Pension Litigation, Governance & Reform

Day 1 – January 21, 2010

8:00 Registration Opens – Coffee Served

8:45 Opening Remarks from the Co-Chairs

Ari Kaplan
Partner
Koskie Minsky LLP

Hugh Wright
Partner
McInnes Cooper

9:15 Assessing the Impact of Pension Reform Initiatives in Canada: Pan-Canadian Pension Law Reform Panel Discussion

Bob Baldwin
Expert Commission on Pensions (Ontario)

Christopher A. Brown
Partner, Osler, Hoskin & Harcourt LLP
Co-Chair of the Alberta-British Columbia Joint Expert
Panel on Pension Standards (Alberta)

Ronald A. Pink, Q.C.
Founding and Managing Partner
Pink Breen Larkin Pension Review Panel (Nova Scotia)

Last fall, the Ontario Expert Commission on Pensions, the Alberta/British Columbia Panel on Pensions, and the Nova Scotia Pension Review Panel issued reports recommending the most comprehensive regulatory and policy review since the 1980’s. Find out from this exciting expert panel which recommendations are being implemented and how these dramatic changes will impact your business.

• Discovering which recommendations are being implemented – and which ones are not
• What will be the impact of these reforms on pension plan sponsors?
• How are economic developments affecting the implementation of the recommendations?
• Examining new pension reform initiatives in Manitoba and Newfoundland

10:30 Networking Refreshment Break

10:45 Critical Cross-Canada Pension Case Law and Regulatory Updates: What You Need to Know Now about The Kerry Decision and More

Ari Kaplan
Partner
Koskie Minsky LLP

Hugh Wright
Partner
McInnes Cooper

A favorite session every year – this is your best opportunity to get up-to-date on the latest case law and regulatory developments and find out how these changes will influence your business. Learn the latest from two of the Canada’s leading pension lawyers.

• Analyzing the most important legal decisions of the past year including the Supreme Court of Canada decision in Nolan v. Kerry
• top tips for charging expenses to the pension plan
• key considerations when making use of surplus pension assets
• Examining current trends in Canadian pension litigation and how to minimize your risk exposure
• Assessing other recent legislative and regulatory developments: How are they impacting pension plan sponsors?

12:00 Networking Luncheon

1:15 Using the Latest Trends in Pension Plan Design to Remain (or Become) Solvent

Caroline Helbronner
Partner
Blake, Cassels & Graydon LLP

Evan Howard
Partner
Osler, Hoskin & Harcourt LLP

• Critical update on solvency funding relief:
• what federal and provincial regulations have been implemented?
• how can pension plan sponsors take advantage of these new measures?
• maximizing the value of solvency funding relief
• understanding the potential impact of various elections and issues
• Analyzing current legislative and judicial requirements related to solvency deficiencies
• What are your options and legal obligations when your fund has a solvency deficiency?
• Comparing and contrasting the respective solvency requirements, challenges and opportunities of:
• defined benefit pension plans
• defined contribution pension plans
• hybrid pension plans
• Minimizing your risk exposure when changing design: Ensuring compliance with:
• the pension plan
• collective agreements
• Examining the trend of moving from DB to DC to minimize employer risks and cut costs
• Key considerations in deciding whether to modify your pension plan to focus on DC plans
• What are the best governance practices for converting from DB to DC?
• Supplemental Employee Retirement Plans: When should you offer a SERP to meet your pension obligations to plan members?
• for whom is a SERP appropriate?
• plan design and funding considerations particular to SERPs
• modifying or terminating a SERP
• analyzing and minimizing tax implications
• when do you have to register a SERP?

2:15 Networking Refreshment Break

2:30 Governance and Financial Risk Management for Pension Plans: Best Practices

Kevin Moriarty
Principal
Mercer (Canada) Limited

• Understanding the impact of interest rates on solvency
• Managing the effect of equity investments on solvency and on contribution levels
• Key considerations in formulating a plan sponsor’s risk budget: Tolerance for contribution variability and more
• What is the role of asset liability modeling?
• Defining and ensuring you are meeting the applicable standard of care

3:30 Strategies for Effective Communication in Turbulent Times: Minimizing Risk When Changing Plan Design or Offering Investment Choice

Susan G. Seller
Partner
Bennett Jones LLP

Communications regarding changes in plan design

• Identifying legal risks in communicating changes in plan design
• What information must you communicate to plan members?
• How much notice must you give for changes to the plan?
• What is the best method of communication?
• What are your legal risks if communication is inadequate or erroneous?
• Communicating with high risk groups: What are your obligations?
• Reducing the threat of litigation: Best practices for pension communications

Communications regarding investment choice in DC Plans

• What are your legal risks and responsibilities regarding communication of investment information and choice?
• What do the CAP Guidelines require?
• Preparing your administrative and governance systems to accommodate different investment choices made by DC plan members
• What is a reasonable number of investment options to offer to employees?
• Formulating an effective investment communication strategy: Practical guidelines
• Effectively communicating risk and return associated with different investment options

4:30 Concluding Remarks from the Co-Chairs

Day 2 – January 22, 2010

8:30 Coffee Served

9:00 Opening Remarks from the Co-Chairs

9:15 Properly Managing Pension Risks in Insolvencies and Restructurings: Minimizing Legal Actions from Retirees and Plan Members

Elizabeth M. Brown
Partner
Hicks Morley Hamilton Stewart Storie LLP

Gary Nachshen
Partner
Stikeman Elliott LLP

• What kind of relief can pension plan sponsors get under CCAA?
• examining recent CCAA amendments to facilitate compromise in pension funding
• Analyzing recent case law on payments to pension plans during restructuring: Nortel and Abitibi
• Best governance practices for properly managing pension plans in an insolvency crisis
• what can employers do to trim costs in the downturn and what are the potential risks?
• what changes to pension plans can employers make if they give enough notice?
• Retiree rights: Exploring critical issues
• altering retiree rights: how can you best manage this sensitive issue?
• what are retirees’ rights and standing to dispute changes that employers want to implement?
• How are pension plan members asserting their rights in insolvency proceedings?
• Overcoming pension funding challenges during CCAA protection and following restructuring
• What relationship should trustees, receivers and monitors have with labour unions during restructuring? What is the role of FSCO?
• What is the future of the Pension Benefits Guarantee Fund?

10:15 Networking Refreshment Break

10:30 Navigating the Complexities of Pension Issues in the Employment Context

Stephanie J. Kalinowski
Partner
Hicks Morley Hamilton Stewart Storie LLP

• What are the rules governing pension issues for discharged employees?
• what are the employer’s obligations on termination of pension plan membership?
• how long must pension plan contributions be continued after employment ends?
• must they be paid during the notice period?
• what written documentation must be provided to the employee?
• When will the extent of a downsizing or restructuring require a partial wind up of the plan?
• What are the pension implications of the Wage Earner Protection Program and the amendments to the Bankruptcy and Insolvency Act? When will these apply?
• Key guidelines for ensuring severance packages adequately address pension issues
• Analyzing the latest employment termination case law impacting pensions
• How do you handle pension adjustments for retirees who are going back to work?
• What are the pension implications of the end of mandatory retirement?
• how can you offer early retirement incentives and avoid human rights claims?
• best practices to minimize liability in this area

11:15 Distressed Mergers and Acquisitions and Restructurings: Your Guide to Managing Pension Risks in Corporate Transactions

Mitch Frazer
Partner
Torys LLP

Jana Steele
Partner
Goodmans LLP

As the number of distressed companies increases as a result of the current market conditions, many companies are turning to M&A to survive and to recover. In this session, learn how to adeptly handle the many and complex pension issues arising in distressed mergers and acquisitions:

• Identifying and understanding key pension issues arising in distressed M&A
• What are the regulatory requirements associated with pensions in mergers and acquisitions?
• Meeting your pre-transaction due diligence requirements
• Evaluating your options and obligations in complex corporate transaction or restructurings
• Ensuring pension plans are properly managed during corporate change
• Key strategies for the successful conversion of pension plans
• Deciding whether to merge the pension plans: Key factors and consequences to consider
• Handling asset and liability transfers
• Recognizing and dealing with critical pension issues in cross-border M&A

12:15 Networking Luncheon

1:30 Critical Cost Considerations Pension Litigation: What are the Risks and Rewards?

Peter McLellan, Q.C.
Partner
Stewart McKelvey

• Getting up-to-date on emerging case law on pension litigation cost awards: Post-Michelin
• Examining the cost risks for plan members when they sue the plan sponsor
• How are costs calculated? How sizeable are recent awards?
• When might costs be awarded against an individual plaintiff?
• When might costs for litigation be payable from the pension plan?
• Assessing the impact of cost awards on pension litigation: Plaintiff and defense responses
• Cost awards at the Financial Services Tribunal: Recent trends

2:15 Networking Refreshment Break

2:30 The Latest Legal Developments Concerning Multi-Employer Pension Plans (MEPPs)

Mary Picard
Partner
Fraser Milner Casgrain LLP

• Exploring the latest legal developments regarding MEPPs
• Canadian Commercial Workers Industry Pension Plan (“CCWIP”) litigation
• Participating Co-ops litigation
• Quebec’s Multi-Marque litigation and Bill 68
• Who should be concerned about these lawsuits? Why?
• What is happening with MEPPs that have Quebec employees?
• Examining the unique features, design and operation of MEPPs
• Critical issues advisors must raise with employers who are considering joining a MEPP
• Overcoming serious challenges posed by MEPPs in today’s economic climate

3:15 Gaining Clarity on the Rules Governing Multi–Jurisdictional and Cross Border Pension Plan Issues

Michael Mazzuca
Partner
Koskie Minsky LLP

Larry Swartz
Principal
Morneau Sobeco

• Getting up-to-date on the latest case law related to multi-jurisdictional and cross border plans
• What is the status of the Canadian Association of Pension Supervisory Authorities (CAPSA) Agreement Respecting Multi-Jurisdictional Pension Plans? How will it address:
• determination of the major authority?
• conflicts of law?
• asset allocation?
• Sorting out jurisdictional issues and determining where to register the plan
• Ensuring you are meeting the additional fiduciary obligations for cross border and multi-jurisdictional plans

4:15 Closing Remarks from the Co-Chairs

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