Law Times

Law Times • December 1, 2008 NEWS Pension report impartiality questioned BY ROBERT TODD Law Times expert commission are tilted in favour of plan members. Stikeman Elliott LLP pen- sion lawyer Gary Nachshen questioned the suitability of the title — "A Fine Balance: Safe Pensions, Affordable Plans, Fair Rules" — of the report released by the Expert Commission on Pensions, led by former Osgoode Hall Law School dean Harry Arthurs. "It just seems to me, almost without exception when you get right down to it, he ends up recommend- ing things that would be in the interest of plan members and retirees," he says. "That's all wonderful in an ideal world, but when you've got, in particu- lar a market meltdown . . . we're trying to salvage what we have, and to be recommending piling on more funding requirements and more benefit requirements, I just don't think is realistic." Nachshen also questioned whether the report addressed the urgency of the problem. He says there's no question that the prov- ince is in a crisis for defined bene- fit pension plans, yet stakeholders have been waiting two years since the commission was announced, and many of the recommenda- tions would take two or three more years to implement. "I'm not sure we have that kind of time," he says. reforming Ontario's pension system, saying many of the recommendations A from an The commission was estab- lished in November 2006 by the Toronto lawyer has questioned the impar- tiality of a report on challenges brought on by the economic slowdown, the gov- ernment said the commission's goal was to develop long-term solutions. The government is looking for feedback on the report until Feb. 27, 2009. While Nachshen criticized 'It just seems to me, almost without exception when you get right down to it, he ends up recommending things that would be in the interest of plan mem- bers and retirees,' says Gary Nachshen. McGuinty government, making it the first overhaul of the prov- ince's occupational pension sys- tem in over 20 years. Many pen- sion plans have failed while others are severely underfunded, and the report notes that, "The reconfigu- ration of pension plans triggered by the restructuring of Ontario's economy, as well as their actual or threatened failure, has given rise to considerable litigation." The breakdown led the government to create the commission to recom- mend changes to the legislation and rules governing the system. While many pensioners are focused on the short-term creation of a new commission dedicated solely to regulating the province's pension system, taking over for the Financial Services Commission of Ontario. The report recommends devising "an agency with powers of self-man- agement comparable to those of the Ontario Securities Commission." The new body would be led by a "superintendent of pensions," who would act as chief executive, says the report. The Financial Services Tribunal should also be replaced by a new body, the Pension Tribunal of Ontario, the report recommends. "The tribunal would have exclusive and ultimate jurisdiction over all matters arising out of or inciden- tal to the [Pension Benefits Act], including plenary power to hear and decide specified matters at first instance, and to hear and decide all the report in spots, he says, "It's really extremely articulate and well written, and it really does raise the level of discourse in pension law. A lot of the time you see court decisions that are hard to decipher, and things written by actuaries that are barely in English." He adds that it's "very thorough, and it's a report that's very self-aware." Arthurs' report calls for the CORRECTION Bill Innes' name was spelled incorrectly in the Nov. 24 issue. Law Times apologizes for the error. A fierce proponent of family justice, James C.MacDonald's insights have shaped the very direction of family law in Ontario. Request for Expression of Interest (EOI) Legal Agents of the Minister of Justice and Attorney General of Canada The Department of Justice is seeking Expressions of Interest (EOIs) from private sector law rms and law practitioners interested in being considered for appointment as Legal Agents of the Minister of Justice and Attorney General of Canada. These agents provide the Government of Canada with legal advisory, real estate or litigation services in a broad variety of practice areas across the country. The Department of Justice relies upon in-house counsel, as well as private sector law rms and law practitioners, to support the Minister of Justice and Attorney General of Canada in his responsibility for the legal affairs of the government as a whole and in the delivery of legal services to individual departments and agencies. Interested law rms and law practitioners are invited to consult the Department's website at www.justice.gc.ca under "Work for Justice" for details regarding the application process, quali ca- tions, locations and a list of relevant areas of expertise. Applicants will be placed on an eligibility list and may be subject to further screening and evaluation as dictated by operational needs. Applicants must be willing to comply with minimum requirements in order to be considered for an appointment. Please note that this process does not apply to prosecution work. Information on becoming a Legal Agent of the Director of Public Prosecutions can be found at http://www.ppsc-sppc.gc.ca/eng/ aaf-man/index.html. This EOI does not obligate the Department or the Government of Canada in any way and is not to be construed as binding upon the Department or the government. Law rms or law practitioners having already expressed their interest through this process need not re-submit unless they wish to revise previously submitted information or register interest in additional practice areas. For more information on the role of Legal Agents, please visit: http://canada.justice.gc.ca/eng/dept-min/la-man/index.html. Tel: 613 Karen Beasleigh Fax: 613-960-1857 -946-7642 E-mail: EOI-EDI@justice.gc.ca AUTHORITATIVE.INNOVATIVE.TRUSTED. 12393-10118 MM3 10/08 Highlights of his 50 years of family law practice include: • Founding chairman of the National Family Law Section of the Canadian Bar Association and a former Director of Legal Education of the Law Society and head lecturer in Family Law • First recipient of the Canadian Bar Association's Award for Excellence in Family Law (1997) • Founder and the first president of the Toronto Collaborative Law Group (now Collaborative Practice Toronto) His published works include: - The Annotated Divorce Act - The Annotated Ontario Family Law Act - Canadian Divorce Law and Practice, 2nd Edition - Child Support Guidelines: Law and Practice, 2nd Edition - Handling a Family Law Matter in Ontario - Law and Practice Under the Family Law Act of Ontario Congratulations from all your friends at Carswell, Jim appeals from orders made by the superintendent," states the report. Arthurs also wants the govern- ment to put in place a "pensions champion," which the report defines as, "A new government agency that would assume respon- sibility for collecting and dissemi- nating reliable information about the pension system, for think- ing creatively about new pension strategies and policies, and for working with stakeholders to improve the pension system." Nachshen says the province previously had an independent pension regulator, but in the late 1990s efforts were made to com- bine various parts of the financial regulation system, which led to the creation of the Financial Services Commission of Ontario. A failed effort after FSCO's creation would have seen its work merged with the OSC. "Now that the pendulum is swinging back, I think it's proba- bly a good idea to have a regulator that's devoted solely to pensions, in principle," he says. But he LLP lawyer Kathryn Bush, who advised Arthurs during the cre- ation of the report, says if the set of reforms goes through, there are several ways in which pen- sion lawyers will be more heavily involved in the system. Pension plans, for example, will be required to have advisory com- mittees, which few have now. Lawyers also will have to help plans fall in line with more onerous requirements for disclosure of information to members, she says. "There's going to be work suggests that FSCO has done "a reasonably good job" of bringing together its pension expertise, and all the effort required to create the new body would take away from improving the content of the law. "I am concerned that it could distract people from what I consid- er the central challenge," he says. Blake Cassels & Graydon for lawyers in getting the gover- nance of plans to a higher level and a more transparent level," says Bush. LT PAGE 3 Congratulations James C. MacDonald on your Retirement Untitled-1 1 www.lawtimesnews.com 11/26/08 3:04:20 PM arswell_LT_Dec01_08.indd 1 11/25/08 10:04:19 AM

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• Pension Report
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