Will Bill C-228 finally prioritize pension entitlements in insolvency?

By David Bish

Law360 Canada (October 3, 2022, 2:11 PM EDT) --
David Bish
David Bish
Prioritizing pension entitlements in insolvency has been the subject of numerous failed legislative efforts by private members in prior years. But this time, things might be different. Bill C-228 has passed second reading and has the support of the Conservatives, NDP and Bloc — enough votes to potentially pass this legislation and bring further pension reform to insolvency.

Bill C-228 basics

The official title of Bill C-228 is An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985 — with the short title, Pension Protection Act. It is sponsored by a member of the Conservative Party but has found support among members from other parties.

The bill aims to ensure that in the event of an employer becoming insolvent, the employer must prioritize paying and maintaining eligible employees’ pensions before addressing other financial liabilities — including special payments, solvency deficiencies and other wind-up costs. It received first reading on Feb. 3, 2022, and promptly completed second reading and referral to committee on June 22, 2022.

To obtain the support of the NDP and Bloc, amendments to Bill C-228 have reportedly been agreed to so that in addition to covering pensions in bankruptcy and insolvency proceedings, the legislation may also protect employee termination and severance pay.

The details

Although no sitting government has sought in recent years to enact such legislation as part of its formal legislative agenda, numerous private members’ bills over the past two decades have attempted to give pension entitlements a priority in insolvency. Since the Liberal government was elected in 2015, both the Bloc and NDP have attempted to pass similar legislation — without success — and now, with Bill C-228, the Conservatives are attempting to succeed where others have failed.

The insolvency and lending communities have typically been wary of giving pension entitlements special priority if a company becomes insolvent. This is partly because many of the proposals were presented before being fleshed out. At the same time, those communities are also tired of the false alarms of so many failed attempts at passing legislation on the issue. That could be one reason why they have given the bill relatively little attention.

Yet Bill C-228 has quietly gained traction and could soon be passed.

Bill C-228 and previous bills

There are two things that set Bill C-228 apart from prior efforts. First, it has gained the support of three parties: the Conservatives, NDP and Bloc. Second, those three opposition parties have sufficient votes to potentially pass this legislation, even without the participation of the minority Liberal government. Some Liberal MPs have also signalled their support for the bill.

Bill C-228 incorporates elements of prior bills on point, including Bill C-281 in 2004, Bill C-372 in 2017, Bill C-384 in 2017, Bill C-405 in 2018, Bill C-253 in 2020, Bill C-259 in 2020, Bill C-225 in 2022 and Bill C-264 in 2022. Because Bill C-228 is still being reviewed, further changes to the bill are likely.

Goals of Bill C-228

The sponsor of the bill has cited the sharply reduced pension payments that have come to light during insolvency proceedings for former corporate titans such as Sears Canada and Nortel Networks as the inspiration for this legislation.

As currently formulated, the bill includes three key provisions:

  1. It requires that an annual report on the solvency of pension funds be tabled in the House of Commons for greater transparency and oversight.
  2. It requires further mechanisms to transfer funds into a pension fund to restore it to solvency or to ensure the insolvent portion until the funds can be restored.
  3. In the case of insolvency, pension entitlements would be paid in priority to the claims of most other creditors, with certain enumerated exceptions such as: (i) amounts owing in respect of the Canada Pension Plan, Quebec Pension Plan, Employment Insurance and certain taxes; (ii) suppliers taking back goods delivered within a month of bankruptcy; and (iii) salaries of up to $2,000 and associated contributions.

Impact of prioritizing pension entitlements

A primary consideration in proposed statutory pension “super priorities” to date has been the impact this may have on lending, particularly secured lending. If secured lenders cannot occupy a first position, then at a minimum they prefer to have certainty as to the quantum of the obligations that have priority ahead of them. This is essential for lenders in considering whether to make loans available, the quantum of such loans, any reserves to be taken and the terms of the loans — including the appropriate interest rate to charge that is reflective of the risk to the lender.

This is the crux of the pension challenge: the amount of payment required to be paid to liquidate an unfunded liability or a solvency deficiency or such other amounts as are necessary to liquidate any other unfunded liability or solvency deficiency as determined at the time that an insolvency proceeding is commenced (i.e., the amounts that will have priority ahead of secured lenders) is unknowable with any certainty at the time that a prior lending decision must be made.

The concern this raises is that this uncertainty will make credit for borrowers more difficult — or impossible — to obtain, or that such credit will become more expensive to obtain due to increased risk to lenders. In such case, this may be of obvious detriment to companies with defined benefit pension plans and their stakeholders, including employees and pensioners. Efforts to improve the position of pensioners upon insolvency may in fact make insolvency of their former employer more likely due to lessened and/or more expensive access to capital.

A further concern is whether the legislation, its implementation, and the resulting consequences of such significant amendments have been carefully considered and accounted for in the legislation. Gaps in the bill are apparent. For example, the priority given to pensions in Companies’ Creditors Arrangement Act (CCAA) proceedings is limited to situations in which there are plans of compromise and arrangement. However, the legislation fails to consider the common situation in which there is a sale of a business completed under CCAA proceedings without a plan of compromise and arrangement.

And it is not clear that the consequences of these changes are fully appreciated. For example, there are significant timing concerns given that the amounts necessary to fully top up a pension plan in liquidation may take months or years to determine. There could be significant delays in making distributions to creditors and/or enormous reserves taken that significantly reduce distributions to creditors on account of having to wait out priority pension plan top-ups in insolvency.

Next steps

Given the increasing traction of the proposed legislation, we may see a hurried response from the insolvency community. And it will be of particular interest to observe what, if any, changes are made to the bill as it passes through the Standing Committee on Finance.

It has been suggested that the coming into force of the reporting on the solvency of funds would happen immediately, along with the mechanism to top up pension funds to restore them to solvency, but that there would be three to five years before the priority in insolvency proceedings provisions would come into effect. This would give companies and their stakeholders, including lenders, time to plan and adjust.

David Bish is a partner and the head of the corporate restructuring and advisory practice at Torys LLP in Toronto.

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