It may be appropriate to recover unpaid pension contributions by way of civil proceedings, Magistrate Valdis Foldats suggested on Friday.
He was speaking with Crown counsel Greg Walcolm and attorney Graham Hampson, who represented employer Champion House.
The company has been before the Summary Court since 2008 on charges of failing to pay pension contributions on behalf of employees.
Guilty pleas were entered in 2010, but it was not clear whether those pleas were entered on behalf of the company or by the directors personally. Pleas were entered on behalf of the company in August 2017. When the matter was before the court on Sept. 21, it was stated that the company now owed more than $177,000 in pension payments on behalf of 32 employees from 1999 to 2008. With interest payments added on to that principal amount, the company owed more than $249,000, even before the court would impose any fine.
The magistrate asked whether any company assets could be sold to repay employees. Both counsel agreed that an assessment should be undertaken.
On Sept. 28, Mr. Walcolm advised that he had spoken to officers at the Financial Crime Unit. He said he told them that what was needed was an appraisal of property owned and its value and that the defendant would cooperate.
“They are willing to do the assessment …. It will take a couple of weeks,” he said.
The magistrate said such a delay was minor and not a danger to the public. The main concern was how much money could be obtained from the company to pay back to the employees, he said.
He noted that there were several other cases before the courts concerning employers who had failed to make pension contributions. In some of them, “substantial sums are owing,” he pointed out.
The magistrate said he had gone through the National Pensions Law again and it seemed to him that certain sections contemplated a civil approach. “I may be totally wrong. I don’t know,” he added. He hoped the National Pensions Board and administrators of pension funds would assist by offering their opinions.
He suggested that the charge of failing to make pension contributions could be laid in the time limit set by law and then “held in abeyance” until the true financial state of the employer was obtained through civil proceedings.
He said Section 49 of the law was very powerful, referring as it does to the employer holding employees’ pension contributions “in trust” until the money was paid into a pension fund.
He also pointed to Section 91. It states that, where a provision of the law is contravened, “the contravention may be restrained by action at the instance of the Board, of the Superintendent or of the administrator of the pension plan affected.”
In the case before him, he thanked a company director for agreeing to cooperate in the investigation. He set the matter for mention again on Monday, Oct. 15, to see what progress had been made.
Mr. Hampson advised that there may have been some payments made by his client that were not reflected in the schedule of payments before the court, so the sum actually due may have been ameliorated.