RecensionsBook Reviews

Pension Law, by Ari N. Kaplan, Toronto: Irwin Law, 2006, 657 pp., ISBN: 1-55221-088-X and ISBN-13: 978-155221-088-8.[Notice]

  • Frédéric Hanin

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  • Frédéric Hanin
    Université Laval

The book is structured as follows. The first chapter analyses the legal nature of the pension and the second one describes its development. Many sources of pension law exist: contract law, equity and trusts, constitutional law, the Canadian charter of rights and freedoms, administrative law, other legislation like the Income Tax Act, and finally policies and guidelines. As usual, historical foundations are particularly useful in understanding contemporary problems that are questioning pension regulation. The decision in 1965 of the Canadian government to create a public welfare pension scheme implied that provincial legislation had only to set minimum standards for voluntary employer pension plans. However private contractual pension has now become the most important source of retirement income for workers, thus creating a burden on pension law. The third chapter deals with the scope of pension rights and the fourth one with regulation. Sponsorship, application, registration and statutory floors are presented. Regulation is analyzed mostly from the perspective of the Province of Ontario. It is interesting to notice that the recent trend to centralize regulation institutions have created a side effect of increasing the jurisdictional model at the expense of the regulatory model of regulation, favouring procedural matters and “leaving to the parties to resolve disputes through agreement or litigation based on the application of trust law principles” (p. 78). Courts have even urged governments to adopt new legislation in order to adapt the Law to contemporary matters, surplus distribution being an example. The fifth chapter deals with minimum standards and the sixth one with administration. Administration encompasses duty and standard of care, agents and advisors, and specific issues in plan administration. Both chapters shed light on contemporary debates about the governance of pension plans. For example, the status of agent and advisor has become a crucial issue in the pension fund growth and “financial twist” environment. Usually, employers and employees do not administer funds directly but require the assistance of agents (asset managers and actuaries for example). In Common law, the term agent is synonymous with a fiduciary relationship whereas in the Pension Benefits Act an agent provides services to the administrator of the plan, which is a much broader definition and leaves possible contractual limitations of responsibility an open issue. Moreover the content of the duty of agents to employees is far from being clearly established. Chapter seven presents detail about pension plan funding arrangements and chapter eight deals with Amendments. Funding comprises contributions, valuation and investment. Amendments consider plan amendment and business reorganization. Business reorganization in the pension law perspective exhibits high complexity because there seems to be a trade-off between security of future retirement income and the flexibility of the employer’s strategy to face external competition. Defined benefits pension plans often appear less flexible than defined contribution plans in this context. The concept of “successor employer” may be a source of protection for workers’ pension benefits, even if the issue is precisely to secure the status of employer in order to enforce corporate social responsibility. Chapter nine is about wind-ups and chapter ten discusses surpluses. The chapter on wind-ups includes the initiation and rights and duties on pension plan completion. The chapter about surpluses deals with statutory framework and surplus ownership. These two chapters are probably the most critical chapters in the context of American industrial relations. The trend towards conversion of defined benefit pension plans into defined contribution plans involves an extensive knowledge of both matters. In both cases, as in the rest of the book, trust law stands at the centre of jurisdictional controversies. For workers, the classic definition of Trust seems to be a …