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Statutes of Newfoundland 1991


CHAPTER 12

AN ACT TO REVISE AND AMEND THE LAW
RESPECTING A PENSION PLAN FOR
EMPLOYEES OF THE GOVERNMENT OF THE PROVINCE AND OTHERS

(Assented to May 31, 1991)

Analysis

1. Short title

2. Definitions

3. Application

4. Pension plan

5. Employee contributions

6. Deductions paid to fund

7. Repayment of contributions

8. Purchase of prior service

9. Pension rights on becoming an employee

10. Contractual employee

11. Leave of absence without pay

12. Purchase of service

13. Transfer

14. Reciprocity

15. Right to a pension

16. Retirement

17. Minimum service

18. Calculation of pension

19. Pension upon retirement

20. Deferred pension

21. Offer of re-employment before age 65

22. Re-employment after 65 years

23. Survivor benefit

24. Estate provision

25. When pensions payable

26. Payments out of fund

27. Pension not assignable

28. Attachment

29. Error or misrepresentation

30. Rectification

31. Committee

32. Marriage breakdown

33. Regulations generally

34. Regulations re certain employees

35. Appeal

36. Procedure

37. Conflict of Acts

38. Certain employees

39. Existing plan protected

40. Existing regulations

41. Income Tax (Canada)

42. Acts amended

43. RSN 1970 c.319 Rep.

44. Commencement

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 Public Service Pensions Act, 1991.

Definitions

2. In this Act

(a) "Canada Pension Plan" means the Canada Pension Plan, chapter C-8 of the Revised Statutes of Canada, 1985;

(b) "child" means a natural child, a stepchild or an adopted child;

(c) "contractual employee" means a person employed under a contract with the government of the province or an organization included in the pension plan under section 34, except where the contract stipulates that the person is a member of the pension plan;

(d) "employee" means a person

(i) who is employed on a full-time basis by the government of the province and paid a salary out of public funds voted by the Legislature, or

(ii) who is included by the regulations made under section 34,

but does not include a contractual employee or a person who is specifically excluded from participation in the pension plan by or under this Act or the regulations;

(e) "employed on a full-time basis" means employed for the number of working hours required for full-time employment in the departments of the government of the province or those other number of hours that may be prescribed and may include job sharing of full-time employment;

(f) "former Act" means The Public Service (Pensions) Act;

(g) "minister" means the Minister of Finance;

(h) "month" means a calendar month and includes a portion of a calendar month;

(i) "normal retirement age" means the end of the month in which an employee reaches the age of 65 years;

(j) "pension" means an annual pension payable to a former employee in accordance with the pension plan;

(k) "pension fund" means the Province of Newfoundland Pooled pension fund established under The Pensions Funding Act;

(l) "pensionable service" means service credited while in receipt of full salary and calculated in years and months which may be taken into account under the pension plan for the purpose of determining whether an employee has qualified for the award of a pension and the amount of the pension;

(m) "pensioner" means a person in receipt of a pension or survivor benefit under this Act;

(n) "pension plan" means the Public Service Pension Plan referred to in this Act;

(o) "prescribed" means prescribed by the regulations made under this Act;

(p) "salary" means the normal remuneration paid at an annual, monthly, fortnightly, weekly or hourly rate for the normal working period of the employee, or other remuneration that may be prescribed, but does not include payments made on a fee basis;

(q) "seasonal employee" means a full-time employee whose services are of a seasonal but recurring nature;

(r) "spouse" means a person of the opposite sex

(i) to whom the employee is married at the time of that employee's death, or

(ii) who establishes to the satisfaction of the minister that the person has cohabited with the employee for at least 12 consecutive months immediately before that employee's death provided that the person and the employee held themselves out to the public as spouses of each other and there was no legal impediment to marriage between that person and the employee;

(s) "survivor benefit" means a benefit payable to the spouse or child of a deceased employee or pensioner;

(t) "temporary employee" means a full-time employee who is employed for a period not exceeding 3 months; and

(u) "year" means 12 months.

Application

3. (1) This Act applies to every employee.

(2) A person shall not be eligible to make a contribution to or participate in the pension plan, if he or she

(a) is excluded from this Act by the regulations;

(b) is in receipt of a pension; or

(c) is a temporary employee.

Pension plan

4. The Public Service Pension Plan provided for, by and under the former Act is continued, subject to this Act and the regulations, as the pension plan.

Employee contributions

5. (1) All employees to whom the pension plan applies shall make the contributions set out in this section and in or under the other provisions of this Act.

(2) There shall be deducted from the salary of every employee to whom the pension plan applies

(a) 6.6% of that portion of his or her salary which is the basic exemption under the Canada Pension Plan;

(b) 4.8% of that portion of his or her salary in excess of the basic exemption referred to in paragraph (a) up to and including the Year's Maximum Pensionable Earnings as defined by the Canada Pension Plan;

(c) 6.6% of the portion of his or her salary which is in excess of the Year's Maximum Pensionable Earnings as defined by the Canada Pension Plan, and

(d) other additional amounts that may be prescribed.

(3) Notwithstanding subsections (1) and (2), the contributions set out in subsection (2) shall cease to be deducted from the employee's salary upon the employee's completion of 35 years of credited pensionable service.

(4) Where contributions have been deducted in accordance with subsection (2) from the salary of an employee after contributions are no longer required under subsection (3) or where contributions have been deducted from the salary of an employee in excess of the amounts set out in subsection (2), those contributions shall be returned to the employee together with interest at the prescribed rate.

Deductions paid to fund

6. (1) All deductions made under section 5 shall be deposited each month to the credit of the pension fund.

(2) The government of the province shall pay out of the Consolidated Revenue Fund and pay into the pension fund

(a) an amount equal to the contributions of its employees under this Act unless otherwise directed by this Act or the regulations; and

(b) an additional amount that may be prescribed.

(3) The employers of those persons included in the pension plan under an Act of the Legislature or regulations made under section 34 shall pay into the pension fund

(a) an amount equal to the contributions of their employees under this Act unless otherwise directed by this Act or the regulations; and

(b) an additional amount that may be prescribed.

(4) Excess government or employer contributions required to match employee contributions paid in accordance with subsection 5(4) shall be refunded to the government or the employer with interest at the prescribed rate.

Repayment of contributions

7. (1) Subject to the locking-in provisions of The Pension Benefits Act and to subsection (2), if an employee to whom the pension plan applies is not entitled to a pension under the pension plan, the contributions made by that employee together with interest at a rate prescribed, may, upon the employee's election, be paid to the employee or if the employee is not living, to the employee's personal representative when

(a) the employee dies before having completed 5 years of pensionable service;

(b) the employee dies after completing 5 years of pensionable service but does not leave a spouse or child who is entitled to a survivor benefit; or

(c) the employee terminated his or her employment, or the employee's employment was terminated.

(2) Where money is payable to the personal representative of an employee under subsection (1) or another provision of this Act, the minister may, without probate or proof of title, pay or distribute a reasonable amount, whether that amount is the whole or part only of that sum, to or among any one or more of the persons appearing to the minister to be the persons beneficially entitled to the estate of the deceased employee.

(3) In determining the persons to whom or the proportions in which the amount shall be paid or distributed under subsection (2), the minister may take into consideration the expenses incurred by those persons for or on account of the burial expenses of the deceased employee.

(4) A payment made in accordance with subsection (2) shall have the same effect in law as if it was made to the personal representative of the deceased employee.

Purchase of prior service

8. (1) Where a former employee ceased to be employed and received a refund of contributions and later becomes an employee, that employee may be credited with the prior pensionable service that he or she may elect to purchase on paying contributions to be calculated in accordance with the terms and conditions that may be prescribed.

(2) Where a former employee who ceased to be employed and had not received a refund of contributions and later becomes an employee, that employee shall be credited with all pensionable service that accrued immediately before the employee's termination.

(3) Where a former employee ceased to be employed before April 1, 1967 and later becomes an employee, that former employee may be credited with prior pensionable service in accordance with those terms and conditions that may be prescribed.

(4) For the purpose of this section, "prior pensionable service" means

(a) all pensionable service under the pension plan;

(b) all service performed on a full-time basis with the government of the province or those organizations which were members of the pension plan under the former Act, whether or not that service was recognized under the former Act; or

(c) all service performed on a full-time basis with the government of the province before April 1, 1967 whether or not that service was recognized under The Civil Service Act.

Pension rights on becoming an employee

9. (1) Where an employee was formerly covered under a pension plan established under

(a) The Education (Teachers' Pensions) Act;

(b) The Members of the House of Assembly (Retiring Allowances) Act;

(c) The Memorial University (Pensions) Act;

(d) The Uniformed Services (Pensions) Act; or

(e) an Act replaced by an Act referred to in paragraphs (a) to (d)

for which contributions were paid under that pension plan and subsequently refunded, the employee shall be credited with the pensionable service recognized by those pension plans that he or she may elect to purchase upon paying contributions that may be prescribed.

(2) Where an employee was covered under a pension plan listed in subsection (1) and

(a) the contributions were payable and not paid in respect of service under that plan; or

(b) the employee was employed on a full-time basis but was not eligible for membership in the pension plan or was precluded from membership due to administrative error,

the employee may elect to purchase that service under the respective plans by paying the prescribed contribution.

(3) An employee is not eligible to be credited with pensionable service under this section if the employee is eligible to be credited with that pensionable service under this Act or under another Act.

Contractual employee

10. A contractual employee who subsequently becomes an employee may elect to purchase all full-time contractual service based on a cost calculated in a manner that may be prescribed.

Leave of absence without pay

11. (1) An employee who is on authorized leave of absence without pay may have that period credited as pensionable service upon paying the contributions required under section 5.

(2) The contributions made under subsection (1) and the calculation of a pension under section 18 shall be based on the salary that the employee was earning immediately prior to the commencement of his or her authorized leave of absence without pay provided that the employee elects within the lesser of 90 days after returning from that authorized leave or prior to the date of termination from the employer to purchase the relative period of absence.

(3) Should the employee terminate from his or her employer before the expiration of the 90 days and fail to elect to purchase that leave without pay and later become an employee, the person may elect to purchase the leave without pay within the 90 day period as if the person continued to be employed with the previous employer.

(4) All matching contributions required under subsection (2) shall be paid by the current employer from whom the authorized leave of absence was granted.

(5) Notwithstanding subsections (2), (6) and (8), authorized leave of absence without pay may be purchased at any time after the expiration period at a cost that may be prescribed and no matching contributions are required by the government of the province or an employer.

(6) Upon the commencement of this Act, employees with periods of leave without pay who did not purchase that service before the commencement of this Act shall have 120 days from the commencement of this Act to purchase those periods of leaves of absence without pay as pensionable service in accordance with subsections (1) and (2).

(7) The contributions referred to in subsection (6) shall be matched by the current employer.

(8) A temporary employee or seasonal employee who was continuously employed immediately prior to participation in the pension plan may be credited with that pensionable service within 90 days of participation in the pension plan upon paying contributions in accordance with subsections (1), (2) or (5).

Purchase of service

12. (1) All contributions that are required to be paid under sections 8, 9, 10 and 11 may be paid in equal instalments over the shorter of

(a) the period of pensionable service being purchased; or

(b) the period from the date of election to a date immediately preceding the date on which the employee retires

together with the prescribed interest.

(2) An employee whose employment status changes from full-time to part-time may continue to make existing payments towards a purchase of service contract entered into under this Act or the former Act.

Transfer

13. The minister shall accept the transfer of funds from the Government Money Purchase Pension Plan created by The Government Money Purchase Pension Plan Act and establish the amount of related pensionable service in accordance with those terms and conditions that may be prescribed.

Reciprocity

14. (1) A person, who before becoming an employee, was in the employment of the Government of Canada, the government of another province, an agency of the Government of Canada or a province or of a company, corporation, institution or a legal entity authorized to carry on business in Canada, which has a pension plan and the employee was formerly a member of that plan may be credited with pensionable service under this Act, with the whole or part of his or her years of pensionable service credited to him or her under that former plan under an agreement made pursuant to subsection (2) which provides for crediting that pensionable service on a reciprocal basis.

(2) The minister may, with the approval of the Lieutenant-Governor in Council, enter into a reciprocal agreement with a government, company, corporation, institution or legal entity referred to in subsection (1) to give effect to the purposes set out in that subsection and to provide for payments to be made into and out of the pension fund under that agreement.

Right to a pension

15. Every employee shall, subject to this Act, receive a pension as a matter of right.

Retirement

16. (1) Every employee shall be retired under the pension plan

(a) when the employee attains normal retirement age; or

(b) if, after the employee has used up all sick leave entitlement, the employee is unable to perform efficiently the duties of his or her position or those duties of an alternative position owing to incapacity that is medically certified to the satisfaction of the minister as likely to be permanent from a date to be determined by the minister.

(2) Notwithstanding paragraph (1)(b), the minister reserves the right to require an employee to participate in a rehabilitation program which has been recommended by medical advisors, or to take other action which is reasonable in the circumstances, to rehabilitate the employee to the extent possible so as to enable the employee to reasonably perform the duties of his or her position or alternative position.

(3) Where the employee elects not to participate, or through his or her own negligence does not respond properly to an approved rehabilitation program, or knowingly performs an act which aggravates the medical condition to cause permanent disability, or refuses an offer of an alternative position, that employee shall be ineligible for a pension under paragraph (1)(b).

(4) Where an employee who retired under paragraph (1)(b) becomes fit for work and receives an offer of re-employment to his or her former position or an alternative position within 12 months of his or her retirement and refuses the offer, without reasonable cause, the pension paid to that employee may be cancelled by the minister.

(5) For the purpose of this section, an alternative position includes a position for which, in the opinion of the minister, the employee is reasonably suited by virtue of his or her training, experience and education and which has been offered in writing to the employee.

Minimum service

17. (1) An employee shall not receive a pension under the pension plan until the employee has been credited with not less than 5 years of pensionable service.

(2) An employee shall not receive a pension under the pension plan while he or she is an employee.

(3) For the purposes of this section a pension does not include a survivor benefit.

Calculation of pension

18. (1) A pension awarded to an employee or seasonal employee is the product of 2% of the average annual salary of the employee or seasonal employee for the highest 5 years of pensionable service before retirement, multiplied by the number of years and months of credited pensionable service.

(2) A pension awarded under subsection (1) shall not exceed the lesser of 70% of the employee's average annual salary as calculated under subsection (1) or the maximum allowable benefit payable as determined under the Income Tax Act (Canada).

(3) A pension awarded under subsection (1) shall be reduced by the product of 6/10 of 1% of the employee's average annual salary as calculated under subsection (1) multiplied by the number of years and months of pensionable service done after March 31, 1967 not exceeding 35.

(4) For the purposes of subsection (3) an employee's average annual salary may not exceed the average of the employee's Year's Maximum Pensionable Earnings under the Canada Pension Plan in the year the employee has retired and in the 2 years immediately before the employee's year of retirement.

(5) A pension of an employee shall be reduced under subsection (3) at a time which is the earlier of

(a) the 1st of the month following the month in which the employee reaches the age of 65 years; or

(b) the effective date of the payment of benefits to the employee under the Canada Pension Plan

where the effective date of the reduction is before age 65, the amount of the reduction as calculated under subsection (3) shall be reduced by .5% for each month the effective date as established under paragraph (b) is less than the date established under paragraph (a).

(6) For the purposes of determining the average annual salary of a seasonal employee, the total salary received by that employee in the last 60 months before retirement shall be divided by the number of months of service in respect of which the salary was received and multiplied by 12.

Pension upon retirement

19. (1) Upon retirement in accordance with section 16 or subsections (2) and (3) of this section, an employee shall be awarded a pension.

(2) An employee

(a) who has reached early retirement age; or

(b) who has reached advanced retirement age and has done not less than 30 years of pensionable service

may elect to retire and receive a pension calculated and paid in accordance with section 18 and the other provisions of this Act.

(3) Notwithstanding subsection (2), a prescribed employee who has reached the age of 55 years and has not less than 25 years of pensionable service may elect to retire before normal retirement age and shall receive a pension calculated in accordance with this Act from the end of the month in which the employee's election becomes effective.

(4) In this section

(a) "advanced retirement age" means the end of the month in which the employee reaches the age of 55 years; and

(b) "early retirement age" means the end of the month in which the employee reaches the age of 60 years.

Deferred pension

20. (1) An employee who terminated employment or whose employment was terminated for a reason other than disability and who has been credited with not less than 5 years of pensionable service may elect to receive a pension calculated and paid in accordance with section 18 and the other provisions of this Act.

(2) An employee who has made an election under subsection (1) and subsequently becomes an employee is deemed to have revoked his or her election.

(3) Where an employee elects to receive a pension under subsection (1) and there is an increase in the amount of pension, that increase shall apply to that deferred pension as if the employee was a pensioner on the 1st of the month immediately following termination.

(4) Notwithstanding the locking-in provisions under The Pension Benefits Act or contributions held under that Act, an employee may elect to have those contributions transferred to

(a) a pension plan included in the Schedule to The Portability of Pensions Act;

(b) a pension plan of another jurisdiction with which the province has entered into a reciprocal agreement; or

(c) other locked in pension plans or retirement arrangements that may be prescribed, provided that the employee meets the terms and conditions required under these arrangements.

(5) Subject to the locking-in provisions of The Pension Benefits Act, an employee who elects to receive a pension under subsection (1) may negate his or her election and elect a return of his or her contributions together with interest at a prescribed rate.

Offer of re-employment before age 65

21. (1) A pensioner who has retired under the pension plan but has not reached normal retirement age may be re-employed in a pensionable position.

(2) A pensioner who has not reached normal retirement age and who has retired under paragraph 16(1)(b) may, upon proof of good health and subject to the consent of the minister, be re-employed in a pensionable position.

(3) Where a pensioner accepts an offer of re-employment under this section, his or her pension shall be cancelled, and subject to the making of contributions as required under this Act, the period of subsequent employment shall, in calculating a pension upon subsequent retirement, be added to the years of pensionable service accumulated before his or her 1st retirement and the pension shall be calculated in accordance with section 18 as if the award of the former pension had not occurred.

(4) For the purpose of re-employment under this section, a pension does not include a survivor benefit.

Re-employment after 65 years

22. Where a pensioner becomes re-employed after reaching normal retirement age, his or her pension shall be suspended for the period of re-employment and that pensioner shall not be required to contribute further to the pension plan, nor shall he or she acquire additional pensionable benefits.

Survivor benefit

23. (1) A survivor benefit equal to 60% of

(a) the pension being paid to a pensioner who dies;

(b) the pension entitlement of an employee who dies in service; or

(c) the pension entitlement of a deferred pensioner who dies would have received had he or she reached normal retirement age at the time of his or her death,

shall be paid to the surviving spouse for life commencing on the 1st day of the month following the month in which the death of the pensioner, employee or deferred pensioner occurs.

(2) The survivor benefit payable under subsection (1) shall be paid equally to or for the benefit of the surviving children of a pensioner, employee or deferred pensioner where

(a) the surviving spouse in receipt of a survivor benefit dies; or

(b) the pensioner, employee or deferred pensioner dies leaving children under the age of 18 years, but no surviving spouse.

(3) Notwithstanding subsection (2), the age limit of 18 set out in that subsection is increased to 24 if the child is in full-time attendance at a recognized school or post-secondary institution.

Estate provision

24. Where the total pension or survivor benefit paid under this Act at the date the pensioner dies or the last survivor benefit has been paid does not exceed the deceased employee's contributions together with the prescribed interest calculated to the date of retirement, the difference in the amount of contributions together with interest and the total pension or survivor benefits shall be paid in accordance with subsection 7(2).

When pensions payable

25. (1) Pensions shall be paid as the minister directs.

(2) Pension payments shall cease at the end of the month in which the death of the pensioner occurs.

Payments out of fund

26. Pensions and all other money payable under this Act shall be paid out of the pension fund.

Pension not assignable

27. No pension may be assigned or given as security except as provided under The Pension Benefits Act, but the minister may

(a) approve payment of a pension to a relative of a pensioner or to another person on the authority in writing of the pensioner or another person authorized by the pensioner to act on his or her behalf;

(b) direct that payment of a pension be made to a relative or other person who maintains or who is responsible for the maintenance of a pensioner who is incapacitated; or

(c) direct that payment of the whole or part of a pension be made to a relative or other person who maintains or is responsible for the maintenance of a dependent child or a pensioner.

Attachment

28. A pension awarded under this Act shall not be liable to or be taken under attachment or execution.

Error or misrepresentation

29. The minister may adjust or cancel a pension which has been awarded or paid as a result of error or misrepresentation and where an overpayment of pension has been made the minister may reduce, suspend or withdraw future payments of the pension until the amount has been recovered.

Rectification

30. Where a pension has been underpaid or unusual delays in payments have occurred, the minister may make payments in rectification in those cases together with interest that may be prescribed.

Committee

31. The Lieutenant-Governor in Council may appoint a committee to assist the minister in the administration of this Act and may prescribe the duties of the committee and designate from time to time the matters on which the Committee shall make recommendations to the minister.

Marriage breakdown

32. (1) In this section

(a) "court" means the Trial Division or the Unified Family Court;

(b) "marriage contract" means marriage contract as defined in The Family Law Act;

(c) "separation agreement" means separation agreement as defined in The Family Law Act; and

(d) "spouse" means spouse as defined in The Family Law Act.

(2) Where an employee or former employee is entitled to a pension and

(a) a petition for divorce is filed;

(b) an application is filed for a declaration of nullity; or

(c) the employee or former employee and that person's spouse have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation,

that person's spouse may apply to the court for a division of that portion of the pension earned during the marriage.

(3) The court may, having regard to all the circumstances, order that the spouse of the employee or former employee shall receive a proportion of the pension earned during the marriage.

(4) Where, under this section, the court orders a division of a pension earned during the marriage or a marriage contract or separation agreement providing for the division of a pension earned during the marriage, the division of the pension shall be made in accordance with the regulations made under this Act.

(5) A marriage contract, a separation agreement or a division of a pension, including a pension or contributions made by order of the court under subsection (3) applies only in relation to benefits or contributions accrued between the date of marriage and the date of marriage breakdown.

(6) A subsequent spouse of the spouse of the employee or former employee is not entitled to a pension or other benefit under the pension plan by virtue of being a subsequent spouse.

(7) A spouse shall be provided with information that may be prescribed.

(8) Where a marriage contract, a separation agreement or a court order under subsection (3) provides for payment by the member or former member of a sum equal to and instead of the amount owing to the member, the spouse of the former member or the spouse of the pensioner in relation to a pension or survivor benefit, the pension fund is not liable for payments.

Regulations generally

33. (1) The Lieutenant-Governor in Council may make regulations

(a) designating a class or classes of persons, otherwise coming within the definition of "employee" provided by paragraph 2(d) to and in respect of whom this Act shall not be applied;

(b) prescribing the number of hours for the purposes of paragraph 2(e) and other remuneration for the purposes of paragraph 2(p);

(c) excluding an employee or group of employees from participating in the pension plan, notwithstanding subsection 3(1) and may prescribe terms and conditions for the removal of an employee or group of employees including the refund of contributions and matching amounts paid under the authority of this Act;

(d) prescribing additional years of pensionable service that may be credited to an employee and may prescribe the terms and conditions upon which that pensionable service shall be credited;

(e) prescribing interest and contribution rates;

(f) prescribing certain amounts of deductions and contributions under section 5 and 6;

(g) prescribing the formula for calculating contribution rates under sections 8, 9, 10, 11 and 12;

(h) prescribing the terms and conditions under which an employee shall

(i) receive a pension under section 16,

(ii) be offered a suitable alternative position, or

(iii) other actions which are not inconsistent with the interest and purpose of section 16;

(i) designating an employee or class of employees or member of a class of employees for the purposes of subsection 19(3);

(j) determining the minimum period of time an employee designated under paragraph (i) shall be a member of a class of employees within the public service for the purpose of subsection 19(3);

(k) prescribing information with respect to pensions on marriage breakdown;

(l) prescribing the division of a pension earned during marriage or cohabitation;

(m) prescribing the duties of a committee established under section 31;

(n) defining, enlarging or restricting the meaning of a word or expression used in this Act but not defined in this Act; and

(o) respecting matters necessary or advisable to carry out effectively the intent and purpose of this Act.

(2) Regulations made under this section may be made with retroactive effect.

Regulations re certain employees

34. (1) The Lieutenant-Governor in Council may by regulations include in the pension plan persons employed on a full-time basis with

(a) a board, agency, commission or corporation created by or under a statute of the province in respect of which control, direct or indirect, whether by the appointment of members or otherwise vests in the Crown, or a corporation of which 50% of the outstanding common shares is owned by such a body, agency, commission or corporation;

(b) a Crown corporation within the meaning of The Crown Corporations (Local Taxation) Act;

(c) a person, firm or body, if, immediately before employment, the person was an employee, and the person was transferred to the employment of that person, firm or body at the request or under direction of the government of the province;

(d) a private home for special care as defined in subparagraph 2(b)(i) of The Private Homes for Special Care (Allowances) Act, 1973;

(e) a non-profit corporation, association or other body established under the laws of the province that, in the opinion of the Lieutenant-Governor in Council, has as its principal objective the provision of a service that it would otherwise be the responsibility of the province to provide and that is dependent substantially on the financial support of the province in order to provide the service;

(f) the Association of Registered Nurses of Newfoundland;

(g) the Public Service Credit Union Limited; or

(h) the Newfoundland and Labrador School Trustees Association.

(2) Regulations made under this section may prescribe the terms and conditions upon which prior service with a board, agency, commission, corporation, association, government or private home for special care referred to in subsection (1) may be counted as pensionable service under this Act and may provide for matters relating to the prior service, and all persons so included shall be considered to be employees for the purposes of paying contributions to and participating in the pension plan.

(3) Regulations made under this section may be made with retroactive effect.

Appeal

35. (1) An employee or other person who is aggrieved by a decision of the minister or of the Lieutenant-Governor in Council in a matter related to, connected with or arising out of his or her entitlement to or the award to him or her of a pension or other money under this Act may appeal from the decision to a judge of the Trial Division.

(2) Where an employee or other person proposes to appeal under subsection (1), he or she shall, within 60 days after he or she has received the decision of the minister or the Lieutenant-Governor in Council, serve on the minister a written notice of his or her intention to appeal to a judge of the Trial Division.

(3) The notice of appeal served under subsection (2) shall be signed by the employee or other person or by his or her solicitor or agent, and in the notice, the grounds of the appeal shall be set out, and the employee or other person shall file a copy of the notice in the Registry of the Supreme Court.

Procedure

36. (1) The employee or other person shall, within 14 days after service of the notice of appeal under subsection 35(2), apply to the judge for the appointment of a day for the hearing of the appeal, and shall, not less than 14 days before the hearing, serve upon the minister a written notice of the day appointed for the hearing.

(2) The judge shall hear the appeal and the evidence adduced before him or her by the employee or other person and by the minister in a summary manner and shall decide the matter of the appeal.

(3) The minister shall cause to be produced before the judge on the hearing of the appeal all papers and documents in the minister's possession affecting the matter of the appeal.

(4) The costs of the appeal are in the discretion of the judge who may make an order respecting them in favour of or against the minister and may fix the amount of the costs.

(5) An appeal may be taken from an order or decision of the judge to the Court of Appeal upon a point of law raised on the hearing of the appeal, and the rules governing appeals to that Court from an order or decision of a judge of the Trial Division apply to appeals under this subsection.

Conflict of Acts

37. (1) Where this Act conflicts with The Civil Service Act or another Act, this Act shall prevail.

(2) Notwithstanding subsection (1), where this Act conflicts with The Pension Benefits Act, that Act shall prevail and the Lieutenant-Governor in Council may make regulations to further comply with that Act.

Certain employees

38. Those persons who on the commencement of this Act are employed by the Newfoundland Association of Public Employees and who became members of the pension plan upon the terms and conditions set out in certain Orders-in-Council made under the authority of subsection 33(3) of the former Act shall continue to participate in the pension plan upon those same terms and conditions or those other terms and conditions that may be specified by order of the Lieutenant-Governor in Council from a date not earlier than April 1, 1967.

Existing plan protected

39. All benefits acquired under the former Act before the commencement of this Act are protected under this Act.

Existing regulations

40. Regulations made under the former Act and in force immediately before the commencement of this Act may be amended or revoked by regulations made under this Act as if they were made under this Act.

Income Tax (Canada)

41. For the purpose of the Income Tax Act (Canada)

(a) the pension adjustment factor as defined under the Income Tax Act (Canada) shall not exceed 18% for all years of service after December 31, 1990;

(b) all employer and employee contributions shall be made with reference to actuarial reports; and

(c) the minister is the administrator of the pension plan.

Acts amended

42. (1) Paragraph 3(d) of The Pensions Funding Act is repealed and the following substituted:

(d) the Public Service Pensions Act, 1991 and The Civil Service Act.

(2) Where in an Act or regulations there is a reference to The Public Service (Pensions) Act or a part or section of that Act, the reference shall be considered to be a reference to the equivalent part or section contained in the Public Service Pensions Act, 1991.

RSN 1970 c.319
Rep.

43. The Public Service (Pensions) Act is repealed.

Commencement

44. This Act comes into force on a date to be proclaimed by the Lieutenant-Governor in Council.

©Earl G. Tucker, Queen's Printer