“The decision recognizes that mistakes happen in administering pension plans and that administrators can take steps to fix those errors,” says Lindsay McLeod, a partner at Brown Mills Klinck Prezioso LLP and who wasn’t involved in the case. “It’s a good reminder about the importance of employers and sponsors communicating clearly when explaining pension issues, but also a reminder that employees have an obligation to read and understand the materials employers provide.”

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CBS hired Leanne Dubois, the grievor, in 2011, at which time she received an offer to enroll in either the defined benefit or defined contribution pension plan after three months’ service. The offer letter indicated that if she chose not to enroll, she would have to sign a declaration of her intention, failing which she would be deemed to have chosen non-participation. Dubois signed and returned the offer letter.

The relevant terms of the pension plans, the collective agreement and the Saskatchewan Pension Benefits Act required CBS to provide employees with a summary of the plans within 60 days of — but not later than 30 days before — their having become eligible for enrolment.

The organization missed the deadline, but in the subsequent year, it sent Dubois a letter that included an option to repurchase her lost pension credits. When she didn’t reply and didn’t return the declaration of non-participation, CBS followed with a letter confirming that she was deemed to have chosen non-participation.

In 2019, Dubois realized she wasn’t a member of the pension plan and filed a grievance seeking eight years of retroactive employer contributions.

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But arbitrator Anne Wallace dismissed Dubois’ claim for retroactive enrolment. “CBS’s communications to Dubois were clear. Dubois could not possibly have thought she would somehow be automatically enrolled in a pension plan. Dubois would also have always known that she had never completed enrolment forms for a pension plan.”

While CBS had indeed breached the plan, it had also “cured that breach” the following year by providing Dubois with the required materials and informing her of her options, including an offer to participate retroactively from her eligibility date.

Jordan Fremont, a partner at Bennett Jones LLP and who wasn’t involved in the case, says employers who make these types of errors should put themselves in the best position possible “to put the onus back” on the employee.

“At the end of the day, it’s the individual’s obligation to make a choice. But that doesn’t relieve employers and administrators who present options to employees from communicating clearly and following up on communications that have not been received or read. They should also keep a record of all communications as evidence that the employee received them, although they may not have read them.”

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