Debates of Nov. 18th, 2022

Pension Protection Act

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I thank the member opposite and all members who are supportive of the bill. I do believe, now that the controversial severance amendment is out, every member of the House will support the bill. I look forward to that and a little more debate on it.

[Viviane LaPointe, Liberal, Sudbury, ON]

Madam Speaker, I am pleased to participate in the debate on Bill C-228. We are studying this bill at third reading in the House after it was examined by the Standing Committee on Finance.

As reported back to the House by the committee, Bill C-228 would amend the treatment of pension claims in proceedings under the Bankruptcy and Insolvency Act, or BIA, and the Companies' Creditors Arrangement Act, the CCAA.

Under current law, unfunded pension liabilities and unpaid special payments are unsecured claims. Unfunded pension liabilities are the shortfall between a fund's current assets and amounts owed to pensioners. Pension special payments are additional contributions by employers that are sometimes required under pension legislation to reduce a pension deficit over time.

Bill C-228 would give both these pension claims a superpriority. In BIA bankruptcies and receiverships, pension claims would be paid out ahead of secured, preferred and unsecured claims. CCAA and BIA restructuring plans would need to provide for the payment of pension claims to obtain court approval.

As originally drafted, Bill C-228 provided for a five-year transition period before the pension changes took effect. The bill that was sent back to the House after study in committee provides for a four-year transition period, as proposed by the government members.

Bill C-228 would also amend the Pension Benefits Standards Act, 1985, or PBSA, under the responsibility of the Minister of Finance. The only PBSA amendment, as reported back by the committee, would amend the federal superintendent of financial institutions' existing requirement for an annual report to the Minister of Finance on the operation of the PBSA, which is tabled in Parliament. It would add additional content to this report related to the funding requirements of a federally regulated pension plan under the PBSA and require it to be transmitted to provincial counterparts.

I would note that Bill C-228, as referred to committee by the House, dealt with the treatment of both federal and provincial private pensions in insolvency proceedings under the Bankruptcy and Insolvency Act, or BIA; the Companies' Creditors Arrangement Act, or CCAA; and the regulation of federal pensions under the PBSA.

However, during the clause-by-clause study of Bill C-228, the committee broadened the scope of the bill beyond pensions by adding a new privileged claim for termination and severance pay owed to a worker by a bankrupt employer under the federal or provincial employment standards legislation or a collective agreement.

These amounts are currently considered unsecured debt. Under the amended Bill C-228, these debts would be paid in full before the claims of any other unsecured creditor.

The government clearly explained in the House and in committee that it understands the challenges that an employer's bankruptcy can present for retirees, current employees and their community. We continue to listen to the concerns expressed by Canadians on the important issues of retirement security, wage protection, and termination and severance pay.

Our government has taken measures to improve the retirement income and security of all Canadians, including retirees, and to improve the protection of Canadian workers who are owed unpaid wages and termination and severance pay by their bankrupt employers.

No one in the House doubts that Bill C-228 was introduced with good intentions in the interests of pensioners. Having said that, we should be mindful in our continuing debate on the bill that significant concerns were raised by expert witnesses and pension plan administrators during committee study that a superpriority for pension claims may have unintended negative consequences for both pensioners and employees of insolvent employers and the much larger number of pensioners and employees in the Canadian workplace as a whole.

We should also take serious note of the fact that the new preferred claim for termination and severance pay was introduced only during the committee's clause-by-clause consideration of the bill. As such, the committee did not have the benefit of the views of the House at second reading on this new priority claim. It also did not have the opportunity to hear the testimony of expert witnesses and ask questions regarding its potential impact on different employee groups, as well as other stakeholders and creditors in an insolvency proceeding.

Even though all members of the House share the desire of protecting the interests of retirees, we must also consider the significant negative consequences that a superpriority of the unfunded liabilities of a defined benefit pension plan could have for pensioners, employees, businesses and Canadian employers.

First, this superpriority can only protect pensioners from the consequences of the employer's bankruptcy in certain cases. We all know about past cases of bankruptcy where the pension plan deficits were very large, sometimes in the billions of dollars.

During study in committee of Bill C‑228 and similar private member bills, experts, lenders, promoters of pension plans and employers, and even certain unions, noted that a superpriority would not guarantee that pensioners would be fully protected in the event of an employer's bankruptcy if the employer did not have sufficient assets to cover the liability.

It is also crucial that we take note in our deliberations of the potential impact of a pension claim superpriority on the incentives of pension plan sponsors to continue to provide defined benefit pension plans to current employees. During the committee's study of the bill, pension plan experts and plan sponsors predicted that as many as 40% of private plan sponsors could terminate their defined benefit pension plans during the bill's transition period if Bill C-228 were to pass with a superpriority.

Private defined benefit pension plans currently have 1.2 million active employee members who are still accruing defined benefit pension entitlements. We should be very careful about the potential impact of a superpriority on these employees when we consider whether to support Bill C-228, as reported by the committee.

In some cases, retirees and workers are better served if the company can enter into a restructuring agreement and continue operations, which means pension and benefit plans would be funded.

Let us keep in mind that there have been successful restructurings involving unfunded pension liabilities that have taken place under the current processes in the Bankruptcy and Insolvency Act—including Stelco, AbitiBowater and Air Canada—where pension benefits were preserved even though the pension plans were significantly underfunded at the time of insolvency.

As we consider how to best protect pensioners and workers, we must also consider ways to balance the potential credit consequences of a pension superpriority for employers with pension plans. Lenders will price and allocate credit based on the risks of default and non-payment. If a pension deficit is payable ahead of all other claims, a responsible lender must take this risk into account, either through higher interest costs or reduced credit amounts.

The government made important changes to insolvency and corporate laws in 2019 to protect pensioner and worker interests in an employer insolvency. Corporate restructuring was made fairer, more transparent and more accessible for pensioners and workers. Federal corporate law amendments better aligned corporate incentives with the interests of workers and retirees, and provided greater scrutiny of corporate decision-making. Finally, Canada further improved its strong regulation of federal pension plans that already require full solvency funding.

While these measures have improved the retirement and security of employees, the government has also listened to the voices of pensioners and considered more balanced ways to protect their interests rather than a superpriority.

While no OECD country gives unfunded pension liabilities a superpriority—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

I must interrupt the hon. member because the time is up.

The hon. member for Joliette.

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Madam Speaker, I want to begin by informing the House that Quebec is currently in mourning. We just learned of the death of Jean Lapointe, a great writer, composer, performer, actor and comedian who was very involved in society.

On behalf of the Bloc Québécois, I want to extend my sincere condolences to his son, Jean-Marie, to his family, friends and loved ones, and to all Quebeckers. We will remember him for his comedy shows and his songs. He used to say that we learn to live through song. Many of his acting roles had a profound effect on me. Take, for example, his role in the series Duplessis, where he did an extraordinary job of playing “Le Chef”, his roles in various films by my favourite filmmaker Marc-André Forcier, and the role he played in Les ordres. We pay tribute to his memory, his political commitment and the rehabilitation centre that bears his name.

Farewell Jean Lapointe, and thank you.

Let us now talk about the important Bill C-228

We are at third reading of this bill in the House of Commons. That is amazing. I want to sincerely congratulate the hon. member for Sarnia—Lambton for her masterful sponsorship of this bill and for managing to build consensus around a common goal. In committee, members of all parties contributed to the bill, including people like the hon. member for Elmwood—Transcona, who participated in the work and helped improve the bill.

In the House this afternoon, we are beginning third reading of a bill that will make a difference in people's lives, in the lives of workers and especially of the retirees who are entitled to these pensions.

As everyone has acknowledged, there have been several instances in recent decades when companies declared bankruptcy and their defined benefit pension funds were underfunded. That had a devastating impact on the company's retirees. They could no longer collect their full pension because the pension fund they were entitled to was underfunded.

In life, in a market economy based on supply and demand and capitalism, there are risks and bankruptcies occur. If a worker sees his company close and declare bankruptcy, it is a difficult situation, but that person will try to find another job and get on with their life.

What happens to pensioners? As the member for Sarnia—Lambton was saying, what happens to people who are 70 or 75 years old and depend on their pension when they suddenly learn that the company is bankrupt? The company has failed to meet its obligations and pensioners will no longer receive their pension, which is often the minimum amount required to live well or to survive. Those pensioners will no longer receive the full amount. They might lose half of their pension, for example, but they are too old and do not have the energy or the strength to return to work. These are terrible situations, unspeakable human tragedies. That is what Bill C‑228 would fix.

It truly is an extremely important bill. I am very pleased that it has reached third reading stage. I look forward to it receiving royal assent and making a real difference in people's lives.

I also want to acknowledge all the hard work done by my colleague from Manicouagan who was especially invested in this bill. She had introduced a similar bill in a previous Parliament that did not make it through the House. She continued trying, working with the member for Sarnia—Lambton, to see Bill C-228 through the legislative process.

My colleague from Manicouagan has been working closely with union members representing the workers who have gone through this kind of human problem. It was really a good faith, goodwill approach. What can we do to better protect workers? We know that a pension plan is a form of deferred wages.

During the negotiation, the union and management decide on salary and the terms and conditions. A lower salary is accepted in exchange for entitlement to group insurance or more generous pension funds, for example. The pension is therefore a type of deferred salary, and workers are entitled to it. However, we know that under the law, a company can underfund their pension fund for several years and allow shareholders to make more money on the backs of workers because it is failing in its duty.

This bill would make pension funds a greater priority for creditor payment in the event of a bankruptcy. This would take some of the pressure off the shoulders of workers and retired workers and would improve things. As the member for Sudbury said, if this bill is passed, it will not solve every problem. There is no ironclad guarantee and not everything will be resolved. The risk will remain, but it will not be as high. What this bill does is give particular consideration to underfunded pension funds and give them higher priority for creditor payment in the event of a bankruptcy.

One thing we observed in committee and in studies of similar bills was that none of the experts who came to talk to us, including unions, said they should be the top priority. Both pensioners and union members told us they want to give the company a chance to restructure, refinance and come up with a plan to save itself from bankruptcy.

This bill gives mortgage holders priority over pension funds. Everyone recognizes that that is important, although the Liberal Party still seems unsure. Some of our Standing Committee on Finance colleagues are, anyway. I have had personal conversations with a few ministers. Judging from the Liberal member's speech on this bill, there still seems to be some confusion about this.

This is about giving pension funds higher priority while still enabling the company to restructure to avoid bankruptcy. That is what everyone here wants, obviously. That is a very important element.

Several cases have been mentioned, including Sears, Stelco, Nortel, Cliff Natural Resources and White Birch. In all of those cases, the pension plan was not fully funded when the company went bankrupt and the workers are the ones who got shortchanged.

As the Liberal member for Sudbury was saying, pension fund managers, large corporations, or the employer, came to see us to say that they did not really like this. Obviously, they do not like this because they will have to fully fund the pension plans and recognize that the amount owed to workers must be included in the financial statements and paid within a few years, with the necessary flexibility. In my opinion, we found a good balance, but it means less money for shareholders and less money for executives simply because they are being forced to pay what they owe.

The Liberal member who spoke before me did not mention that. Every time the employer or pension fund managers raised an argument, the seniors' advocacy organizations and unions responded clearly and simply by proving that the argument did not hold water.

Employers tried to scare people. The Liberal Party still brings that up, but every argument raised in committee was immediately refuted by parties representing pensioners' interests. Fear tactics are often employed when economic issues and other somewhat complex issues come up. In this case, I think the committee did a good job of rebutting fear-based arguments.

I feel absolutely confident about this bill, but it does not fix every problem pensioners face. There is still a degree of risk, but it is lower. Employers do not like this because they know they will make less money. That is true, but they have to pay what they owe, plain and simple.

In closing, I want to once again acknowledge the incredible work of the member for Sarnia—Lambton. As I said, I am the member for Joliette, and the Quebec MNA for Joliette was Véronique Hivon, a person who was all about cross-party collaboration and always tried to prioritize the common good over partisanship. She accomplished a lot in that respect, and the member for Sarnia—Lambton has accomplished just as much here. I thank her and congratulate her.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am quite pleased to be rising in debate on third reading of Bill C-228. There have been many attempts in the past to try to secure pension protection for workers when their companies go bankrupt. I believe this is the furthest we have come so far, and that has been the result of some good cross-party collaboration, which is often what it takes to be able to accomplish things for workers in this place.

I want to thank the member for Sarnia—Lambton for her collaborative and conciliatory attitude in trying to move her bill forward.

I would also like to thank the member for Manicouagan for her work on this matter and for her co-operation during the negotiations.

I also want to recognize the work of one of my former colleagues, Scott Duvall, who did a lot of work on this subject over two Parliaments and essentially developed the private member's bill that I was honoured to present in this Parliament on the very same issue.

This bill is an interesting case study, if we look at the process it has been through, of how difficult it can be to achieve things for the working people of Canada.

There always seem to be roadblocks and hiccups, and we do not see those same kinds of roadblocks usually put up when the government is trying to do something for corporate Canada. Those things tend to run pretty smoothly. Sometimes New Democrats try to slow it down, but we have only so many seats in this place. That is up to Canadians. That is why we are always working hard to elect more New Democrats so that we have more of an ability to ensure that corporate Canada does not have the run of this place.

In order to get something done for workers, it usually takes some kind of coming together of many disparate things in the right order, at the right time and in the right place. That is pretty hard to do.

We saw that, just the other day, with the member for Winnipeg North. There was some agreement not only to protect the pensions of workers when their companies go bankrupt, but also to go above and beyond and to really do the right thing.

We saw this in the case of Sears workers as well. It was not just their pensions that they lost, but there was a lot of controversy over their severance and termination pay at that time, millions of dollars.

We now have a Parliament that was prepared to do that for working people. Instead, with some procedural fig leaves, we saw the member for Winnipeg North get up and exclude what I take to be a really important part of the bill as it came out, amended, from committee, without actually speaking to the substantive issue.

We just heard from another Liberal MP on this, who did not address the issue of termination and severance pay and why the government was so keen to remove that from the bill.

I think that they owe workers an explanation on the substance of the matter, not on the parliamentary procedure but on why it was that, when there was just about a parliamentary consensus, and if it were not for the Liberals there would have been a parliamentary consensus on the fact that it makes sense to protect the termination and severance pay of workers, why they blew that up, instead of seeing it for the opportunity that it was to do right by workers and to have a gold standard when it comes to protecting them in the case of bankruptcy.

As I said, it is hard to accomplish things for workers in this place. I know because I am part of a caucus that works relentlessly to try to do that.

The Liberals ran on a promise to do better when it came to bargaining collectively with our public servants. In fact, the Prime Minister wrote them all a very nice note when he first got elected, and said that things were going to change, that it was not going to be like it was under the Harper years, when those guys would go for years without a collective agreement.

I met just last week with representatives of a public sector union who represent the thousands of people in Elmwood—Transcona who work at the tax centre. What are they telling us? They have been a year without a contract. The government will not make a wage offer. They are having to go to some kind of mediation because they cannot get the government bargaining in good faith. We see that far too often.

Frankly, when Conservatives have been in government, we have seen that lack of good faith and difficulty in getting contracts for public servants too. That is part of why it is very difficult to get things done for workers in this place.

In the previous government, we saw Bill C-525 and Bill C-377. Folks in the labour movement will remember those bills because they made it easy to decertify a union. They made it harder to certify a union, and they would have required unions to inappropriately disclose their financial position, which matters if one is thinking about a strike, for instance, in order to make the case for better wages and working conditions.

If the employer knows how much is in a strike fund, it is very easy for them to develop a strategy to exhaust the strike, so that was something that was not good, and the Liberals promised to get rid of it. They did, finally. It took a long time after they came to power for Bill C-4 in the 42nd Parliament to pass. I remember encouraging them to do it a lot more quickly. It did not take a lot of time for them to try to pass a deferred prosecution agreement arrangement when SNC-Lavalin came knocking and said that was something it wanted. That appeared quickly in a budget bill, and all of a sudden it was getting done, when it took a year for the legislation to repeal Bill C-525 and Bill C-377.

We have also seen Liberals and Conservatives stand up in this place over the course of many Parliaments now to legislate workers back to work, because God forbid workers get too uppity. They had to shut that down and make sure they were back at work, doing what they were told and working for the wages the government put in legislation.

The Liberals talked for a long time about anti-scab legislation, but until it was put in a confidence and supply agreement it was very hard to have any confidence they would do it, and they still were not going to do it the right way until the NDP said very clearly that anti-scab legislation should not apply just when there is a lockout, but also when there is a strike. We know the Conservatives are not supportive of anti-scab legislation, and that is why it is hard to get things done around here for workers.

Even for 10 paid sick days during the pandemic, we had to argue again and again that it ought to be done. We are told that next month it should finally be in place. We have had to wait a good long time. Do members know who did not have to wait? It was big companies at the beginning of the pandemic, when big banks and others got access to liquidity very quickly, because the government was concerned about them. We have seen that when the government is concerned, it is able to act quickly, and we often see long delays when it comes to doing the right thing by workers.

I am sick of it, and that is why this has been a very hopeful process, working with the member for Sarnia—Lambton and the member for Manicouagan, because something has been coming together here that is a good thing for workers and that we have been working to institute for a long time.

Not only was it going to be just the next little step, but it was going to be the gold standard. We see again that in this institution there are so many ways to pick off victories for workers, sometimes when we least expect it and sometimes for reasons that appear to have nothing to do with the substance but actually have everything to do with the substance in the bill, because we saw the parliamentary secretary for industry come to the finance committee and sing some kind of big tale and sad song from the financial industry about how hard it was going to be on them and how nobody was ever going to have any access to credit or anything like this. That was right out of the mouth of industry through the mouth of the parliamentary secretary.

These are all arguments that have been considered in the past. Parliament has studied this issue many times before. There was no new information in that. The fact remains that when we have a bankruptcy in this country, it is workers who are left holding the bag. It is wrong, and it should change. When we look at the percentage of businesses that go bankrupt and then the percentage of those that actually have defined benefit pension plans, the fact of the matter is that we are talking about a very small percentage of any one financial institution's portfolio. They can surely bear that risk and carry that load.

Most businesses they invest in succeed. We know that, and that is why we can say with confidence that this is something we can do to protect the pensions of Canadian workers. I wish I were saying we could protect the severance and termination pay also, because we know the big banks and financial institutions are going to get along just fine. The people we should be concerned about in this place are the people who work for 20 or 30 years and do not get a second chance to have a retirement nest egg.

They depend on that, and they went to work on that understanding, and when something goes wrong that is far beyond their decision-making or control, they need to know that the future they worked for is in place for them, so I am very glad we will be doing that with their pension. I am angry we are not doing that for termination and severance pay because the Liberals decided to go for sneaky tricks instead of a straight-up vote on the issue in this Parliament, and I look forward to working with other members of this place to see if folks in the other place, the Senate, will have the good sense to do what we should have done here.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, it is a pleasure to be here, or least to be with the House virtually. It is always an honour to rise on behalf of the good people of Central Okanagan—Similkameen—Nicola.

I would like to thank the member for Sarnia—Lambton for her leadership in this Parliament on this issue. God knows we need these issues brought up because, in some cases, the issue around pension reform and the need to resolve it is long standing and has happened over periods, not just of governments, but of decades.

We have two issues in this particular space when it relates to pensions. One is legacy pensions, which is broadly what we are dealing with today. The other one is new ones, meaning that fewer companies are deciding to use the standard defined benefit pension plan. I am just going to take a quick moment to share a few reasons why that is.

Obviously the business environment has changed. Technologies have come in. We have seen new business models operating that challenge the status quo and have created all sorts of issues for legacy businesses as technology continues to change things.

The government tried to deal with this by bringing in Bill C-27 in its first mandate, but that particular bill went nowhere because the government probably did not do its homework and got hung up over one particular area that people were contesting around conversion, the conversion of a defined benefit to a target pension plan.

The reason why I raise this issue is because the government has failed when it comes to addressing both legacy issues, as well as trying to invoke new methods for bringing in benefits, whether they be a target-based benefit or a defined benefit. If we want to see more people having secure retirements, then that is part of the solution. I do not think the government has done a very good job, which brings me back to legacy issues.

Defined benefit pensions, those are usually handled, most of the time, by the companies themselves. There is no legislation that says that when they are in a surplus position, who actually owns that. Is it the actual company or is it the pensioners or the current workers? That problem, unfortunately, does not happen that often because it is very seldom that these particular private, defined benefits are running at a surplus. In fact, it is the opposite.

We have seen cases such as Sears. I represent a riding that has a large percentage of seniors. They rely on that income. It breaks one's heart when one finds out that they are no longer going to be receiving the benefit they paid into.

There has been inaction on this by the Liberal government since it came into office, but I would not put it all on them. If we just look to those who are fortunate enough to have a pension program, and it is usually in the public sector, the answer has already been given by successive governments over the decades. If there is a shortfall, the taxpayer will fill that gap. However, for these private pensions, that has not been answered.

Unfortunately, we have seen recessions. We have seen where stock markets have been hit hard, in the early 2000s, obviously in the financial crisis in 2008-09, and the subsequent great recession, and now we are looking at where there is a lot of talk about a possible recession. This is the worst time to be bringing these things up.

When these issues happen, when scarcity is abound, this is where everyone tightens up and demands to have what they are owed. The member for Sarnia—Lambton has been trying, struggling through the process of a private member's bill, working through committee, to put a new balance in place that would at least address this.

We do have the Office of the Superintendent of Financial Institutions. Bill C-27 that I referred to earlier did talk about having more rules and oversight in place that would force new target benefits to come up with plans to bring themselves back into a surplus position when there is a drop.

That is really important because joint-sponsored pension plans often have these things where they will, on a temporary basis, cut some secondary benefits to smooth things out, and once the plan comes back into balance, then the regular benefits continue. Those kinds of tools, where a pension plan can smooth out those outflows to make sure there is always a plan to get back into surplus, work. It has been shown in joint-sponsored plans, and it could work in defined benefit programs as well, but the government has a responsibility to start the discussion.

Unfortunately, the government seems to have taken the opinion that, if one touches it, one has basically bought it. It has, so far, decided not to enter into this space since its retreat from Bill C-27. Again, this country deserves better. It deserves to have both certainty for the existing legacy pension plans out there in the federal space and, I believe, an overall discussion on provincial plans. So far, when it comes to that kind of discussion, successive ministers of finance, whether it be former minister Morneau, who is the minister no more, as I like to joke once in a while, or the current Minister of Finance, they have not made this a priority. Thus, this is where members of Parliament need to fill the gap.

The superpriority, although it is an essential process that has been pointed out by the Canadian public, where they feel that if the government cannot put in place a framework that assures them of that, then, by goodness, they should receive superpriority in the Bankruptcy and Insolvency Act at the very end. It is an option that will have trade-offs in the corporate side, where it will make it in some cases harder for corporations to receive financing for their bonds. However, in the absence of better leadership by the government, members of Parliament have been forced to do this.

It is terrible that we have a government in office that votes down, or I should say denies, unanimous consent. Members of Parliament wanted to see the superpriority component of this bill included. For the Liberal government to continually say no and use whatever tools it can just shows the government is completely opposed to anything in this space. That is lamentable because ultimately it is Canadians who do not have an assured pension, such as public servants or most of us, if we are vested, do.

I would encourage the government to come clean. I would encourage Canadians to talk to their members of Parliament. Most of all, I would encourage the government to start taking this issue seriously, put forward consultations with both provincial governments and the Canadian public on how it intends to deal with legacy issues if it is not going to go forward with the Bill C-228 provisions presented by the good member for Sarnia—Lambton.

I appreciate the opportunity to speak today and wish all of my colleagues a good day.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The time provided for the consideration of Private Members' Business has now expired and the order is dropped to the bottom of the order of precedence on the Order Paper.

It being 2:31 p.m., the House stands adjourned until next Monday at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 2:31 p.m.)