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Statutes of Newfoundland 1991


CHAPTER 19

AN ACT TO REVISE AND AMEND THE LAW
RESPECTING PENSIONS FOR THE MEMBERS OF THE ROYAL NEWFOUNDLAND CONSTABULARY AND THE ST. JOHN'S FIRE DEPARTMENT AND THE STAFF OF HER MAJESTY'S PENITENTIARY

(Assented to May 31, 1991)

Analysis

1. Short title

2. Definitions

3. Application

4. Pension plan

5. Where pension prohibited

6. Contributions by employees

7. Employer's contributions

8. Payments

9. Repayment of contributions

10. Purchase of prior service

11. Pension rights on becoming an employee

12. Pensionable service

13. Purchase of service

14. Right to pension

15. Normal retirement

16. Compulsory retirement

17. Optional early retirement

18. Medical retirement

19. Calculation of pension

20. CPP reduction factor

21. Employee under former Act

22. Deferred pension

23. Employment after compulsory retirement on medical disability

24. Pension to survivor

25. Pension not assignable

26. Attachment

27. Error or mis-representation

28. Rectification

29. Committee

30. Marriage breakdown

31. Eligibility

32. Benefits

33. Regulations

34. Appeal

35. Procedure

36. Conflict of Acts

37. Existing plan protected

38. Income Tax (Canada)

39. Acts amended

40. Retirement age advanced

41. 1982 c.49 Rep.

42. 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 Uniformed Services 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) "employee" means

(i) every member of the Royal Newfoundland Constabulary as defined in The Royal Newfoundland Constabulary Act;

(ii) every member of the St. John's Fire Department as defined in The St. John's Fire Department Act, 1972, and

(iii) the superintendent, every assistant superintendent and every commissioned and correctional officer of the penitentiary,

employed by the government of the province on a full-time basis, but does not include a casual, part-time or contractual person whose terms of employment specifically exclude him or her from participation in the pension plan, or other persons or group of persons excluded by the regulations;

(d) "former Act" means The Uniformed Services Pensions Act;

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

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

(g) "normal retirement age" means the end of the month in which an employee reaches the age of 60 years;

(h) "penitentiary" means the penitentiary as defined in The Prisons Act;

(i) "pension" means an annual pension payable to a former employee in accordance with this Act;

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

(k) "pension plan" means the Uniformed Services Pension Plan referred to in this Act;

(l) "pensionable salary" means the average of the best 3 years salary prior to retirement;

(m) "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;

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

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

(p) "RCA benefit" means the benefit payable under a retirement compensation arrangement established by this Act;

(q) "RCA commissioned officer" means an RCA employee who is

(i) the superintendent, an assistant superintendent, a captain or a lieutenant of the penitentiary,

(ii) the Chief of Police, a deputy chief of police, an inspector, a lieutenant and a superintendent of the Royal Newfoundland Constabulary, and

(iii) the Fire Chief, an assistant fire chief, a fire captain and a shift superintendent of the St. John's Fire Department;

(r) "RCA employee" means a member of the pension plan who had more than 19 years of pensionable service under the former Act and who has elected to participate in a retirement compensation arrangement;

(s) "RCA pensionable service" means service credited while in receipt of full salary and calculated in complete years which may be taken into account for the purpose of determining whether an employee has qualified for the award of an RCA benefit and the amount of the RCA benefit;

(t) "retirement compensation arrangement" means retirement benefits payable under this Act excluding those benefits payable under the pension plan;

(u) "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;

(v) "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 continuously 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;

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

(x) "year" means 12 months.

Application

3. (1) All employees shall be pensioned under the pension plan and this Act shall apply to and in respect of them.

(2) A person shall not be eligible to make contributions 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 RCA benefit under this Act or a pension under the former Act or pension provisions under predecessor legislation;

(c) is employed on a temporary basis for a period of less than 3 months; and

(d) is employed as a contractual officer whose terms of employment specify that this Act does not apply.

(3) An employee under this Act is not an employee for the purpose of pension provisions in another statute.

Pension plan

4. The Uniformed Services Pension Plan established under the former Act is continued, subject to this Act and the regulations, as the pension plan.

Where pension prohibited

5. An employee may not receive a pension under the pension plan until the employee has been credited with not less than 5 years of pensionable service.

Contributions by employees

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

(2) From the coming into force of this Act to March 31, 1991, there shall be deducted from the salary of every employee in the prescribed manner

(a) 6% of the portion of the employee's salary that is the employee's basic exemption under the Canada Pension Plan;

(b) 4.2% of the portion of the employee's salary that is 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; and

(c) 6% of the portion of the employee's salary that is in excess of the Year's Maximum Pensionable Earnings as defined by the Canada Pension Plan.

(3) From April 1, 1991, there shall be deducted from the salary of every employee in the prescribed manner

(a) 8.5% of the portion of the employee's salary that is the employee's basic exemption under the Canada Pension Plan;

(b) 6.7% of the portion of the employee's salary that is 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; and

(c) 8.5% of the portion of the employee's salary that is in excess of the Year's Maximum Pensionable Earnings as defined by the Canada Pension Plan.

(4) The Lieutenant-Governor in Council may prescribe a greater or lesser amount to be deducted from the salary of every employee under subsection (3).

(5) In addition to the amounts included in subsections (3) and (4), there shall be deducted from the salary of every RCA employee 3.5% of the employee's salary.

(6) Where an employee has accrued 37 years and 6 months of pensionable service or has attained normal retirement age, whichever 1st occurs, the employee is no longer required to make contributions under subsections (2), (3), (4) and (5) and shall not accrue additional pensionable service.

(7) Where contributions have been deducted in accordance with subsections (2), (3), (4) and (5) from the salary of an employee after contributions are not required under subsection (6), or where contributions have been deducted from the salary of an employee in excess of those as set out in subsection (2), (3), (4) or (5), those excess contributions shall be returned to the employee together with interest at the prescribed rate.

(8) All deductions made under subsections (2), (3) and (4) shall be deposited each month to the pension plan.

Employer's contributions

7. The government shall pay out of the Consolidated Revenue Fund and pay into the pension fund

(a) an amount equal to the employee contributions made under subsections 6(2), (3) and (4); and

(b) a greater or lesser amount that may be prescribed.

Payments

8. (1) Pensions and other related money payable under the pension plan shall be paid out of the pension fund.

(2) RCA benefits and other related money payable under a retirement compensation arrangement shall be paid out of the Consolidated Revenue Fund.

(3) Pensions and RCA benefits shall be paid as the minister directs and shall cease at the end of the month in which the death of the pensioner occurs.

(4) Survivor benefits shall be paid as the minister directs and shall cease at the end of the month in which the death of the survivor occurs or the entitlement of the children ends.

Repayment of contributions

9. (1) Subject to the locking-in provisions of The Pension Benefits Act and to subsection (2), where an employee 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 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 1 or more 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 have regard to payments made or 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

10. Where a person who was covered under a pension plan established under

(a) this Act;

(b) the former Act;

(c) The Constabulary (Pensions) Act; or

(d) the pension provisions of another predecessor Act,

and received a refund of contributions upon termination from these plans and becomes an employee before attaining normal retirement age, that person may elect to purchase that pensionable service under the respective pension plans by paying the prescribed amount.

Pension rights on becoming an employee

11. 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 Public Service (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.

Pensionable service

12. Pensionable service shall be counted from the date on which the employee commences making contributions to the pension plan, but shall not include

(a) leave of absence without pay unless contributions are paid in respect of that leave; or

(b) service in respect of which contributions payable under this Act have not been paid.

Purchase of service

13. (1) All sums payable under sections 10, 11 and 12 together with the prescribed interest may be paid by 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.

(2) Service shall not be credited as pensionable service under sections 11 and 12 where the person is receiving a pension in relation to that service.

Right to pension

14. (1) An employee shall, subject to this Act, receive a pension as a matter of right.

(2) An RCA employee shall, subject to this Act, receive an RCA benefit as a matter of right.

Normal retirement

15. An employee, excluding an RCA employee who is not an RCA commissioned officer, who has accrued at least 5 years of pensionable service shall be awarded a pension from the last day of the month in which the employee reaches normal retirement age.

Compulsory retirement

16. An RCA employee who is not an RCA commissioned officer and who has been credited with at least 5 years of pensionable service, shall be awarded a pension or RCA benefit calculated and paid in accordance with the provisions of this Act on the earlier of

(a) the last of the month in which the RCA employee attains the age of 55 years; and

(b) the last of the month in which the RCA employee is credited with 25 years of pensionable service.

Optional early retirement

17. (1) An employee, excluding an RCA employer who is not an RCA commissioned officer referred to in section 16, who has not reached normal retirement age, and who has been credited with at least 25 years of pensionable service may elect to retire and shall be awarded a pension calculated and paid in accordance with this Act.

(2) Notwithstanding subsection (1), an RCA commissioned officer who is the fire chief or an assistant fire chief of the St. John's Fire Department or the chief of police or a deputy chief of police of the Royal Newfoundland Constabulary or the superintendent or an assistant superintendent of the penitentiary or those other commissioned officers that may be designated by the Lieutenant-Governor in Council from time to time, and

(a) has attained the age of 55 years; and

(b) has accrued not less than 30 years of pensionable service,

may elect to retire and receive from the last day of the month in which the retirement becomes effective, a pension calculated in accordance with section 19.

Medical retirement

18. (1) An employee or RCA employee who has been credited with at least 5 years of pensionable service, has used up all sick leave entitlement and is unable to perform efficiently the duties of his or her position or those duties of an alternative position owing to an incapacity which is medically certified to the satisfaction of the minister as likely to be permanent, shall be awarded a pension or RCA benefit from a date to be determined by the minister.

(2) Notwithstanding subsection (1), the minister reserves the right to require an employee or RCA 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 or RCA employee to reasonably perform the duties of his or her position or alternative position.

(3) Where an employee or RCA 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 or RCA employee shall be ineligible for a pension or RCA benefit under this section.

(4) Where an employee or RCA employee who retired under subsection (1) 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 or RCA employee may be cancelled by the minister.

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

Calculation of pension

19. (1) A pension awarded to an employee, other than an RCA employee, is the product of 2% of the pensionable salary of the employee multiplied by the number of years or fraction of years credited as pensionable service prior to retirement.

(2) A pension awarded under subsection (1) shall not exceed 75% of the employee's pensionable salary as calculated under subsection (1).

(3) A pension awarded to an RCA employee who retires during the period from the commencement of this Act to December 31, 1991 shall be the product of

(a) 2% for each year of service up to the completion of 20 years of pensionable service;

(b) 4% for each year of pensionable service after the completion of 20 years up to the completion of 25 years of pensionable service;

(c) 2% for each year of pensionable service after 25 years up to the completion of 29 years of pensionable service; and

(d) 7% for the completion of the 30th year of pensionable service,

multiplied by the rate of salary earned by the RCA employee immediately prior to retirement.

(4) The pension of an RCA employee who retires after December 31, 1991 shall be the sum of

(a) the pension calculated in accordance with subsection (3) for all RCA pensionable service accrued up to December 31,1991, based on the rate of salary earned immediately prior to retirement; and

(b) for all RCA pensionable service accrued after December 31, 1991, the lesser of

(i) the pension calculated in accordance with subsection (3) for each year of pensionable service completed after December 31, 1991, or

(ii) the pension calculated as 2% for each year of RCA pensionable service completed after December 31, 1991 times the average indexed salary.

(5) For the purposes of subparagraph (4)(b)(ii) the average indexed salary shall be the maximum allowable salary under the Income Tax Act (Canada).

(6) Notwithstanding the calculation of a pension under this section, the pension payable shall not exceed the maximum allowable for registered pension plans under the Income Tax Act (Canada).

CPP reduction factor

20. (1) A pension or RCA benefit awarded under section 19, with the exception of the portion of the pension or RCA benefit calculated under subparagraph 19(4)(b)(ii), shall be reduced by 6/10 of 1% of the employee's average annual salary multiplied by the number of years or fractions of years of RCA pensionable service credited after March 31, 1967, not exceeding 35 years.

(2) Notwithstanding subsection (1), the portion of an RCA benefit calculated under subparagraph 19(4)(b)(ii) shall not be reduced.

(3) For the purposes of subsection (1), an employee's average annual salary may not exceed the average of the employee's Yearly 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.

(4) A pension of an employee shall be reduced under subsection (1) at a time which is the earlier of

(a) the 1st day of the month following the month in which the employee reaches the age of 65; 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 prior to age 65, the amount of the reduction as calculated under subsection (1) 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).

Employee under former Act

21. (1) An employee who on the commencement of this Act was an employee under the former Act shall be credited under this Act with all pensionable service accrued at the service accrual rate under the former Act.

(2) An employee or RCA employee credited with service under subsection (1) who retires after the commencement of this Act shall receive a pension or pension and RCA benefit in accordance with this Act.

(3) An employee with pensionable service under subsection (1) who elects to retire after the commencement of this Act shall receive a pension in accordance with this Act and where the calculated pension is less than the accrued pension calculated under the former Act at the date of commencement of this Act, the benefits payable under this Act shall be increased to the amount calculated under the former Act at the date of commencement of this Act.

(4) Where the pension or the total of the pension and RCA benefit calculated in accordance with subsection (3) is less than the accrued pension as calculated under the former Act immediately prior to the commencement of this Act, the pension or total of the pension and RCA benefit payable shall be increased to the amount of the accrued pension as calculated under the former Act immediately prior to the commencement of this Act.

Deferred pension

22. (1) An employee who has been credited with at least 5 years of pensionable service or RCA pensionable service may elect to terminate his or her employment and defer payment of a pension or RCA benefit until the employee reaches normal retirement age.

(2) Where an employee elects to receive a pension or RCA benefit under subsection (1), and subsequently becomes an employee, the employee is considered to have revoked his or her election.

(3) Where an employee makes an election under subsection (1) and later becomes a member of a pension plan to which The Portability of Pensions Act applies, the employee may revoke the election and have the pensionable service under this Act transferred under The Portability of Pensions Act.

(4) Where an employee makes an election under subsection (1) and there is an increase in the rate of pension, that increase shall apply to the employee's pension, as if the employee was a pensioner on the 1st day of the month immediately following the date of termination of employment.

(5) This section applies to persons entitled to a deferred pension payable under the former Act.

Employment after compulsory retirement on medical disability

23. (1) A pensioner who has not reached normal retirement age but is required to retire under section 18 and later becomes fit to work may, upon proof of good health and subject to the consent of the minister, be re-employed in a pensionable position.

(2) 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 under subsequent retirement, be added to the years of pensionable service accumulated prior to his or her 1st retirement and the pension shall be calculated in accordance with section 19 as if the award of the former pension had not occurred.

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

Pension to survivor

24. (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,

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 set out in that subsection is increased to 24 if the child is in full-time attendance at a recognized school or post-secondary educational institution.

(4) Where the 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 employee's effective date of pension, the difference shall be paid in accordance with subsection 9(2).

(5) Notwithstanding subsection (1), for the purpose of this section, a survivor benefit of a deceased RCA employee shall be 55% of the total of a pension and RCA benefit.

(6) For the purpose of this section, subsection (4) does not apply to a deceased RCA employee.

Pension not assignable

25. No pension may be assigned or given as security except as provided under The Pensions Benefit 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 is responsible for the maintenance of a pensioner who is incapacitated; or

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

Attachment

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

Error or misrepresentation

27. 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

28. Where a pension has been underpaid or unusual delays in payment have occurred, the minister may make payments in rectification in that case together with the prescribed interest.

Committee

29. 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 the matters on which the committee shall make recommendations to the minister.

Marriage breakdown

30. (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 provides 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 as 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 any payments.

Eligibility

31. (1) RCA benefits shall be payable only in respect of RCA employees who

(a) retire after the commencement of this Act; and

(b) have elected to receive RCA benefits within 60 days of the commencement of this Act.

Benefits

32. An RCA benefit shall be the difference between the pension as calculated under section 19 and the product of the rate of salary immediately prior to retirement multiplied by the following:

(a) 2% for each year of pensionable service up to the completion of 20 years;

(b) 4% for each year of pensionable service completed after the 20th year up to 25 years;

(c) 2% for each year of pensionable service completed after 25 years up to and including the 29th year; and

(d) 7% for the complete 30th year.

Regulations

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

(a) prescribing other remuneration for the purposes of paragraph 2(u);

(b) prescribing contribution and interest rates;

(c) prescribing additional years of pensionable service or RCA pensionable service that may be credited to employees for the purposes of calculating benefits under this Act and the conditions upon which that pensionable service or RCA pensionable service may be credited;

(d) respecting the manner and time in relation to which an employee may make an election under this Act;

(e) prescribing certain amounts of deductions and contributions under sections 6 and 7;

(f) prescribing the formula for calculating contribution rates under sections 10 and 11;

(g) prescribing the types of leave of absence without pay that may be considered as pensionable service or RCA pensionable service and the salary base and rate of contributions that shall apply in respect to leaves of absence;

(h) establishing the conditions under which an employee or other person may purchase service that shall be counted as pensionable service;

(i) respecting information with respect to pensions on marriage breakdown;

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

(k) prescribing the duties of a committee appointed under section 29;

(l) respecting the manner and time in relation to which an employee may make an election under this Act;

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

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

(2) Regulations made under subsection (1) may be made with retroactive effect.

Appeal

34. (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 the employee 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), the employee shall within 60 days after receiving the decision of the minister or of the Lieutenant-Governor in Council, serve on the minister a written notice of his or her intention to appeal to the 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

35. (1) The employee or other person shall, within 14 days after service of the notice of appeal under subsection 34(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 any 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

36. (1) Where this Act conflicts with The Royal Newfoundland Constabulary Act, The St. John's Fire Department Act, 1972, or The Prisons Act or regulations made under those Acts, this Act shall prevail.

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

Existing plan protected

37. All benefits acquired under the former Act prior to the commencement of this Act are protected under this Act.

Income Tax (Canada)

38. 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% of pensionable salary for all years of service after December 31, 1990;

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

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

Acts amended

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

(a) the Uniformed Services Pensions Act, 1991 and The Royal Newfoundland Constabulary Act;

(2) Where in an Act or regulation there is a reference to The Uniformed Services 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 Uniformed Services Pensions Act, 1991.

Retirement age advanced

40. (1) An RCA employee may request to have his or her normal retirement age reduced by up to 1 year as long as the contributions payable under this Act in respect of the period by which his or her normal retirement age is reduced are paid at twice the ordinary rate for contributions.

(2) Where an RCA employee requests to have his or her normal retirement age reduced under subsection (1) and pays the contributions required by that subsection, the Minister of Justice shall approve the reduction, and the period by which normal retirement age is reduced shall be included as pensionable service.

(3) Where an RCA employee requests to have his or her normal retirement age reduced under subsection (1), the RCA employee shall designate a month, the last day of which shall be the beginning of the period by which his or her normal retirement age is reduced.

(4) Notwithstanding subsection 42(1), this section is considered to have come into force on January 1, 1990 and shall apply to all RCA employees from January 1, 1990 up to and including March 31, 1991.

1982 c.49 Rep.

41. The Uniformed Services Pensions Act is repealed.

Commencement

42. (1) This Act is considered to have come into force on February 1, 1991.

(2) Notwithstanding subsection (1), with respect to those employees who are defined in subparagraph 2(c)(i), this Act is considered to have come into force on January 1, 1990 and this Act shall apply to those employees during that period.

(3) For greater certainty, the contribution rates set out in subsection 6(2) apply to and shall be deducted from the salary of those employees who are defined in subparagraph 2(c)(i) from January 1, 1990 up to and including March 31, 1991.

(4) Notwithstanding subsection (1), rights exercised by employees or government between February 1, 1991 and the day before the date of Royal Assent of this Act are protected.

©Earl G. Tucker, Queen's Printer