Sears Canada Inc.

• December 29, 2018

  On December 19, 2018, three lawsuits were filed by the Monitor in the Sears CCAA Proceedings, the Hon. Douglas Cunningham, Q.C. the Litigation Trustee as appointed by the Sears CCAA Court, and Morneau Shepell as the replacement Plan Administrator for the Sears Registered Retirement Plan.‎ The claims focus on the declaration of a $509M dividend that was declared by the board of directors of Sears Canada on December 6, 2013. To view the Monitor’s claim against the dividend as a transfer at undervalue, click here. To view the Litigation Trustee’s claim for breach of fiduciary duty, breach of duty of care, oppression, and conspiracy against the former directors and officers of Sears Canada, click here. To view Morneau Shepell’s claim for breach of fiduciary duty to the Pension Plan as a result of paying the dividend, click here.

  A case management judge has been appointed by the CCAA Judge to manage the litigation and set timetables for the completion of major steps.

  Representative Counsel sits on a Litigation Committee with other major creditors that regularly meets with the Monitor, Litigation Trustee and Morneau to review the status of the litigation.  We are working closely with the court-appointed Representatives, and we will update the website with developments in the litigation.

• November 30, 2018

  On October 18, 2018, Representative Counsel entered into a tentative settlement with the CCAA Monitor, along with the Ontario Superintendent of Financial Services on behalf of the Ontario Pension Benefits Guarantee Fund, and Morneau Shepell (the firm appointed as wind up administrator of the Sears Canada Pension Plan), to settle the motion we filed in the Sears Claims Process claiming a deemed trust priority for the Sears Canada Pension Plan members in the amount of the wind up deficit (approximately $260 million) in the Sears Canada Pension Plan.

  The settlement is subject to conditions which must be fulfilled before it becomes a binding agreement.

  The settlement will treat the pension deficit claim at 2½ times the actual amount of the pension wind up deficit, or a claim in the estate of Sears Canada of approximately $650 million for distribution purposes from the estate of Sears Canada.

  At this stage, the vast majority of assets of Sears Canada have been sold and there is only expected to be about $180 million available for distribution to all of Sears Canada creditors. Borrowing from economic theory, the law of diminishing returns applies in this case. Despite its merits, the pension deficit deemed trust claim was opposed by the Monitor and other creditors and would have likely led to protracted litigation and appeals. Most of the litigation costs opposing the claim would have been paid from the estate of Sears Canada. The longer the deemed trust litigation continued, the less there would be left in the estate for the claims of Sears Canada Pension Plan members and other retiree claims. In addition, litigation risk is always a factor.

  Pursuant to the settlement, the pension deficit claim (accepted at 2½ times the actual deficit amount) will also receive its share of any litigation proceeds that are recovered in the upcoming litigation.

  In addition to the pension deficit claim, the claims we submitted on behalf of Sears retirees for their terminated health and life insurance claims (claim amount of approximately $421 million), the purchase discount claim (for $13.7 million), and the unfunded supplemental pension claim (amount under discussion with the Monitor) remain in the estate as accepted claims and eligible retirees will receive a distribution in the future. The total amount of retiree claims in the estate, including the pension deficit claim of approximately $650 million, is therefore 1.2 billion.

• October 25, 2018

  Status of motions for pension priority based on PBA deemed trust and lien and charge

  Recently, our firm as Representative Counsel, along with Morneau Shepell and the Superintendent of Financial Services, have been in negotiations with the Monitor with respect to settling the motion we filed on behalf of the Sears Pension Plan members, and the Joint FSCO/Morneau motions for a priority payment to the Sears Pension Plan with respect to the wind-up deficit owing by Sears to the pension plan based on the Ontario Pension Benefits Act deemed trust and lien and charge priority provisions.

  Last week, we, along with Morneau and FSCO, entered into an agreement with the Monitor to settle the pension plan deemed trust and lien and charge motions.  This agreement is subject to certain conditions.  While these conditions are being worked on, we have agreed to adjourn the motions that were scheduled for November 1 and 2, 2018. On October 22, 2018, we attended before the CCAA Judge who granted the adjournment. To view the Endorsement, please click here.

  We will keep you apprised of developments with respect to the settlement.

• July 23, 2018

  Deemed Trust Motion

  On Friday, July 20, 2018, our firm, on behalf of all retirees and former employees of Sears Canada with pension claims, filed a motion with the CCAA Court seeking, among other things, a declaration that the amount of the pension wind up deficit (the “Wind Up Deficit“) is deemed to be held in trust by the company for the beneficiaries of the Sears Canada Plan.

  Under section 57(4) of the Ontario Pension Benefits Act, the deemed trust captures an amount owing by Sears Canada to the plan that has not been paid.   We are seeking a declaration that this deemed trust applies to the Wind Up Deficit of the Sears Canada Plan.

  Our motion also seeks a further declaration that this deemed trust has priority ahead of all the other remaining creditors in the estate.  We are, therefore, seeking an order from the court directing the Monitor to pay the amount of the Wind Up Deficit from the assets in the estate of Sears Canada into the fund of the Sears Canada Plan.

  In addition, we are seeking a declaration that Morneau Shepell, as the replacement plan administrator, has a lien and charge over the same amount of the Wind Up Deficit in favour of the plan.  This is an additional secured interest over the remaining assets of the Sears Canada estate in favour of the Sears Canada Plan, in the event that our deemed trust claim is not successful.

  A copy of our motion materials can be found here.  We expect this motion to be heard in the fall.  If successful, we expect that most of the remaining assets of the Sears Canada estate will go towards reducing the Wind Up Deficit.

• July 6, 2018

  Mediation on June 13-14, 2018

   On May 9, 2018, the CCAA Court approved a mediation to be held June 13-14, 2018 among the major stakeholders to discuss various issues, including the allocation of recoveries in the CCAA proceedings. The mediation did not result in a mediated solution among the creditors. Following the mediation, various parties have considered alternative approaches. We will be seeking to bring a motion for a declaration that the PBA deemed trust is applicable in favour of the pension plan beneficiaries in the amount owing by Sears Canada to the pension plan and that a distribution in respect of the wind up deficit claim should be made forthwith.

  Liquidation Sales

   Sears Canada is continuing to wind-down their operations in an orderly manner and complete the liquidation of their remaining assets, including certain owned real estate assets. The inventory liquidation processes for Sears Canada have been completed. In addition, the sales of all of the residual assets have substantially been completed.

   Pension Reductions

  In June 2018, letters were sent by Morneau Shepell, the Pension Plan Administrator, to all retirees and beneficiaries who are receiving a monthly pension notifying them of any applicable future pension reductions. Cutbacks to pensions will occur commencing with the August 1, 2018 pension payment. Morneau Shepell has reviewed the current funded status of the Sears Canada Plan and has determined, as an interim measure, to reduce monthly pension benefits to 70% during the wind-up process. At the end of the wind up process, any net over or underpayment paid to pensioners will be taken into account when determining the amount of pension they will receive on final settlement of plan benefits by annuity purchase.

  For members who are former Sears Canada employees with employment service in Ontario, the Pension Benefits Guarantee Fund will apply to the first $1,500 of the members’ monthly pension. This means that the first $1,500 of any eligible monthly pension paid in respect of Ontario employment will be fully paid and any excess over $1,500 per month will be paid at the 70% during the wind up process.

  We will continue to post new developments as they occur.

• March 29, 2018

  Archived versions of the webinars held on March 28, 2018 are available at the following links:

  English: http://bell.media-server.com/m/p/gcfxzwhi

  French: http://bell.media-server.com/m/p/rwsdgqzq

  To view a copy of the English PowerPoint presentation used for the webinar please click here.

  To view a copy of the French PowerPoint presentation used for the webinar please click here.

• March 19, 2018

  Pension Tax Information for 2017

  If you received pension related income in 2017 from the Sears Canada Inc. Registered Retirement Plan, Sears Canada is required to provide you with a T4A tax form identifying these distributions and any related withholdings.  We have received confirmation from Sears Canada that physical copies of the T4A forms were mailed to individuals on February 27, 2018.  If you received a lump sum distribution, you may also receive a duplicate form.  This was the result of a technical issue at Sears Canada, however we have been assured that the Canada Revenue Agency has received the correct information.  If you believe that you received pension distributions in 2017, but you have not received a T4A related to these distributions, please contact our office at searsrepcounsel@kmlaw.ca or 1.800.244.7120, as this may be due to an incorrect address on file with Sears Canada.

  In addition, recipients of MSP Premiums in British Columbia and members of the group life insurance plan received incomplete forms through mysears.ca.  This information has been corrected, and updated forms were mailed to recipients during the week of March 5, 2017.  Please note that the T4A form is separate from the T4 form that you receive for employment income.  The T4 form was only provided through mysears.ca, unless a special request was made to Sears Canada for a physical copy.  If you are having issues related to your T4 form, please contact Ursel Phillips at SearsCanadaEmployees@upfhlaw.ca or 1.844.855.8352.

• March 7, 2018

  Upcoming Webinar on March 28, 2018

  In order to assist in understanding the Employee and Retirees Claims Process, and what steps – if any – need to be taken by individual claimants, Pension Representative Counsel will be hosting a webinar (in English and in French) on March 28, 2018 at 10 a.m. (EST) in English and at 2 p.m. (EST) in French.

  The webinar on March 28, 2018 can be accessed in two different ways:

  1. Live Web Presentation: If you have a computer with internet access, you can access the webinar on March 28, 2018 through the links below. If you are accessing the webinar online, you do not need to register beforehand, but please ensure you do not have any issues accessing the links below at least a few days before the live webinar.

  English: Wednesday, March 28, 2018 at 10:00 a.m. (EST)

  http://bell.media-server.com/m/p/gcfxzwhi

  French: Wednesday, March 28, 2018 at 2:00 p.m. (EST)

  http://bell.media-server.com/m/p/rwsdgqzq

  2. Telephone attendance: If you do not have access to a computer with internet, there will be a dial-in audio-only option for the listed webinars. You can sign up for this service by leaving a voice message on the Koskie Minsky hotline at 1-800-244-7120. Please leave a message leaving your name, telephone number and the date and time of the webinar that you wish to join. A Koskie Minsky representative will call you to confirm your participation. Please register by noon on Monday, March 26, 2018 to ensure a representative can call you back in time with the information.

  If you are unable to attend, archived versions of the webinars will be posted 48 hours after the live webinar and will be available for a year after the presentation.

• March 2, 2018

  In February, 2018, we as Representative Counsel to all retirees and former employees of Sears Canada brought forward a motion to appoint a Litigation Investigator to investigate claims and potential litigation for the benefit of all creditors of Sears Canada.

  As reported in the public domain, the financial circumstances of the demise of Sears Canada are egregious:

  1. From 2005 to 2013, almost $3 billion in dividends were paid by Sears Canada to shareholders;
  2. The Sears Canada Pension Plan is underfunded by $270 million;
  3. In June, 2017, Sears Canada obtained CCAA protection and proceeded to liquidate and shut down its business; and,
  4. Unsecured creditors are facing a recovery of $0.00 to $0.10 cents on the dollar of their claims (Monitor’s 13th Report, para. 23).

  The Monitor in its 11^th report announced that it is investigating certain potential reviewable transactions involving Sears Canada, including certain of the dividend payments, as well as the sale of the Craftsman trademark. The Monitor reported that “further review of [these] Transactions is appropriate” (para. 53).

  Our motion to appoint a Litigation Investigator proceeded today before the court. Lawyers for Sears Holdings, Edward Lampert and ESL Investments attended in court and objected to various aspects of the motion.

  We are pleased to report that Mr. Justice Hainey granted our motion and issued an order today appointing the law firm of Lax O’Sullivan Lisus Gottlieb LLP as the Litigation Investigator. The mandate of the Litigation Investigator is to investigate, review, and report on all potential claims that Sears Canada and/or its creditors may have against any third parties, including current and former directors, shareholders, and advisors of Sears Canada. A copy of the court order can be viewed here: Litigation Investigator Order.

  As part of the court’s order, the formation of a Creditors’ Committee comprised of members of various major creditors groups, including Pension Representative Counsel, landlords, class action plaintiffs, FSCO and Morneau as pension plan administrator, was also approved to consult with the Litigation Investigator.

  The terms of the Litigation Investigator Order contemplate that its mandate will proceed in two stages. First, the Litigation Investigator will review all potential claims that would benefit all creditors of Sears Canada and report to the Creditors’ Committee with recommendations regarding a proposed litigation plan. In the second stage, the Litigation Investigator would return to Court to seek authorization to pursue litigation for the benefit of all creditors of Sears Canada.

  We believe that the appointment of the Litigation Investigator is an important positive step to identify and examine all potential claims against various parties in a coordinated, organized, and cost-effective manner for the benefit of all creditors of Sears Canada. We will report further on the Litigation Investigator in future postings.

• February 27, 2018

  On Thursday, February 22, 2018, the CCAA Court approved the Employee and Retiree Claims Process through which the claims of all employees and retirees of Sears Canada will be valued. For the last three months, Pension Representative Counsel and the Pension Representatives have worked closely with the Monitor and negotiated extensively with the Sears Canada Entities to develop the Employee and Retiree Claims Process.

  In accordance with the Employee and Retiree Claims Process, the Monitor will be mailing a Retiree Claims Package to all retirees with pension and/or retiree benefit entitlements by March 5, 2018.

  There are a number of claims that will be quantified and filed in connection with the Retiree and Pensioner Claims Process, including:

  1. Sears Pension Claim –  Pension Representative Counsel will be advancing and filing a first priority claim for the amounts owing by the employer to the defined benefit component of the Sears Canada Plan based on statutory deemed trust priority provisions in the Ontario Pension Benefits Act and the Ontario Personal Property Security Act. You do not need to take any action to advance any claim you may have in respect of any defined benefit entitlements under the Sears Canada Plan.
  2. Retiree Benefit Claim (Health, Dental, and Life Insurance) – As you are aware, on October 1, 2017, the Sears Canada Entities terminated the payment of health, dental and life insurance benefits (including MSP premiums for B.C. residents) to eligible retirees or their surviving spouses. The termination of those amounts generate claims that reflect the loss of the future payment of these benefits to each eligible individual. We, in consultation with the Pension Representatives and our actuary (Segal Company) have had discussions with Sears Canada and the Monitor with respect to the calculation of these claims. The formula for calculating these claims has been approved by the CCAA Court. All eligible retirees will receive a Retiree Benefit Claims Statement, which will include the full amount of their individual Retiree Benefit Claim along with their personal information that was used to calculate the claim. You will be provided with an opportunity to review your Retiree Benefits Statement and to make any corrections to the personal information data that was used to value your claim. If your personal information data is correct, you do not need to take any further action. Please note that the deadline to make any corrections to your personal data and complete the Retiree Request for Correction Form is 5:00pm Eastern Standard Time on May 7, 2018.
  3. Retiree Discount Claim – Individuals who were previously eligible for a lifetime discount will have a claim in the amount of $840 submitted by the Sears Canada Entities on your behalf. You do not need to take any action to file your retiree discount claim.
  4. Supplemental Pension Plan Claim – We, in consultation with the Pension Representatives and our actuary (Segal Company) will be calculating and filing a claim on behalf of all retirees with entitlements under the Sears Canada Inc. Supplemental Retirement Plan. We will be providing more information under separate cover to all eligible retirees regarding the amount of their supplemental pension claim in the coming weeks.

  If you feel that you have a claim that is not covered in the Retiree Letter and/or Retiree Package that you will receive, you will also be provided with an opportunity to file a proof of claim. The deadline to file a proof of claim is 5:00pm Eastern Standard Time on April 9, 2018.

  Documents relating to the Employee and Retiree Claims Process can be accessed here:

  1. Employee and Retiree Claims Procedure Order
  2. Notice to Claimants
  3. Retiree Claims Package
  4. Letter from Koskie Minsky

  It is important to bear in mind that the claims process will generate a claim on your behalf, but the distribution of the estate of the Sears Canada Entities is many months away. The determination of claims in this process will not result in the payment to retirees of 100% of the value of proven claims.

  Please check the KM website frequently in order to keep informed about progress and important dates.

• January 8, 2018

  We are currently in discussions with the company, Monitor and other applicable stakeholders regarding the terms of the Pensioner Claims Process, which will be brought before the court for approval in the near future. As part of the Pensioner Claims Process, a claim will be calculated and advanced for the amounts owing to the Sears Canada Plan by the employer, including unpaid special payments and the wind up deficit. As we previously advised, we have asserted a first priority claim against the assets of Sears Canada on behalf of the Sears Canada Plan members based on statutory deemed trust priority provisions in the Ontario Pension Benefits Act and the Ontario Personal Property Security Act which we expect to advance further in the Pensioner Claims Process. We will provide further updates on the Pensioner Claims Process as more information becomes available.

• December 19, 2017

  The CCAA Court recently approved a general claims process established by Sears Canada to identify certain creditor claims against the company and former directors and officers of the company (the “Claims Procedure Order”). Pursuant to the Claims Procedure Order, a letter will be mailed shortly to all non-unionized employees and retirees of Sears Canada providing more information on the general claims process. The general claims process does not include pension and other post-employment benefit claims. A separate Pensioner Claims Process is being developed and more information will be provided once that process has been finalized.  To view our letter dated December 13, 2017, please click here.

  Please note that a copy of this letter is available on the Monitor’s website as well as the Sears Canada employee portal (mysears.ca).

   

• December 6, 2017

  NoID issued by FSCO to Wind Up the Sears Pension Plan

  On November 10, 2017, the Financial Services Commission of Ontario (“FSCO”) issued a Notice of Intended Decision (“NoID”) to wind up the Sears Canada Plan, effective October 1, 2017.  It can be viewed here. Absent any objections to the NoID, we expect that the Superintendent will proceed to issue the formal order for the pension plan wind up.  Once the order is made, we expect to withdraw our Wind Up Motion, which can be viewed here.

• November 9, 2017

  Reminder: Deadline Approaching for Other Retiree Health and Dental Coverage Options

  Further to our letter dated September 11, 2017, which can be viewed here, we are reminding all eligible Sears retirees that they have until the end of November 2017 to apply for coverage for health and dental benefits through Manulife and Sun Life, without providing medical evidence of good health.

  If you are interested in the health benefit products with Manulife or Sun Life, please contact the insurance companies directly at the following coordinates:

  Sun Life: 1-877-893-9893

  Manulife: 1-844-313-1234

  In addition, we have recently been informed by Sun Life that there are special circumstances regarding life insurance coverage for eligible Sears retirees who are over 100 years of age.  If this applies to you, please contact us for more information at searsrepcounsel@kmlaw.ca or 1-800-244-7120.

• October 30, 2017

  Liquidation of Sears Canada is now proceeding

  We previously reported that Sears Canada sought court approval to conduct a full liquidation. Liquidation sales have begun and the company is preparing for its wind down. As the pension plan members are a significant creditor group in the CCAA proceedings, we are closely monitoring the liquidation process to ensure that the value of the estate is maximized.

  Pension Priority Claim

  Given the underfunding in the Sears Canada Pension Plan, we as Representative Counsel to the retirees have asserted that the amount that the company owes to the Sears Pension Plan, including unpaid special payments and the wind up deficit, is subject to a statutory deemed trust priority in favour of all plan members under the Ontario Pension Benefits Act and the Ontario Personal Property Security Act.  We have sent a letter to the Monitor and all parties in the CCAA proceedings asserting a first priority claim against the company’s estate on behalf of the pension plan members, which shall be paid ahead of all other creditors (subject only to the CCAA-court ordered charges). To view a copy of our letter, please click here.

  Appointment of Replacement Pension Plan Administrator

  On October 17, 2017, the Ontario Superintendent of Financial Services appointed the actuarial firm of Morneau Shepell to take over the administration of the Sears Canada Pension Plan. Member inquiries related to individual pension entitlements can be directed to Morneau Shepell at 1-888-841-8956 or by email at searspension@morneaushepell.com.

  Given the appointment of a replacement pension plan administrator and the fact that the liquidation of the company is proceeding without a going concern solution, we will be discussing the future of the Sears Canada Pension Plan with the Superintendent and Morneau to achieve the best outcome for the pension plan members. We will continue to provide updates as information becomes available.

• October 12, 2017

  The Liquidation Agreement

  On Friday, October 13, 2017, the Company will be bringing a motion before the CCAA Court for approval of an agreement it has entered into with a liquidation company to commence the process for the liquidation of all remaining Sears Canada store locations. The Company and the Monitor received three sets of proposals from potential liquidators and selected Gordon Brothers Canada ULC and Merchant Retail Solution ULC as the successful liquidation bidder. If the Liquidation Agreement is approved by the court on October 13, 2017, liquidation sales are expected to begin on October 19, 2017 and are to conclude by January 21, 2018. These dates may change upon agreement by the Company and the Liquidators, with approval of the Monitor and the DIP Lenders and other stakeholders. We were consulted in the negotiation of those agreements and contributed to discussions to improve the terms of the agreement to generate higher recoveries for Sears Canada in the liquidations sales.

  The Going-Concern Bid

  As part of the Sales Process conducted by Sears Canada while it is under CCAA protection, a going concern bid was put forward by a group led by Brandon Stranzl (the “Stranzl Group”) who is Sears Canada’s executive chairman, for the continuation of approximately 70 Sears Canada stores. Over the past week, our firm and the Court-appointed retiree Representatives, as well Employee Representative Counsel, became actively and directly involved in discussions and negotiations with the company, Stranzl Group, the Ontario government and the Monitor in order to assist in reaching an agreement that would result in a going-concern agreement. Unfortunately, to date, an agreement between Sears Canada and the Stranzl Group has not yet been achieved.

  In the event a Going Concern can be achieved, the Liquidation Agreement provides the Company with the option of terminating the liquidation process at any time prior to 5:00pm EST on October 18, 2017 for the purpose of pursuing a going concern transaction. The Company’s Motion Record is available here.

  Commuted Value Withdrawals

  At this time, monthly pension benefits are continuing to be paid without reduction. Since the plan is only about 81 per cent funded on a wind-up basis as at December 31, 2015, there may be future reductions to your monthly pensions. However, this will depend on a number of factors, including the outcome of the insolvency proceedings. We anticipate that the Financial Services Commission of Ontario (FSCO) will appoint an administrator (an actuarial firm) to wind up the Pension Plan. As a reminder, those employees who wish to withdraw the commuted value of their pension benefit from the Plan will have the value reduced to reflect the 81 per cent transfer ratio.

  We will continue to provide updates as information becomes available.

   

• September 14, 2017

  A letter has been mailed to all non-unionized retirees with life insurance coverage and/or health and dental benefits with Sears Canada. The letter and the enclosures can be viewed here.

• September 12, 2017

  Important note: Contrary to recent reports by certain media outlets, the Sears Canada Registered Retirement Pension Plan is not being wound up at this time and monthly pension benefits are continuing to be paid without reduction.

• September 5, 2017

  We are preparing a mailing on post-retirement benefits with details on the procedures to follow as well as discussing various options for other insurance you may wish to purchase on your own going forward.

  As a reminder, health and dental coverage provided by Sears Canada will be suspended at 11:59pm on Saturday September 30, 2017. Please ensure that you submit all health and dental reimbursement claims that you incurred up to and including Saturday September 30, 2017 to Sun Life Financial by no later than Sunday October 1 , 2017.

  Claims can be submitted by the following methods:

  1. Obtain the applicable claim form from www.sunlife.ca and mail your completed form to the claims office nearest you:
  Sun Life Assurance Company of Canada
  PO Box 11658 Stn CV
  Montreal QC H3C 6C1

  or

  Sun Life Assurance Company of Canada
  PO Box 2010 Stn Waterloo
  Waterloo ON N2J 0A6

  2. Members can submit vision, paramedical, dental, and drug claims electronically through mysunlife.ca or the mobile app if they have an online account with Sun Life. For more information on how to register online, please click here.

  Sears has agreed that claims to Sun Life that are post-marked on or before October 1, 2017 will be considered as received by October 1, 2017 and will be processed. Claims received on or after October 2, 2017 will not be accepted for processing by Sun Life.

• August 15, 2017

  On August 14, 2017, we filed a motion for an order directing Sears Canada Inc. to wind up the Sears Canada Registered Retirement Plan and to continue payment of monthly pension benefits, without interruption, during the wind up process.

  While under CCAA protection, Sears Canada is running a sales process to sell itself, in whole or in parts, to potential purchasers. The company is also closing over 50 stores, conducting a liquidation sales process for those stores, and does not appear to be restructuring. In these circumstances, we do not believe that any purchaser will agree to take over the liabilities of the Sears Canada Pension Plan and that the wind up of the pension plan is inevitable. The wind up will need to be done either by the company or the provincial pension regulator, the Superintendent of Financial Services of Ontario (the “Superintendent”). As reported by the company the Sears Canada Pension plan is underfunded by $266.8 million on its wind up.

  Under the Ontario Pension Benefits Act (“PBA“), there is a remedy for the members of an underfunded pension plan called the deemed trust in favour of the pension plan beneficiaries for the amount owing and not paid by the employer to a pension plan on its wind up. The PBA deemed trust, and the priority given to the deemed trust in the Ontario Personal Property Security Act (“PPSA”), is an vital remedy to help avoid pension benefit losses for members of an underfunded pension plan. The PBA/PPSA deemed trust was held by the Supreme Court of Canada in the 2013 Indalex decision to apply in CCAA proceedings (subject only to the doctrine of paramountcy). The PBA/PPSA wind up deemed trust operates as a priority in favour of pension plan beneficiaries over other creditors, including secured creditors, over certain assets of the company.

  In the circumstances of the Sears Canada CCAA proceedings, we are concerned with the delays by the company and the Superintendent to wind up the Sears Canada Pension plan, which delays can put the PBA/PPSA wind up deemed trust priority for the pension plan members at risk.  The main objective of our motion is to secure the deemed trust priority in favour of the pension plan beneficiaries as soon as possible. To view our motion materials, please click here.

• August 14, 2017

  It has come to our attention that a mailing from Sears Canada Inc., dated June 28, 2017, contained an incorrect local Toronto phone number for contacting the company regarding pension or benefits.  The correct number is 416-572-7300.

• July 25, 2017

  Update on Pension Election Forms

  We have been notified by a few individuals that they have now received their termination statements (or pension election forms) after experiencing some delays from Sears Canada. If you have not yet received these documents, please contact the Sears Canada HR Service Centre at HRSC@sears.ca or 1-888-444-9444 (locally in Toronto 416-572-7300).

  In light of the CCAA filing, Sears Canada as plan administrator has determined that those members who elect commuted value (CV) payments after June 12, 2017 will not receive the full value of their defined benefit pension entitlements at this time. This is as a result of the underfunding in the Sears pension plan. Members whose pension election forms are received by Sears after June 12, 2017 will only receive 81 % of their commuted value. The remaining 19% is payable over five years, but we cannot yet say when or if the additional 19% will be paid. Whether or not you will receive the balance of your CV payments will be determined based on a number of factors, including the outcome of the insolvency proceedings, whether the Pension Plan is wound up, and what additional amounts, if any, will be paid on its wind up. At this time, we do not have information on how this will proceed. The initial transfer at 81% of the commuted value is based on the Transfer Ratio as shown in the actuarial valuation report prepared as at December 31, 2015.

  Please contact us if you have any questions specific to your individual circumstances.

  We will continue to provide updates as information becomes available.

• July 24, 2017

  A letter will be mailed on Wednesday, July 26, 2017 to all non-unionized retirees, and active and former employees affected by the appointment of Koskie Minsky LLP as Representative Counsel. To view a copy of the Letter (in English and in French), please click here.

• July 13, 2017

  On July 13, 2017, the Ontario Superior Court of Justice (Commercial List) (the “CCAA Court”) approved the terms of a settlement reached between Representative Counsel (on behalf of those retirees, employees and former employees represented), the Ontario Pension Benefits Guarantee Fund (“PBGF”), and Sears Canada in respect of Sears’ motion seeking to immediately suspend the following:

  • Post-retirement benefits including life insurance, medical and dental benefits.
  • Special payments owing under the registered pension plan (the “Sears Pension Plan”);
  • Supplemental pension payments;

  To view a copy of the Term Sheet (being Appendix “A” of the Monitor’s Supplement to the First Report), please click here.

  The settlement provides, among other things, the following:

  1. Continuation of life insurance, medical and dental benefits, up to and including September 30, 2017, subject to further order of the Court;
  2. Continuation of special payment contributions by Sears Canada to the Sears Pension Plan and Supplemental pension payments, up to and including September 30, 2017, subject to further order of the Court;
  3. Subject to certain confidentiality restrictions, the PBGF and Representative Counsel will also be provided with access to certain financial and other information, as set out in greater detail in the Term Sheet.
  4. The settlement also preserves the ability for Pension Representative Counsel to bring a motion before the CCAA Court to seek a wind-up of the Sears Pension Plan and to claim priority as a result of a pension deemed trust and/or administrator’s lien and charge in accordance with the Pension Benefits Act.
  5. In exchange for the above, Representative Counsel and PBGF agreed not to oppose the orders sought by Sears Canada on July 13, 2017 approving the (i) the debtor-in-possession financing and related charges; (ii) the terms of the proposed amended and restated Initial Order and (iii) the Sale and Investment Solicitation Process (“SISP”).

   

• July 11, 2017

  On July 6, 2017, Sears Canada Inc. filed a motion seeking to suspend the following:

  • Special payments owing under the registered pension plan;
  • Supplemental pension payments;
  • Post-retirement benefits including life insurance, medical and dental benefits.

  Based on the material, Sears is seeking to suspend medical and dental benefits as of July 31, 2017 and life insurance will be suspended as of August 31, 2017.

  Representative Counsel is working on a response and will provide information as it becomes available. To view a copy of the motion material please click here.

  The motion will be heard on Thursday July 13, 2017 at 10 am at the Ontario Superior Court of Justice located at 330 University Avenue, Toronto, Ontario in court room 8-1.

• June 23, 2017

  At this time, the company has not made any change to retiree pension or health benefits. However, we are in discussions with the company about its intentions while it is under CCAA protection. We are particularly concerned with the company’s plans for the Sears pension plan and other retiree benefits. We anticipate motions will be brought by Sears for approval to suspend making special payments to the pension plan and to suspend health benefits. The company’s intentions with respect to these matters is set out in the company’s CCAA materials which were filed with the court. We understand that it intends to bring these issues before the court by July 13, 2017.  We are having discussions with the company about their proposed motions and will report to you further.

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Email: searsrepcounsel@kmlaw.ca