Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Teachers'
Pensions Act, 2018.
Definitions
2. In
this Act
(a) "board" means the board of directors
of the corporation;
(b) "commuted value" means, unless the
context indicates otherwise, the present value of a pension benefit calculated
in accordance with the pension plan;
(c) "corporation" means the Teachers'
Pension Plan Corporation continued under section 15;
(d) "deferred life annuity" means a sum
of money payable yearly or at another regular interval that
(i) commences no earlier than the date the person
would have been eligible to retire under the pension plan, and
(ii) continues for the life of the person;
(e) "deferred pension" means a pension
benefit the payment of which is deferred until the person entitled to the
pension benefit is eligible to retire under the pension plan;
(f) "deferred pensioner" means a person
who has elected or is considered to have elected to receive a deferred pension;
(g) "employer" means
(i) the government,
(ii) the Newfoundland
and Labrador Teachers' Association,
(iii) the Churchill Falls (Labrador)
Corporation Limited, and
(iv) any other entity admitted to the pension plan
by the corporation in accordance with the joint sponsorship agreement;
(h) "former Act" means the Teachers' Pensions Act;
(i) "fund" means the Teachers' Pension
Plan Fund continued under section 5;
(j) "funding policy" means the funding
policy attached as Appendix A to the joint sponsorship agreement;
(k) "government" means the government of
the province;
(l) "joint sponsorship agreement" means
the agreement relating to the joint sponsorship of the pension plan between
government on the one part and the Newfoundland and Labrador Teachers'
Association on the other part, dated March 15, 2016 as amended from time to
time and includes the appendices to the agreement;
(m) "life income fund" and
"locked-in retirement income fund" means a registered retirement
income fund
(i) established in accordance with the Income Tax Act (Canada),
(ii) included in the list established and
maintained under section 18 of the Pension
Benefits Act Regulations, and
(iii) under which payments commence no earlier than
the date the person would have been eligible to retire under the pension plan;
(n) "locked-in retirement account" means
a registered retirement savings plan
(i) established in accordance with the Income Tax Act (Canada),
(ii) included in the list established and
maintained under section 18 of the Pension
Benefits Act Regulations, and
(iii) that requires the monies in the registered
retirement savings plan to be transferred to a life income fund, locked-in
retirement income fund or a deferred life annuity before payments may commence;
(o) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(p) "pension benefit" means an amount
under the pension plan to which a teacher or other person is, or may, become
entitled;
(q) "pension plan" means, unless the
context indicates otherwise, the Teachers' Pension Plan referred to in section
4;
(r) "pensioner" means a person in
receipt of a pension benefit;
(s) "registered" means registered under
the Income Tax Act (Canada);
(t) "sponsor body" means the body
appointed in accordance with the joint sponsorship agreement;
(u) "supplementary account" means the
Teachers' Supplementary Account continued under section 8;
(v) "supplementary pension benefit" means
the supplementary pension benefit referred to in subsection 8(3);
(w) "teacher" includes the following
persons appointed or employed by an employer:
(i) a person who holds a valid and subsisting
certificate, grade or licence not lower than the emergency supply licence
issued under the Teacher Training Act
and who is, subject to the Schools Act,
1997, appointed or employed by an employer
to give instruction or to administer or supervise instructional services in a
college or a school,
(ii) a director, an associate director or an
assistant director, as defined in the Schools
Act, 1997 except the assistant director of finance and administration
appointed under section 79 of the Schools
Act, 1997,
(iii) an administrative officer of the Newfoundland
and Labrador Teachers Association by virtue of the Teachers' Association Act, and who was before his or her
appointment
(A) a teacher to whom this Act or the former Act
applied, or
(B) a public servant to whom the Public Service Pensions Act, 1991
applied,
(iv) a full time salaried president of the
Newfoundland and Labrador Teachers' Association or the Canadian Teachers'
Federation and who was before his or her appointment
(A) a teacher to whom this Act or the former Act
applied, or
(B) a public servant to whom the Public Service Pensions Act, 1991
applied, or
(v) a person who is considered a teacher under the
pension plan; and
(x) "year's maximum pensionable
earnings" has the same meaning as in the Canada Pension Plan Act (Canada).
Participation in
pension plan
3. (1)
A teacher shall contribute to and participate in the pension plan.
(2) In addition to the contributions under
subsection (1), a teacher whose pensionable earnings in a calendar year exceed
the pensionable earnings that would require contributions up to the limit
approved under the Income Tax Act (Canada)
shall make contributions, at the contribution rate set out in the pension plan,
in respect of the excess pensionable earnings.
(3) The contributions required under subsections
(1) and (2) shall be deducted from the teacher's salary.
Pension plan
4. (1)
The pension plan provided for, by and under the former Act is continued in
accordance with this Act and the documentation prepared and maintained in
accordance with the joint sponsorship agreement prescribing the terms
applicable to the pension plan.
(2) The supplementary pension benefit is not
included in the pension plan.
Fund continued
5. (1) The
Teachers' Pension Plan Fund established under the former Act is continued.
(2) The fund shall be held in trust by the
corporation.
(3) There shall be deposited into the fund
(a) contributions made by teachers and employers
under this Act;
(b) the income of the fund; and
(c) any other income arising from the operation of
the pension plan.
(4) Where an employer does not make a contribution
or deposit to the fund in the manner required by this Act, a penalty may be
assessed and levied upon the amount of that contribution or deposit in a manner
directed by the corporation.
(5) There shall be paid out of the fund
(a) pension benefits, refunds and payments under
the pension plan;
(b) the operating costs of the fund; and
(c) other expenditures arising from the operation
of the pension plan.
(6) The assets of the fund may be pooled with the
assets of other pension plans, including government pension plans, for
investment purposes as directed by the corporation.
Deductions paid
to fund
6. (1)
An employer shall pay into the fund all contributions required under the
pension plan and the joint sponsorship agreement.
(2) In addition to the contributions under
subsection (1), where a teacher's pensionable earnings in a calendar year
exceeds the pensionable earnings that would require contributions up to the
limit approved under the Income Tax Act (Canada),
the employer shall pay into the fund contributions in respect of the teacher's
excess pensionable earnings at the contribution rate set out in the pension
plan.
(3) The government shall pay the contributions
referred to in subsections (1) and (2) out of the Consolidated Revenue Fund.
Government
payments
7. (1) The
promissory note delivered by the government to the corporation under the former
Act continues to be fully enforceable.
(2) The promissory note shall amortize $1,862,000,000,
valued at September 1, 2015, over 30 years in equal annual payments of
$135,272,273 beginning on August 31, 2016.
(3) Payments made under subsection (2) shall be
made regardless of the funded status of the pension plan in the future.
(4) The present value of the residual payments
described in subsection (2), discounted at 6%, shall be considered to be an
asset of the pension plan.
(5) The asset referred to in subsection (4) is a
non-investment asset which is non-marketable and non-transferrable except as
otherwise provided in this Act and which shall be used solely for the purpose
of determining the funded ratio of the pension plan.
Supplementary
account and supplementary pension benefits
8. (1) The
Teachers' Supplementary Account established in the Consolidated Revenue Fund
under the former Act is continued.
(2) The minister shall be responsible for the
supplementary account and supplementary pension benefits.
(3) Where the calculation of a teacher's pension
benefit without application of the limits under the Income Tax Act (Canada)
results in an amount greater than the amount of the teacher's actual pension
benefit, the teacher shall be entitled to a supplementary pension benefit equal
to the difference between the 2 amounts and on the same terms and conditions
applicable to the pension benefit.
(4) Notwithstanding subsection (3), a teacher
employed by an entity referred to in subparagraph 2(g)(iv) shall not be
entitled to a supplementary pension benefit without the approval of the
minister.
(5) Where a person is eligible to transfer his or
her commuted value under the pension plan, the person is eligible to receive
payment of the commuted value of his or her supplementary pension benefit.
(6) A supplementary pension benefit shall be paid
from the supplementary account.
(7) The contributions made under subsections 3(2)
and 6(2) shall be paid by the corporation to the supplementary account no later
than the last day of February of the subsequent year.
(8) Where there is insufficient money in the
supplementary account to pay supplementary pension benefits, money shall be
paid from the Consolidated Revenue Fund to the supplementary account to make
the payments.
Transfer of
commuted value
9. (1)
Where a person is eligible to transfer his or her commuted value under the
pension plan and elects to transfer his or her commuted value, the commuted
value shall be transferred to
(a) a registered pension plan provided the
administrator of the pension plan agrees to accept the transfer;
(b) a life income fund, locked-in retirement income
fund or locked-in retirement account; or
(c) a deferred life annuity purchased from an
insurance company licensed to transact business in Canada.
(2) Subsection (1) does not apply where
(a) the person's annual pension benefit payable is
less than 4% of the year's maximum pensionable earnings for the calendar year
in which employment is terminated;
(b) the commuted value of a person's pension benefit
is less than 10% of the year's maximum pensionable earnings for the calendar
year in which employment is terminated; or
(c) the person provides documentation from a
medical practitioner satisfactory to the corporation that he or she has a
mental or physical disability that is likely to shorten considerably his or her
life expectancy.
(3) For the purpose of a transfer under subsection
(1), a contract to establish a life income fund, locked-in retirement income
fund, locked-in retirement account or a deferred life annuity shall be in the
form of a certified specimen contract filed under section 18 of the Pension Benefits Act Regulations.
(4) Where a person transfers or is paid his or her
commuted value under this section, the corporation and the pension plan shall
be fully discharged of all obligations to the teacher or deferred pensioner in
respect of the period of pensionable service related to the transfer.
Attachment
10. Monies
payable or awarded under the pension plan shall not be assigned, charged,
attached, anticipated or given as security and is exempt from execution,
seizure or attachment and a transaction purporting to assign, charge, attach,
anticipate or give that pension benefit as security is void, except where
(a) this section is overridden by another Act; or
(b) the transaction is a division of a pension
benefit or supplementary pension benefit in accordance with section 13.
Error or
misrepresentation
11. The
corporation may adjust or cancel a pension benefit which has been paid or awarded
as a result of error or misrepresentation and where an overpayment of a pension
benefit has been made the corporation may recover the overpayment.
Rectification
12. Where
a pension benefit has been underpaid or unreasonable delays in payments have
occurred, the corporation may make payments in rectification together with interest
that may be determined by the corporation.
Marriage
breakdown
13. (1)
Where
(a) a court in the province makes an order for the
division of matrimonial property under the Family
Law Act or a similar order is made by a court outside the province; or
(b) a teacher, deferred pensioner or pensioner has
entered into a separation agreement within the meaning of the Family Law Act to divide matrimonial
property,
a pension benefit or supplementary pension
benefit shall be divided in accordance with the court order or separation
agreement and the pension plan.
(2) Where the corporation applies to the court for
direction under the marriage breakdown provisions of the pension plan, the
court may make or vary an order for the division of matrimonial property as it
considers appropriate in the circumstances and any order made against the
corporation shall be paid from the fund.
Appeal
14. (1) A
person may, in accordance with the pension plan, appeal a decision of the
corporation in a matter related to, connected with or arising out of his or her
entitlement to, or payment of, a pension benefit or other money under this Act.
(2) A person may apply for judicial review of a decision
under subsection (1) within 60 days after receipt of the decision by filing an
application with the Supreme Court.
Corporation
continued
15. (1) The
Teachers' Pension Plan Corporation established under the former Act is
continued as a corporation without share capital.
(2) The head office of the corporation shall be at
St. John's.
(3) The corporation is not an agent of the Crown.
(4) The provisions of this section and sections 16
to section 21 constitute the articles of the corporation.
(5) A director or a person employed by the
corporation does not become an officer or employee of the Crown by reason of
that office or employment only.
Application of
Acts to corporation
16. (1) The
Corporations Act , except section 27,
paragraphs 31(a), (d) and (e), sections 32, 167, 172, 190, 191, 198, 199, 200,
201, 204, 277, 278, 378, and subsection 422(1), does not apply to the
corporation.
(2) The Lieutenant-Governor in Council, on the
recommendation of the sponsor body, may make regulations directing that
additional provisions of the Corporations
Act apply to the corporation, provided that those regulations do not
conflict with this Act.
(3) Where there is a conflict between a provision
referred to in subsection (1) and this Act, this Act prevails.
Objects of
corporation
17.
The objects of the corporation are
(a) to act as trustee of the fund;
(b) to act as administrator of the pension plan;
and
(c) to exercise those other powers and perform
those other duties as may be conferred upon the corporation under the joint
sponsorship agreement.
Board
18. (1)
The number of persons on the board shall be determined in accordance with the
joint sponsorship agreement.
(2) A director of the corporation, in exercising
his or her powers and discharging his or her duties, shall
(a) act honestly and in good faith with a view to
the best interests of the pension plan and for the benefit of all teachers,
pensioners and deferred pensioners; and
(b) exercise the care, diligence and skill that a
reasonably prudent person would exercise in comparable circumstances.
(3) The board, by resolution, may make, amend or
repeal by-laws that regulate the business or affairs of the corporation.
(4) By-laws made by the board shall not conflict
with the joint sponsorship agreement.
Corporation and
board bound
19. The
corporation and the board are bound by and shall act in accordance with the
joint sponsorship agreement as provided for in that agreement.
Funded status of
plan
20. Actuarial
surpluses and deficits relating to the pension plan shall be shared in
accordance with the funding policy.
No liability
21. The
corporation is not liable for loss or damage suffered by another person because
of anything done or omitted to be done under or in the exercise or supposed
exercise of the powers conferred by this Act, where those powers have been
exercised in accordance with subsection 18(2).
Indemnification
22. A
director or officer or a former director or officer who acted in good faith in
the execution of his or her duties and powers and his or her heirs, executors,
administrators and other legal representatives shall be indemnified by the fund
for all legal expenses and all other charges and expenses actually and
reasonably incurred by that director, officer, former director or former
officer, including an amount paid to settle an action or to satisfy a judgment
in a civil, criminal or administrative action or proceeding to which the person
is made a party because of being or having been a director or officer.
Binding effect
23. (1) The
sponsor body's decisions, rules, policies and procedures made or established in
accordance with the joint sponsorship agreement, the pension plan or the fund
shall be binding on the corporation, employers, teachers, pensioners and
deferred pensioners and their respective beneficiaries, dependents, estates,
heirs, executors, administrators, successors and assigns.
(2) The corporation's decisions, rules, policies
and procedures shall be binding on the sponsor body, employers, teachers,
pensioners and deferred pensioners and their respective beneficiaries,
dependents, estates, heirs, executors, administrators, successors and assigns.
Conflict
24. Where
this Act conflicts with another Act of the province, this Act shall prevail.
Pension Benefits
Act, 1997
25. The
Pension Benefits Act, 1997 does not
apply to this Act or the pension plan.
Pension plan
protected
26. This
Act shall apply to all pension benefits and supplementary pension benefits accrued
under the former Act.
RSNL1990 cF-8
Amdt.
27. Subparagraph 2(1)(k.1)(ii) of the Financial Administration Act is repealed
and the following substituted:
(ii) the Teachers' Pension Plan Corporation
continued under the Teachers' Pensions
Act, 2018, and
SNL1996 cP-4.01
Amdt.
28. (1) Section 2 of the Pension Benefits Act, 1997 is amended by
adding immediately after paragraph (ee) the following:
(ee.1) "Public Service Pension Plan" has
the same meaning as the term "pension plan" in the Public Service Pensions Act, 1991;
(2) Section 2 of the Act is amended by deleting
the word "and" at the end of paragraph (ii) and adding immediately
after that paragraph the following:
(ii.1) "Teachers' Pension Plan" has the
same meaning as the term "pension plan" in the Teachers' Pensions Act, 2018; and
(3) Section 25 of the Act is amended by adding
immediately after subsection (5) the following:
(5.1) Where a member of a pension plan requests to
transfer the commuted value of his or her pension benefit to the Public Service
Pension Plan or the Teachers' Pension Plan, the administrator of the plan shall
provide a written statement as required by the superintendent.
(4) Paragraph 40(1)(a) of the Act is amended by
adding immediately after subparagraph (i) the following:
(i.1) transfer the commuted value of the member's
pension benefit to the Public Service Pension Plan or the Teachers' Pension
Plan, if the Public Service Pension Plan or the Teachers' Pension Plan permits and
the administrator of the Public Service Pension Plan or the Teachers' Pension
Plan agrees to accept the payment,
(5) Paragraph 40(2)(a) of the Act is amended by
adding immediately after subparagraph (i) the following:
(i.1) transfer the commuted value of the member's
pension benefit to the Public Service Pension Plan or the Teachers' Pension
Plan, if the Public Service Pension Plan or the Teachers' Pension Plan permits and
the administrator of the Public Service Pension Plan or the Teachers' Pension
Plan agrees to accept the payment,
RSNL1990 cP-6
Amdt.
29. Subsection 9(3) of the Pensions Funding Act is repealed and the following substituted:
(3) Subsection (1) does not apply to the plan
continued under the Teachers' Pensions
Act, 2018.
RSNL1990 cP-17
Amdt.
30. The Schedule to the Portability of Pensions Act is amended by deleting the reference
"The Teachers' Pensions Act".
RSNL1990 cT-2
Amdt.
31. Section 8 of the Teachers' Association Act is repealed and the following
substituted:
Administrative
officers
8. A
person who is an administrative officer of the association and who was before
his or her appointment to the post a teacher to whom
(a) the Teachers'
Pensions Act, 2018 applied; or
(b) the definition of "teacher" in the Schools Act, 1997 applies
shall during his or her term of office as
an administrative officer be considered to be a teacher for all of the purposes
of the Teachers' Pensions Act, 2018.
SNL1991 c17 Rep.
32. The Teachers'
Pensions Act is repealed.
Commencement
33. (1)
This Act, or a section, subsection or paragraph of it, except subsections 28(1),
(2), (4) and (5), comes into force on a day or days to be proclaimed by the
Lieutenant-Governor in Council.
(2) Subsections
28(1), (2), (4) and (5) are considered to have come into force on December 16,
2014.
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