Metropolitan Toronto Police Benefit Fund
Respecting By-law No. 181-81 (Metropolitan
Corporation), Section 24 Refund, Proposed
Widening of Entitlement
The Administration Committee recommends the adoption of the Recommendations of the Board of Trustees of the
Metropolitan Toronto Police Benefit Fund embodied in the communication (March 12, 1999) from the Board
Secretary, Metropolitan Toronto Police Benefit Fund, viz:
"The Board of Trustees recommended to the Corporate Services Committee that it:
(1)amend Section 24 of By-law No. 181-81 (Metropolitan Corporation) to allow the payment as described in
subclause (b)(i) thereof to all currently retired members who at the time of retirement had 30 years of service and
were at least 50 years of age, without the requirement to receive an actuarial reduced pension under section 19; and
(2)grant the authority for the introduction in Council of the necessary Bills to give effect to Recommendation No.
(1)".
The Administration Committee submits the following communication (March 12, 1999) from the Board Secretary,
Metropolitan Toronto Police Benefit Fund and Metropolitan Toronto Pension Plan:
The Board of Trustees of the Metropolitan Toronto Police Benefit Fund at its meeting held on February 26, 1999, had
before it a report dated February 13, 1998, from the City Solicitor, respecting By-law No. 181-81 (Metropolitan
Corporation), Section 24 Refund, Proposed Widening of Entitlement; and recommending that this report be received for
information.
The Board of Trustees recommended to the Corporate Services Committee that it:
(1)amend Section 24 of By-law No. 181-81 (Metropolitan Corporation) to allow the payment as described in subclause
(b)(i) thereof to all currently retired members who at the time of retirement had 30 years of service and were at least 50
years of age, without the requirement to receive an actuarial reduced pension under section 19; and
(2)grant the authority for the introduction in Council of the necessary Bills to give effect to Recommendation No. (1).
The Board of Trustees also:
(i)requested the City Solicitor to draft the appropriate amending by-law respecting Recommendation No. (1), and submit
such draft by-law directly to Corporate Services Committee for consideration with this matter.
The Board of Trustees adopted the foregoing recommendations and authorized and directed the appropriate City officials,
and the Chief Financial Officer to take the necessary action to give effect thereto.
The Administration Committee also submits the following report (February 13, 1999) from the City Solicitor,
entitled "By-law No. 181-81 (Metropolitan Corporation) Section 24 Refund, Proposed Widening of Entitlement:"
Recommendation:
It is recommended that this report be received for information.
Background:
At its meeting of November 20, 1998, the Board of Trustees had before it
(i)a communication dated November 18, 1998, from Mr. Paul Walter, Trustee, setting forth, inter alia, the text of a
motion recommending that the City Solicitor be requested to draft an amendment to section 24 of By-law No. 181-81 to
make the refund therein provided for applicable to all members who at retirement are at least 50 years of age and have 30
years of service, or who receive a pension pursuant to the permanent partial disability provisions; and
(ii)a draft amending by-law that would accomplish the desired modification of section 24, prepared by Mr. Derek Brown,
City Legal Services, at the request of Mr. Art Lymer, Trustee.
At that time, the Board requested the City Solicitor to submit a report as to historical origin of the refund, the legality of the
proposed amendment and the impact on the Fund.
Discussion:
Current section 24:
A copy of the office consolidation of section 24 of By-law No. 181-81 as amended to date is attached to this report as
Appendix I. The section requires that to obtain the refund or equivalent supplementary pension, a member must be entitled
to a pension under section 14 (permanent partial disability) or section 22 (early retirement once at least 50 with 30 years'
service) AND have elected to receive a pension under section 19 (actuarial equivalence to full accrued pension credit;
i.e., reduced to reflect the commencement of the benefits before the normal retirement age (NRA) of 60) or, if the member
is already 60, to receive a normal pension under section 11.
History:
In his 1978 interest award, arbitrator Joseph Samuels refused to implement the Associations request for a switch from
career average earnings to final average earnings (FAE) as the basis for pension calculation, but did recommend that the
parties commence discussions concerning the possible harmonization of the Benefit Fund plan and OMERS".
In their 1979 settlement relating to pensions, the Association and the Metropolitan Board of Commissioners of Police
agreed that, commencing January 1, 1980, Fund benefits shall be identical to, but no greater or less than and on the same
basis as the FAE formula benefits under OMERS, being 2 percent times average annual contributory earnings for best
consecutive 60 months times years of service to a maximum of 35, subject to CPP reduction, plus Type 3 Supplemental
(full pension if retiring at age 50 or older with 30 or more years service or with permanent partial disability).
The additional cost to the Fund was to be borne partly by an increase in employee/employer matching contributions -- the
existing contributory rate of 7 percent would become 7½ percent in 1979, and from 1980 would rise to 9 percent for
earnings in excess of the YMPE (Years Maximum Pensionable Earnings) under the Canada Pension Plan -- and the
balance, including any experience deficiency, by the Police Board, to whose benefit any surpluses would accrue. The
settlement made no reference to refunds or supplementary pension in lieu thereof.
It was made clear that the long-standing right of a member who was at least 50 years of age and had 30 years of service to
retire on a full pension (30-and-out) or on a reduced pension with fewer years of service (at least 25) would continue. The
reductions agreed to in 1979 were somewhat larger than they had been, although they were subsequently improved and
eventually eliminated.
At that time, the basic OMERS early-retirement benefit, set forth in section 16 of the Regulation, was to elect, within the
ten years preceding NRA, an immediate pension actuarially equivalent (i.e., with smaller monthly payments) to a normal
pension commencing at NRA. However, if the employer entered into a Type III (or ) Supplementary Agreement with
OMERS, a member with 30 years service or a permanent partial disability who exercised the basic early-retirement option
for a reduced pension would receive a supplementary pension to bring the total benefits up to those of an unreduced
pension. There was such a Type 3 Agreement in place for officers belonging to OMERS, who contributed an additional 1
percent of their earnings beyond the basic OMERS rate of 6½ percent plus 8 percent beyond YMPE (matched by the
employer); sections 6 and 7 of that Agreement dealing with the calculation of the supplementary pension and benefits in
lieu of thereof, are reproduced as Appendix II to this report.
Although not provided for in the Type 3 Agreement or in the OMERS Regulation, in 1979 the OMERS Board established a
policy that any member of a class paying Type III contributions who does not become eligible for the Type 3 additional
benefit was to be provided with an "additional pension from his own contributions plus interest" (see Appendix III to this
report).
Mr. Jack Horsley of the Metropolitan Legal Department had responsibility for preparation of the new by-law implementing
the changes called for by the 1979 pension settlement. In connection with a redraft which had been sent to Mr. Walter in
his then capacity as President of the Association, but which did not yet contain what is now section 24, Mr. Walter sent to
Mr. Horsley a letter dated August 11, 1981 arising from actuarial advice. Item 8 of that letter (reproduced as Appendix IV
to this report) pointed out the additional pension provided by OMERS from a member's Type 3 contributions plus interest
if the member does not retire early, and requested that a section be added to provide that 1 percent of contributory earnings
from January 1, 1980, be treated as voluntary additional contributions (presumably referring to what is now clause 31(2)(c)
of By-law No. 181-81 stating that a member of the Fund who retires without electing to transfer such contributions to a
registered retirement savings plan be paid a pension on the basis of such contributions).
Mr. Horsley responded to this request in Item 8 of his letter to Mr. Walter of September 15, 1981 (reproduced as Appendix
V to this report) by advising that he understood that reference had been made to "clause 7 of the supplementary [Type 3]
agreement" and suggesting the original wording of section 24.
By-law No. 181-81 was enacted to include that wording and subsequently amended to read as shown in Appendix I to this
report.
Commentary:
Mr. Horsley accepted the Association's position that for the benefits from the Fund to be "identical to, but no greater or
less than and on the same basis as" those under OMERS, including the Type 3 Agreement, they had to include an
equivalent to the benefit received by OMERS members in lieu of the early retirement supplementary pension. From this
standpoint, it was irrelevant that the employer-matched 1 percent increase in the contribution rate for Fund members
beginning in 1979 in no way corresponded to the additional 1 percent charged to OMERS members in connection with the
Type 3 benefits (Fund members had had a 30-and-out privilege for many years without any "extra" contribution; the
increase in contribution rate did not arise because of, nor was it earmarked to provide a source of special funding for, that
privilege), or that Fund members who received a benefit under section 24 would in effect get the improved FAE-based
benefits without full payment of their share of the negotiated increase from the old CAE contribution rates.
Section 24 was in step with the Type 3 Agreement in requiring in clause 24(a) that a pension under section 19 of the by-law
(i.e., actuarially reduced) be elected as a precondition of entitlement to the refund, since section 6 of that Agreement (see
Appendix II) stated that the supplementary pension was a top-up payment for any member who had elected an early
retirement pension under section 16 of the Regulation (i.e., actuarially reduced). It was also in step with the 1979 OMERS
policy of granting a supplementary pension for a member who "doesn't become eligible" for the Type 3 benefit, in that it
specified election of a section 11 pension (normal pension) as an alternative to section 19 for a member who has reached
NRA.
In fact, section 24 went beyond OMERS since it provided for a refund as an option at retirement -- at the time, section 18
of the OMERS Regulation in 1979 (referred to in clause 7(a) of the Type 3 Agreement; see Appendix II) contemplated
refunds to a member only on cessation of membership for reasons other than death or retirement, or to a widow(er), a
designated beneficiary or the member's estate. As it happens, the "pension adjustment" requirements that were put into the
Income Tax Regulations about a decade ago now preclude the possibility of supplementary pensions for post-1989 service.
Nowhere did the OMERS scheme of benefits in existence in 1979 permit a member to double-dip by retiring below NRA
and receiving a supplementary pension based on "unused" Type 3 contributions, which is what has been suggested for
Fund members (substituting a refund for a supplementary pension). Accordingly, in placing the restrictions it does on
entitlement to a refund, section 24 has never been defective, or at odds with the original intent either of the 1979 settlement
or the 1981 correspondence between Messrs. Walter and Horsley.
It is true that OMERS eventually dispensed with the collection of extra contributions for the 30-and-out privilege, and
made blanket refunds to all active Type 3 contributors. If this circumstance is put forth as the justification for an
amendment to section 24 permitting a refund to all members, the matter is in the realm not of legal interpretation but of
policy toward post-1979 OMERS improvements, keeping in mind that under the 1979 settlement, the Police Board did not
oblige itself to make the benefits under the Fund identical to those under OMERS as same might evolve over the years, but
rather only as at the time of that settlement. Furthermore, the Fund has never had a two-tier system under which
supplementary benefits could be purchased by paying additional contributions and has never been in a financial position so
favourable that it could afford to reduce future contributions.
If the issue is characterized as granting to members a refund of the part of their contributions attributable to the 30-and-out
privilege, questions will arise as to the magnitude of that part (presumably significantly less than the ½ percent stipulated
in item 24(b)(i)(B) of By-law No. 181-81) and the appropriateness of making a refund of a portion of contributions that
were never separately collected or regarded as the source of separate funding for that privilege (as they were in OMERS)
and for which no across-the-board reduction in the contributions of active members (and the employer) has been or is
intended to be implemented.
Legality of Refunds:
Section 8502 of the Income Tax Regulations sets out the conditions to which a pension plan must adhere to avoid
revocation of its registration. Clause (d) thereof is headed "permissible distributions", and the only return of contributions
provided for (and hence permitted) are those described in subclause (iii) "to avoid the revocation of the registration of the
plan" or under subclause (iv) with respect to a defined benefit provision, "pursuant to an amendment to the plan that also
reduces the future contributions that would otherwise be required to be made under the provision by members". Subclause
(v) permits interest to be paid in connection with subclause (iv) returns.
Section 63 of the Pension Benefits Act prohibits entitlements to refunds with the exception of additional voluntary
contribution and interest, payments under the 50 percent rule and refunds on termination of employment where there is no
deferred pension.
In light of the foregoing, it seems that even the existing provisions in section 24 for refunds are of doubtful validity as
currently worded, although insofar as they can be characterized as predetermined conditional benefits they may be valid.
Since the specified percentages were never identifiable parts of the contribution formula, they could not very well be
deemed (retroactively) to be voluntary additional contributions.
Extension of the "refund" to all members could possibly be accomplished as a distribution of surplus -- subclause
8502(d)(vi) of the Income Tax Regulations includes "a payment in full or partial satisfaction of the interests of a person in
an actuarial surplus that relates to a defined benefit". Such an approach would probably be acceptable under the Pension
Benefits Act as well, since the restrictions on distribution of surplus to employers do not apply to such distributions to
employees.
Insofar as an amendment affected active members, it would be a collective-bargaining issue and would require the
concurrence of both the Police Association and the Police Services Board before submission to Council.
Cost:
The actuary has advised that if the by-law is lawfully amended, the cost to the Fund of providing benefits in accordance
with the draft by-law referred to above (i.e., making a payment to all pensioners who did not qualify for benefits under
clause 24(b) when they retired and to all currently active members as they retire in the future) would be about
$4,000,000.00. After the possibility of making entitlement to such benefits universal was raised with the actuary some time
ago, the reserve already established with respect to clause 24(b) was gradually increased until it is now at that amount, but
the actuary points out that this increase took place not in acknowledgment that the existing liability of the Fund under that
clause was of that magnitude, but rather out of a desire to be conservative (i.e., in case the clause were to be amended to
implement the possibility).
Contact Name and Telephone Number:
Derek Brown at 392-8055.
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Appendix I
By-Law No. 181-81
Other Benefits
Supplement-24.A member entitled to a pension under section 14 ((Permanent partial disability)) or
ary benefit22 ((early retirement with 30 years of service)) may, in lieu thereof, elect to receive on retirement.
(A)a pension under section 19 ((actuarial equivalence to full accrued pension credit)) or, if the member has reached his
normal retirement date, a pension under section 11 ((normal pension)), and
(b)either:
(i)a refund of an amount equal to the total of:
(A)1 per cent of the member's contributory earnings from January 1, 1980, to April 3, 1984; plus
(B)one-half of 1 per cent of the member's contributory earnings after April 3, 1984; plus
(C)interest on the subtotal of the percentages described in items (A) and (B), at the rate of 3 per cent per annum up to the
31st day of December, 1977 and 5 per cent per annum thereafter, compounded yearly in respect of the completed months
from the end of the year in which the contributions were paid into the fund; or
(ii)a supplementary pension payable, co-incident with and on the same terms and conditions as the pension referred to in
clause (a) in an amount which is actuarially equivalent to the refund described in subclause (i). (By-law No. 33-83 effective
January 1, 1982 and By-law No. 147-84 effective December 4, 1984; re-enacted by By-law No. 66-94 effective January 1,
1988).
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Appendix II
Type 3 Agreement (OMERS)
Early Retirement Supplementary Pension
6.(1)An early retirement supplementary pension is payable under this Plan to a covered member who:
(a)retires within the 10 year period before his Plan normal retirement date; and
(b)has earned at least 30 years of Early Retirement Qualifying Service or has become permanently partially disabled; and
(c)elects to receive an early retirement pension under section 16 of the Regulation.
(2)The early retirement supplementary pension shall be payable coincident with and under the same terms and conditions
and subject to the same limitations as the member's early retirement pension so elected in paragraph (c) of subsection (1).
(3)The early retirement supplementary pension payable to a covered member under this Plan shall be equal to the sum of:
(a)the amount by which the early retirement pension referred to in paragraph (c) of subsection (1) is less than the amount
of normal retirement pension calculated in respect of the covered member in accordance with section 12 of the Regulation
using the same pensionable earnings and credited service used to calculate such early retirement pension; plus
(b)the amount, if any, by which the pension from an approved pension plan or prior service agreement of the Employer
payable in respect of the covered member's Plan credited service and payable to the covered member on the date of his
early retirement referred to in paragraph (c) of subsection (1) is less than the amount of pension from such approved
pension plan or prior service agreement which would have been payable to the member on his Plan normal retirement date.
Other Benefits
In lieu of the early retirement supplementary pension payable under section 6 of this Plan, there shall be payable,
coincident with and under the same terms and conditions and subject to the same limitations as the basic benefits;
(a)a refund of contributions plus interest to the credit of a covered member under this Plan, in the manner prescribed in
section 18 of the Regulation, or
(b)a transfer of the present value of any supplementary pension to the credit of the covered member under this Plan, in
accordance with the manner prescribed in section 22 of the Regulation or subsection 10 of section 23 of the Regulation.
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Appendix III
Ontario Municipal Employees Retirement Board
2 Bloor Street West, (27th Floor), Toronto, Ontario M4W 3E2 (416) 967-0637
May 25, 1982
To Whom It May Concern:
At the meeting of the Ontario Municipal Employees Retirement Board held on March 16, 1979, the Board established a
policy regarding Type 3 Supplementary Benefits, i.e., where all members in a class are required to contribute towards the
cost of a type 3 supplementary benefit and a member doesn't become eligible for such a benefit, an additional pension be
provided for the member from his own contributions plus interest at the rate of interest used each year on the total funds
held in the agreement.
G. A. Tyson
Director
Pension Administration
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Appendix IV
Walter Letter of August 11/81
(8)We understand that an employee's share of the additional contributions for an OMERS type 3 supplementary benefit
is accumulated with interest at the rates actually earned by OMERS until his retirement, and is then applied towards
offsetting the capitalized value of the excess of his full accrued pension without actuarial reduction over the reduced
pension that he would have received without the type 3 supplement. If the employee does not retire earlier than his normal
retirement age, or if he does retire early but the accumulation of this share of the additional contributions is more than the
amount needed to offset the above capitalized value, OMERS converts the excess into an additional pension on his behalf
on an actuarially equivalent basis.
A section should therefore be added to the draft providing for the same treatment as voluntary additional contributions of
employee contributions to the Benefit Fund of 1 percent of contributory earnings since January 1, 1980 that is applied as
described above to the accumulation of an OMERS members' share of the additional contributions for the OMERS type 3
supplement that is not used to offset the capitalized value of the excess of his full accrued pension without reduction over
the reduced pension that he would have received without the 30 year retirement provision.
We enclose herewith a copy of the letter we sent today to the Metro Police Commission regarding certain other matters
which we believe should be included or changed in the revised By-law. You will be contacted further after those matters
have been finalized between the contracting parties.
Yours truly,
Metropolitan Toronto Police Association
per:
Paul Walter
President
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Appendix V
Horsley Letter of September 15/81
(8)You appear to be referring to clause 7 of the supplementary agreement. (copy attached) Since I am not sure, may I
have your comments on the suitability of adding after section 23 in the draft the following:
Other Benefits
24.A member entitled to a pension under sections 14 or 22 may, in lieu thereof, elect to receive on retirement:
(a)a pension under section 19 or, if the member has reached his normal retirement date, a pension under section 11;
and
(b)a refund of an annual amount equal to 1 percent of the contributions made by him under section 8 since January 1,
1980 plus interest, in the manner prescribed by section 23, or a supplementary pension payable, coincident with and on the
same terms and conditions as the pension referred to in clause a in an amount which is actuarially equivalent to such
refund.
The Administration Committee also submits the following report (May 5, 1999) from the Chief Financial Officer
and Treasurer:
Purpose:
To comment on the recommendations of the Board of Trustees of the Metropolitan Toronto Police Benefit Fund in regards
to the proposed widening of the entitlement to a refund of contributions to members who retire with more than 30 years of
service.
Funding Sources, Financial Implications and Impact Statement:
Not applicable.
Recommendation:
It is recommended that the Corporate Services Committee refer these recommendations to the Toronto Police Services
Board for their concurrence.
Background:
The Corporate Services Committee had before it a communication from the Secretary, Metropolitan Toronto Police Benefit
Fund advising that the Board recommended to the Corporate Services Committee:
(1)to amend Section 24 of By-law No. 181-81 (Metropolitan Corporation) to allow the payment as described in subclause
(b)(i) thereof to all currently retired members who at the time of retirement had 30 years of service and were at least 50
years of age, without the requirement to receive an actuarial reduced pension under section 19; and
(2)the authority be granted for the introduction in Council of the necessary Bills to give effect to Recommendation No.
(1).
The Board of Trustees had a request from Mr. Paul Walter, Trustee to amend Section 24 of By-law No. 181-81 to make the
refund provided for applicable to all members who at retirement are at least 50 years of age and have 30 years of service, or
who receive a pension pursuant to the permanent partial disability provisions. The Board requested a report from the City
Solicitor, which was attached to their communication to the Corporate Services Committee, on the historical origin of the
refund, the legality of the proposed amendment and the impact on the Fund. This report was forwarded to the Board for
their information at their meeting of February 26,1999.
Discussion:
The report of the City Solicitor (Appendix 1) outlines the history and legal issues involved in the granting of the refund of
contributions requested by the Board of Trustees. The City Solicitor concludes that "in placing the restrictions it does on
entitlement of a refund, section 24 has never been defective, or at odds with the original intent either of the 1979 settlement
or the 1981 correspondence between Messrs. Walter and Horsley".
The Solicitor also addresses the legality of refunds. He concludes that the "section 24 refunds are of doubtful validity as
currently worded". He suggests that the extension of the "refund" to all members could possibly be accomplished as a
distribution of surplus. Thirdly, he advises that the actuary has reserved for the cost of this improvement.
A draft by-law prepared by City Legal Services to implement the changes recommended is appended to this report.
Conclusion:
This issue has been part of labor negotiations between the Police Services Board and the Toronto Police Association. In
light of this concurrence from both parties should be sought before the recommendation of the Board of Trustees is
implemented.
Contact Name:
Ivana Zanardo
Director
Pension, Payroll and Employee Benefits
397-4143
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The Administration Committee reports, for the information of Council, having also had before it the following
communications:
(1)(August 24, 1999) from the Manager, Compensation and Benefits, Toronto Police Service, addressed to Mr. Ron
Coopman, Metropolitan Toronto Police Benefit Fund, advising that the Toronto Police Service Board and the Toronto
Police Association have reached a memorandum of understanding dealing with the Police Benefit Fund issues on their
1999 Collective Bargaining table; and that the parties agree that they support changes to By-law No. 181-81 as requested
by the Trustees of the Metropolitan Toronto Police Benefit Fund, namely:
(1)the plan should be converted to a non-contributory plan subject to annual review, effective January 1, 1999; and
(2)the basic percentage for spousal pensions be increased to 66 2/3 percent from 60 percent for all active members,
effective July 1, 1998; and
(2)(October 4, 1999) from the Manager, Compensation and Benefits, Toronto Police Service, addressed to Mr. Ron
Coopman, Metropolitan Toronto Police Benefit Fund, providing a further update to his communication dated August 24,
1999, dealing with the Metropolitan Toronto Police Benefit Fund.
