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Statutes of Newfoundland 1996


CHAPTER P-4

CHAPTER P-4.01

AN ACT RESPECTING PENSION BENEFITS

(Assented to December 19, 1996)

Analysis

PART I
SHORT TITLE AND DEFINITIONS

1. Short title

2. Definitions

PART II
ADMINISTRATION OF THE ACT

3. Minimum standards

4. Act prevails

5. Application of Act

6. Powers and duties of superintendent

7. Inspection of documents

8. Agreements

9. Certain agreements void

10. Fees

11. Annual audit

PART III
ADMINISTRATION OF PENSION PLANS

12. Administrators of pension plans

13. Administrator of multi-employer pension plan

14. Duties of administrator

15. Fundholder

16. Filing requirements

17. Conflict of interest

PART IV
REGISTRATION AND AMENDMENT OF
PENSION PLANS

18. Registration requirements

19. Eligibility for registration

20. Void amendments

21. Revocation of registration

PART V
STANDARDS FOR
REGISTRATION

22. Contents of pension plan documents

23. Eligibility for full-time employees

24. Eligibility for part-time employees

25. Disclosure of information

26. Termination of membership

27. Considered retirement

28. Normal retirement

29. Early retirement

30. Remittance

31. Failure to remit

32. Amounts to be held in trust

33. Money not assignable

34. Refund of contributions

35. Funding

36. Interest on contributions

37. Investments

38. Surplus

39. Fifty percent rule

40. Portability

41. Pre-retirement death benefit

42. CPP, QPP and OAS reduction

43. Vesting

44. Required terms

45. Joint and survivor pensions

46. Remarriage of spouse

PART VI
MARRIAGE BREAKDOWN

47. Pension entitlement on marriage breakdown

48. Types of pension plans

49. Limited membership

50. Adjustment of member's pension benefit

51. Considered election

52. Revocation of election

53. Clarification or objection

54. Regulations prescribe procedure to divide pension

55. Application

56. Family Law Act prevails

PART VII
SURPLUS AND
TRANSFER OF PLAN ASSETS

57. Surplus payment

58. Transfer of plan assets

PART VIII
TERMINATION, WIND-UP AND
DISPOSAL OF BUSINESS

59. Plan termination

60. Plan termination requirements

61. Termination payments

62. Distribution of plan assets

63. Appointment of administrator

64. Notice of entitlement

65. Failure to elect

66. Reduction of pension benefits

67. Successor employer

PART IX
RECONSIDERATION AND APPEALS

68. Reconsideration

69. Application to court

70. Service of documents

71. Appeal

PART X
OFFENCES AND
PUNISHMENT

72. Failure to comply

73. No action lies

74. Staff liability

75. Corporate liability

76. Contravention of the Act

77. Limitation

PART XI
REGULATIONS, REPEAL AND COMMENCEMENT

78. Regulations

79. Transition

80. RSN1990 cP-4 Rep.

81. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

PART I
SHORT TITLE AND DEFINITIONS


Short title

1. This Act may be cited as the Pension Benefits Act, 1997.

Definitions

2. In this Act

(a) "additional voluntary contribution" means an optional contribution by an employee under a pension plan that does not impose an obligation on the employer to make additional contributions or to provide additional benefits under the plan;

(b) "administrator" means

(i) the employer, or

(ii) a board of trustees, a pension committee or other body constituted in accordance with the terms of a pension plan or a collective agreement to manage the affairs of the plan;

(c) "bridging benefit" means a periodic payment provided under a pension plan to a former member for the purpose of supplementing the former member's pension benefit for a temporary period following early retirement and ceases not later than the date on which the member attains age 65;

(d) "commuted value" means the present value, calculated in the manner prescribed by the regulations and as of a fixed date, of a pension benefit;

(e) "continuous employment" means service for a period of time without regard to periods of temporary suspension of employment;

(f) "defined benefit plan" means a pension plan that is not a defined contribution plan;

(g) "defined benefit provision" means a provision of a pension plan under which a pension benefit for a member is determined in any way other than that described in the definition "defined contribution provision";

(h) "defined contribution plan" means a pension plan that consists of defined contribution provisions and does not contain defined benefit provisions other than

(i) a defined benefit provision relating to pension benefits accrued in respect of employment before the effective date of a pension plan, and

(ii) a defined benefit provision that provides for a minimum pension benefit the additional value of which, in the superintendent's opinion, is not significant;

(i) "defined contribution provision" means a provision of a pension plan under which a pension benefit of a member or former member is determined solely as a function of contributions, interest earned and other gains and losses allocated to that member or former member's account;

(j) "designated province" means a province that is a province as prescribed by the regulations in which there is in force legislation substantially similar to this Act;

(k) "early retirement" means the date or age specified in a pension plan in accordance with section 29;

(l) "employee" means a person who performs service for an employer in the province or in a designated province and is in receipt of or entitled to remuneration for the service;

(m) "employer" in relation to an employee, means the person or organization whether incorporated or unincorporated, carrying on business or established in the province, from whom the employee receives remuneration, and includes the successors or assigns of the person or organization;

(n) "former Act" means the Pension Benefits Act;

(o) "former member", in relation to a pension plan, means a person who has either ceased membership in the plan or has retired from the plan, and who retains a present or future entitlement to receive a benefit under the plan;

(p) "fundholder" means a person or institution who maintains a pension fund for the purpose of investment and payment of benefits as they become due;

(q) "insurance company" means a corporation authorized to carry on life insurance business in Canada;

(r) "joint and survivor pension benefit" means a pension benefit that continues until the death of the member or former member, or the spouse of that member or former member, whichever occurs later;

(s) "life annuity" means a sum of money payable yearly or at other regular intervals that continues for the life of the annuitant, and may be

(i) a deferred life annuity in which payment starts no earlier than one year after the purchase of the life annuity, or

(ii) an immediate life annuity in which payment starts within one year after the purchase of the life annuity;

(t) "member", in relation to a pension plan, means a person who has become a member of the plan and has neither ceased membership in the plan nor retired from the plan;

(u) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(v) "multi-employer pension plan" means a pension plan organized and administered for employees of 2 or more employers who contribute to the plan under an agreement, by-law or statute, where the plan provides pension benefits that are determined with reference to periods of employment with any or all of the participating employers except where both or all of those employers are affiliates within the meaning of the Corporations Act;

(w) "normal actuarial cost" means the cost of a pension benefit that is to accrue during a plan year determined on the basis of a going concern valuation as prescribed by the regulations;

(x) "normal form of pension" means the form of pension that would be paid to a member under a pension plan at normal retirement, but for section 45;

(y) "normal retirement" means the date or age specified in a pension plan in accordance with section 28;

(z) "participating employer", in relation to a multi-employer pension plan, means an employer who is required to contribute to that plan;

(aa) "pension benefit" means a periodic amount under a pension plan to which a member or former member or the spouse, beneficiary or estate of a member or former member, is or may become entitled;

(bb) "pension fund", in relation to a pension plan, means a fund maintained to provide pension benefits under the plan;

(cc) "pension plan" means a superannuation or other plan organized and administered to provide pension benefits to employees and to which the employer is required, in accordance with the plan, to contribute, but does not include

(i) an employee's profit sharing plan or a deferred profit sharing plan as defined in the Income Tax Act (Canada),

(ii) arrangements which provide benefits in excess of those allowed under the Income Tax Act (Canada), or

(iii) any other arrangement prescribed by the regulations;

(dd) "predecessor employer" means an employer who disposes of all or part of the employer's business, undertaking or assets;

(ee) "province of employment" means the province where an employee reports for work, but if the employee is not required to report for work, the province where an employer's establishment is located from which an employee's remuneration is paid;

(ff) "spouse", in relation to a member or former member, means, except in Part VI, a person of the opposite sex who

(i) not being married to the member or former member and,

(A) not being prevented by law from marrying the member or former member, has cohabited continuously with the member or former member in a conjugal relationship for a period of not less than one year, or

(B) being prevented by law from marrying the member or former member, has cohabitated continuously with the member or former member in a conjugal relationship for a period of not less than 3 years,

and is cohabiting or has cohabited with the member or former member within the preceding year, or

(ii) if there is no person described in subparagraph (i)

(A) is married to the member or former member,

(B) is married to the member or the former member by a marriage that is voidable and has not been voided by a judgment of nullity, or

(C) has gone through a form of marriage with the member or former member, in good faith, that is void and is cohabiting or has cohabited with the member or former member within the preceding year;

(gg) "successor employer" means an employer who acquires all or part of the business, undertaking or assets of a predecessor employer;

(hh) "superintendent" means the Superintendent of Pensions;

(ii) "surplus" means the excess of the value of the assets of a pension fund over the value of the liabilities under the pension plan, both calculated in the manner prescribed by the regulations; and

(jj) "YMPE" means the year's maximum pensionable earnings as defined under the Canada Pension Plan.

PART II
ADMINISTRATION OF THE ACT

Minimum standards

3. The requirements of this Act shall not prevent the registration or operation of a pension plan containing a provision that is more advantageous to a member or former member, or the spouse, beneficiary or estate of a member or former member.

Act prevails

4. In the event of a conflict between this Act and another Act, this Act prevails with the exceptions noted in section 33 and Part VI.

Application of Act

5. This Act applies to all pension plans for persons employed in the province, except those pension plans to which an Act of the Parliament of Canada applies.

Powers and duties of superintendent

6. (1) The Lieutenant-Governor in Council shall appoint a Superintendent of Pensions.

(2) The superintendent, subject to the approval of the minister, has the control and supervision of the administration of this Act, and has the following powers and duties:

(a) to examine all pension plans and all amendments to those plans that are filed for registration under this Act;

(b) to register and issue certificates of registration in respect of all pension plans that are filed for registration under this Act and comply with the standards for registration;

(c) to refuse to register a pension plan that does not comply with this Act;

(d) to carry out periodic or other inspections and audits of registered pension plans;

(e) to revoke the registration and cancel the certificate of registration for a pension plan that ceases to comply with the requirements of this Act;

(f) to direct the administrator of a pension plan to provide information to plan members at a time and in a manner specified by the superintendent;

(g) to assess and collect fees for the registration and annual supervision of pension plans; and

(h) to perform other functions and duties that the Lieutenant-Governor in Council may assign.

(3) On receipt of a written request and if satisfied reasonable grounds exist for the extension, the superintendent may extend a time limit imposed under this Act to a maximum of 6 months.

(4) The superintendent may place a pension plan under trusteeship and appoint one or more persons to act as trustee of the plan where, in the opinion of the superintendent, it is necessary to do so.

(5) The cost of administering a pension plan by a trustee under subsection (4) is to be paid

(a) by the employer; or

(b) by the plan fund where, in the opinion of the superintendent, special circumstances exist.

Inspection of documents

7. (1) The superintendent may inspect the books, documents and other records respecting a pension plan kept by an employer, an insurance company, a trustee of the plan or other person and require that person to furnish information which the superintendent considers necessary.

(2) Where the superintendent believes that a person has contravened this Act, the superintendent or an authorized representative may, with a warrant issued under subsection (3), enter the business premises and investigate and examine the affairs of the person in respect of whom the investigation is being made, and any books, documents and other records in relation to that person.

(3) A Provincial Court judge or justice of the peace, who is satisfied by information upon oath that there are reasonable grounds to believe that there has been a contravention of this Act, may issue a warrant authorizing the superintendent or an authorized representative to enter and search any business and to make inquiries and copies of books, documents and other records considered necessary, subject to conditions specified in the warrant.

(4) The owner, or person in charge of the premises referred to in this section, and every person found on the premises shall furnish information requested by the superintendent or an authorized representative and shall assist him or her to carry out his or her functions under this section.

Agreements

8. (1) The minister may

(a) subject to the Executive Council Act, enter into agreements;

(b) authorize the Canadian association of pension supervisory authorities to exercise or perform powers and functions of the superintendent;

(c) delegate to a pension supervisory authority or the government of a designated province or of Canada, powers and functions under this Act; and

(d) authorize the superintendent to accept a delegation of powers and functions from a pension supervisory authority or the government of a designated province or of Canada.

(2) The minister may, subject to the approval of the Lieutenant-Governor in Council, enter into an agreement with the government of a designated province or of Canada, or with more than one of them, to provide that where a pension plan is subject to both this Act and an Act of one or more of those other jurisdictions, either

(a) this Act or a part of it is not to apply and the legislation or part of the legislation of the other jurisdiction is to apply to the plan; or

(b) this Act or a part of it is to apply and the legislation or part of the legislation of the other jurisdiction is not to apply to the plan,

and to establish conditions for the application of the laws referred to in paragraphs (a) and (b).

(3) An agreement entered into under subsection (2) shall specify the date on which it comes into force and the agreement acquires the force of law in the province as of that date.

Certain agreements void

9. Where this Act requires an amount to be deducted, withheld, paid or credited, an agreement or arrangement to not deduct, withhold, pay or credit that amount is void.

Fees

10. The minister may set fees for the administration of this Act.

Annual audit

11. The accounts and transactions of the superintendent shall be examined annually by the auditor general.

PART III
ADMINISTRATION OF PENSION PLANS

Administrators of pension plans

12. (1) Except in the case of a multi-employer pension plan, the administrator of a plan shall be

(a) the employer;

(b) a pension committee composed of one or more representatives of

(i) the employer or a person other than the employer required to make contributions under the plan, and

(ii) the members;

(c) a pension committee composed only of representatives of the members;

(d) the insurance company that provides the pension benefits where all the benefits under the plan are guaranteed by the insurance company; or

(e) a board, agency, commission or other body responsible for the administration of the plan.

(2) Notwithstanding subsection (1), where a pension plan has more than 49 members and the majority of members so request in writing, the employer shall establish a pension advisory committee, which shall consist of at least one representative who is a member of the plan and one former member who is in receipt of a pension benefit under the plan.

(3) A pension advisory committee may review and provide advice on

(a) the financial, actuarial and administrative aspects of the plan; and

(b) any other matters relating to the plan as requested by the employer or administrator.

Administrator of multi-employer pension plan

13. (1) In the case of a multi-employer pension plan established under one or more collective agreements, the administrator of the plan shall be a board of trustees or other similar body constituted in accordance with the terms of the plan to manage the affairs of the plan and, unless otherwise determined under the collective agreement, at least one half of the representatives of the board or other body shall be representatives of the members of the plan.

(2) In the case of a multi-employer pension plan not described in subsection (1), the administrator of the plan shall be a pension committee constituted in accordance with the terms of the plan to manage the affairs of the plan.

(3) The powers and duties of a board of trustees or other body that acts as an administrator of a multi-employer pension plan shall be in writing and shall be as approved by the superintendent.

Duties of administrator

14. (1) An administrator shall administer a pension plan and pension fund as a trustee for the employer, the members and former members of the plan, and other persons with an entitlement under the plan.

(2) An administrator of a pension plan is responsible for administering the plan and the pension fund and for filing the required documents in accordance with this Act.

(3) An employer, who is not the administrator of a pension plan, shall provide the administrator with the information required by that administrator in order to comply with the terms of the plan and discharge the responsibilities under subsection (2).

(4) An administrator of a pension plan shall, within 30 days of becoming the administrator, inform the superintendent of

(a) the administrator's name and address;

(b) the names and addresses of the persons who constitute the body that is the administrator; and

(c) a change in the membership of the body that is the administrator.

Fundholder

15. A pension fund shall be maintained by one or a combination of the following:

(a) a government;

(b) an insurance company under a contract of insurance;

(c) a trust in Canada governed by a written trust agreement under which the trustees are

(i) a trust corporation referred under the Trust and Loan Corporations Licensing Act,

(ii) 3 or more individuals, at least 3 of whom reside in Canada and at least one of whom is independent of any employer contributing to the pension fund, to the extent the individual is neither a significant shareholder, partner, proprietor, director, officer, or an employee of an employer contributing to the pension fund or an affiliate of that employer, or

(iii) a corporate pension society established under the Pension Fund Societies Act (Canada); and

(d) a board, agency, commission or corporation made responsible by an Act of the Legislature for the administration of the pension fund.

Filing requirements

16. (1) An administrator of a pension plan shall file with the superintendent an information return for the plan in the form and containing the information required by the superintendent and as prescribed by the regulations.

(2) An administrator of a pension plan shall file other information required by the superintendent and as prescribed by the regulations.

(3) The contents and the method of preparation of the reports and qualifications of the persons or classes of persons by whom the report must be prepared shall be as required by the superintendent and as prescribed by the regulations.

Conflict of interest

17. (1) A person shall not be appointed to a body referred to in paragraph 12(1)(b), (c) or (e) or subsections 13(1) and (2) if there is a conflict of interest between the person's role as a member of the body and the person's role in any other capacity.

(2) Where a person described in subsection (1) has a conflict of interest he or she shall, within 30 days after becoming aware of the conflict, declare the conflict to the body and, as the body directs,

(a) abstain from the matter of the conflict;

(b) eliminate the conflict; or

(c) resign as a member of the body.

(3) Where the employer is the administrator of a pension plan under paragraph 12(1)(a), if there is a conflict of interest between the employer's role as administrator and the employer's role in any other capacity, the employer shall

(a) within 30 days after becoming aware of the conflict, declare the conflict to the pension committee or to the members of the plan; and

(b) act in the best interests of the members of the plan.

PART IV
REGISTRATION AND AMENDMENT OF PENSION PLANS

Registration requirements

18. (1) An administrator of a pension plan applying for registration of the plan, or an amendment to the plan, shall do so as required by the superintendent and shall provide the information required by the superintendent.

(2) The superintendent shall issue a certificate of registration for each pension plan registered under this Act and a notice of registration for each amendment registered under this Act.

(3) An administrator of a pension plan shall not administer the plan unless it is filed for registration under this Act.

(4) Where registration of a pension plan has been refused or revoked by the superintendent, a person shall not administer the plan except for the purpose of a wind-up of the plan.

Eligibility for registration

19. (1) A pension plan is not eligible for registration unless

(a) it provides for the accrual of pension benefits in a gradual and uniform manner; and

(b) the formula for computation of the employer's contributions to the pension fund or the pension benefit provided under the plan is not variable at the discretion of the employer.

(2) A pension plan that contains a defined contribution provision is not eligible for registration if the formula governing allocation of contributions to the pension fund among members of the plan is variable at the discretion of the employer.

(3) Notwithstanding subsections (1) and (2), the superintendent may register a pension plan if the superintendent is of the opinion that registration is justified in the circumstances of the plan and the members.

Void amendments

20. (1) An amendment to a pension plan is void if the amendment reduces the amount or the commuted value of a pension benefit or a deferred pension benefit accrued under the plan with respect to employment before the effective date of the amendment.

(2) Subsection (1) does not apply to

(a) a multi-employer pension plan established under a collective agreement; or

(b) a pension plan that contains a defined benefit provision if the obligation of the employer to contribute to the pension fund is limited to a fixed amount set out in a collective agreement.

(3) Subject to the approval of the superintendent, subsection (1) does not apply where the amendment is required for the purpose of maintaining registration as a registered plan under the Income Tax Act (Canada).

Revocation of registration

21. (1) The revocation of registration of a pension plan shall be considered to constitute termination of the plan.

(2) The superintendent may revoke registration of a pension plan if he or she reasonably believes that the

(a) plan or pension fund is not being administered in accordance with this Act or the plan;

(b) plan does not comply with this Act; or

(c) administrator of the plan, the employer or another person is in contravention of this Act.

PART V
STANDARDS FOR REGISTRATION

Contents of pension plan documents

22. (1) The documents that create and support a pension plan shall set out

(a) the method of appointment and the details of appointment of the administrator;

(b) if the plan is a multi-employer pension plan under a collective agreement, the powers and duties of the board of trustees or other body that is the administrator of the multi-employer pension plan;

(c) the conditions for membership;

(d) the benefits and rights that are to accrue upon termination of employment, cessation of membership, termination of the plan, retirement or death, and the division of pension benefits between a member or former member and his or her spouse or former spouse on marriage breakdown;

(e) the normal retirement date;

(f) the contributions or the method of calculating the contributions required;

(g) the method of determining pension benefits payable;

(h) the method of calculating interest to be credited on contributions in accordance with section 36;

(i) the means for payment of the cost of administration of the plan and pension fund;

(j) the means for establishing and maintaining the pension fund;

(k) the treatment of surplus during the continuation of the plan and on termination of the plan;

(l) the obligation of the administrator to provide members with information and documents required to be disclosed under the section 25;

(m) a provision for funding of pension benefits provided under the plan which sets out the obligation of the employer, or any person required to make contributions on behalf of an employer, to contribute both in respect of the normal cost of those benefits and any going concern unfunded liabilities and solvency deficiencies under the plan; and

(n) where the plan is a multi-employer pension plan established under a collective agreement or contains a defined benefit provision where the obligation of an employer to contribute to the plan is limited to a fixed amount set out in a collective agreement, a provision for the funding of pension benefits and any other benefits provided under the plan which sets out the obligation of an employer, or a person required to make contributions on behalf of the employer, to contribute to the pension fund.

(2) Unless otherwise provided by a pension plan, the fiscal year of a pension plan shall be considered to commence on January 1 and end on December 31 and, except as otherwise approved by the superintendent, the fiscal year of a pension plan shall not exceed 12 months.

Eligibility for full-time employees

23. Each employee who works on a full-time basis and is a member of a class of employees prescribed by the regulations for which a pension plan is provided shall be eligible to become a member of that plan after

(a) the employee completes 24 months of continuous employment with the employer, or a lesser period of employment, whether continuous or not, as the plan provides; or

(b) in the case of a multi-employer pension plan, the day on which both the following requirements have been fulfilled:

(i) 24 months have elapsed since the employee was first employed with a participating employer, and

(ii) the employee has earned, in respect of employment with a participating employer, at least 35% of the YMPE in each of 2 consecutive calendar years

or as approved by the superintendent.

Eligibility for part-time employees

24. (1) Where a pension plan is provided for members of a class of full-time employees prescribed by the regulations, each employee who works part-time for that employer and is a member of that prescribed class shall be eligible to become a member of that plan on or after the day on which both the following requirements have been fulfilled:

(a) completion of 24 months of continuous employment with the employer; and

(b) the employee has earned, in respect of employment with the employer, at least 35% of the YMPE in each of 2 consecutive calendar years,

or as approved by the superintendent.

(2) An administrator of a pension plan may meet the requirements of subsection (1) by providing a separate pension plan for part-time employees.

(3) A separate pension plan under subsection (2) shall be reasonably comparable to the plan covering full-time employees in terms of the average value of pension benefits provided or the average rates or amounts of contributions considering the differences in the number of hours worked in the relevant period of employment.

Disclosure of information

25. (1) An administrator of a pension plan shall provide in writing to a person eligible or required to become a member of the plan

(a) an explanation of the terms and conditions and any subsequent amendments of the plan applicable to the person;

(b) an explanation of that person's rights and obligations in respect of the plan; and

(c) other information that the superintendent requires to be provided.

(2) The information referred to in subsection (1) shall be provided,

(a) to a person who becomes a member of a pension plan on the date the plan is established, within 60 days after the date the plan is established;

(b) to an employee who will become eligible to become a member of a pension plan, at least 60 days before the date on which the person will become eligible; and

(c) to a person who is eligible to become a member of a pension plan upon commencing employment, within 60 days after the person's commencement of employment.

(3) Where an amendment to a pension plan which affects the member's or former member's rights and obligations in respect of the plan is registered under this Act, the administrator of the plan shall, within 60 days after registration, provide a written notice and an explanation of the amendment to each member, former member or other person who is or will be affected by the amendment.

(4) An administrator of a pension plan shall, at least once every 3 years or at the written request of a member or former member, provide each member, or that member or former member, with a written statement as required by the superintendent.

(5) Where a member of a pension plan retires, ceases membership in the plan or dies, the administrator of the plan shall provide a written statement as required by the superintendent.

(6) Where an employer applies to the superintendent to withdraw surplus from a pension plan, the employer shall provide a written notice, as required by the superintendent, to persons required by the superintendent.

(7) Each member or former member or spouse of a member or former member of a pension plan, once in each fiscal year of the plan may, personally or by an agent authorized in writing for that purpose, request in writing to examine documents filed with the superintendent under section 16, subsection 18(1) or a regulation or requirement of the superintendent under this Act, at the office of the administrator of the plan or at another place as agreed, and may request a photocopy of those documents.

Termination of membership

26. (1) A member of a pension plan shall be considered to cease membership in the plan when the member's employment with the employer terminates and the member is not in receipt of an immediate pension benefit, whether or not contributions by the employer in respect of that member have ceased previously.

(2) A member of a multi-employer pension plan is entitled to cease membership in the plan when no contributions have been made in respect of that member by a participating employer for a period of 24 months, or a shorter period as provided under the plan, and the member is not in receipt of an immediate pension benefit.

(3) For the purpose of determining a pension benefit for a member or former member of a pension plan under this Act, a person who ceases membership in the plan is considered to have terminated employment.

(4) An employee who is a member of a pension plan shall continue as a member of the plan as long as the employee's employment in respect of which the plan is maintained continues.

Considered retirement

27. A member of a pension plan shall be considered to retire on receipt of an immediate pension benefit, whether or not the member's employment has terminated.

Normal retirement

28. (1) A pension plan shall provide for normal retirement calculated with reference to the age when members are normally eligible to start receiving a pension in accordance with the plan without reduction or increase, and normal retirement shall be not later than the date the member or former member attains age 66.

(2) A member or former member's pension benefit shall begin before the end of the calendar year in which the member or former member attains the age at which a pension benefit is required to begin under the Income Tax Act (Canada).

Early retirement

29. (1) A pension plan shall provide for early retirement beginning any time on or after the date on which the member attains age 55.

(2) A former member of a pension plan is entitled to elect early retirement under the plan where the former member

(a) terminated employment with the employer before January 1, 1997;

(b) is entitled to a deferred pension benefit under this Act; and

(c) has attained age 55 or an earlier age permitted by the plan.

(3) An election under subsection (2) shall be made in writing by the former member and delivered to the administrator of the plan.

(4) A pension benefit on early retirement may be reduced provided the commuted value of the reduced pension benefit is not less than the commuted value of the pension benefit that would have been payable at normal retirement of the member or former member.

Remittance

30. (1) An employer shall, within the period prescribed by the regulations, remit employer and member contributions due under a pension plan, and other payments required under this Act,

(a) in the case of a multi-employer pension plan, to the administrator of the plan; and

(b) in the case of another pension plan, to the fundholder.

(2) Where the administrator of a multi-employer pension plan is not the trustee, the administrator shall, immediately on receipt of contributions, remit them to the trustee, and where the trustee is not the fundholder, the trustee shall immediately remit them to the fundholder.

(3) Where an employer fails to remit contributions in accordance with subsection (1), subsequent payment of contributions shall include interest on the contributions as prescribed by the regulations.

Failure to remit

31. Where an employer or trustee fails to remit contributions required under section 30 within 30 days after the end of the period prescribed by the regulations, the administrator of the plan or, where the employer or trustee is the administrator of the plan, the fundholder, who should have received them shall immediately notify the superintendent in writing of the failure.

Amounts to be held in trust

32. (1) An employer or a participating employer in a multi-employer plan shall ensure, with respect to a pension plan, that

(a) the money in the pension fund;

(b) an amount equal to the aggregate of

(i) the normal actuarial cost, and

(ii) any special payments prescribed by the regulations, that have accrued to date; and

(c) all

(i) amounts deducted by the employer from the member's remuneration, and

(ii) other amounts due under the plan from the employer that have not been remitted to the pension fund

are kept separate and apart from the employer's own money, and shall be considered to hold the amounts referred to in paragraphs (a) to (c) in trust for members, former members, and other persons with an entitlement under the plan.

(2) In the event of a liquidation, assignment or bankruptcy of an employer, an amount equal to the amount that under subsection (1) is considered to be held in trust shall be considered to be separate from and form no part of the estate in liquidation, assignment or bankruptcy, whether or not that amount has in fact been kept separate and apart from the employer's own money or from the assets of the estate.

(3) Where a pension plan is terminated in whole or in part, an employer who is required to pay contributions to the pension fund shall hold in trust for the member or former member or other person with an entitlement under the plan an amount of money equal to employer contributions due under the plan to the date of termination.

(4) An administrator of a pension plan has a lien and charge on the assets of the employer in an amount equal to the amount required to be held in trust under subsections (1) and (3).

Money not assignable

33. Money payable under a 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 as security such money is void, except where this section is overridden by another Act, or in circumstances prescribed by the regulations.

Refund of contributions

34. On cessation of membership in a pension plan, a member is entitled to withdraw from the plan an amount equal to the aggregate of the member's own contributions, together with interest as prescribed by the regulations, in respect of a period of membership for which the member is not entitled to a pension benefit under section 28, 29, or 43.

Funding

35. (1) A pension plan shall provide for funding, in accordance with the requirements for solvency as prescribed by the regulations, which is adequate to provide for payment of all pension benefits required to be paid under the plan.

(2) In the case of an actuarial report required under section 16, where the superintendent is of the opinion that the report has not been prepared

(a) on the basis of actuarial assumptions or methods that are adequate and appropriate; and

(b) in accordance with accepted actuarial practice,

the superintendent shall notify the administrator of the plan in writing of this opinion and shall direct the administrator to have the appropriate changes made to the report, and the administrator shall immediately comply with that direction.

(3) A pension plan shall be funded in accordance with the report referred to in subsection (2) as amended in accordance with the direction of the superintendent.

Interest on contributions

36. (1) In the case of a defined contribution plan, the members' accounts shall be credited with interest, gains and losses that can reasonably be attributed to the operation of the pension fund.

(2) In the case of a defined benefit plan,

(a) interest shall be credited on members' contributions at a rate equal to or greater than the rate required by the superintendent; or

(b) members' contributions shall be credited with interest, gains and losses that can reasonably be attributed to the operation of the pension fund,

and the plan shall specify which of paragraph (a) or (b) operates, but the plan may specify that one of those paragraphs applies to required contributions and the other paragraph applies to additional voluntary contributions, in which case the reference in paragraph (b) to "the operation of the pension fund" shall be read as either "the operation of that portion of the pension fund that relates to required contributions" or "the operation of that portion of the pension fund that relates to additional voluntary contributions", whichever is appropriate.

(3) The rate required by the superintendent under subsection (2) shall be determined to reflect current interest rates.

(4) Interest, gains and losses referred to in subsections (1) and (2) shall be calculated and applied to contributions as prescribed by the regulations.

Investments

37. Assets of a pension plan shall be invested as prescribed by the regulations.

Surplus

38. (1) Except in circumstances prescribed by the regulations, a pension plan shall provide, with respect to surplus accrued after December 31, 1996, for

(a) the treatment of surplus during continuation of the plan; and

(b) the allocation of surplus on termination of the plan.

(2) A pension plan shall provide, with respect to surplus accrued after December 31, 1996, for the allocation of surplus on termination of the plan to

(a) the members, former members or their surviving spouses or estates;

(b) the employer; or

(c) a combination of the persons referred to in paragraph (a) or paragraphs (a) and (b).

Fifty percent rule

39. (1) In the case of a defined benefit plan where a member is required to make contributions and

(a) the member retires;

(b) the member ceases membership in the plan;

(c) the member dies; or

(d) the plan is terminated, in whole or in part,

not more than 50% of the commuted value of the pension benefit with respect to the member's membership in the plan after December 31, 1996 may be provided by the member's contributions with interest.

(2) Where the value of a former member's contributions with interest exceeds 50% of the commuted value of the pension benefit with respect to his or her membership in the plan after December 31, 1996 the excess value shall, at the option of the former member, be

(a) returned to the former member;

(b) transferred to a retirement savings arrangement;

(c) transferred to another pension plan, if and to the extent the other plan permits the transfer;

(d) transferred to an insurance company to purchase a life annuity; or

(e) used to increase the amount of the pension, if and to the extent the plan permits the increase.

(3) For the purpose of subsections (1) and (2), the following shall not be taken in account:

(a) contributions made with respect to a defined contribution provision of a defined benefit plan and a part of the commuted value of the pension benefit attributable to those contributions; and

(b) the commuted value of a portion of a member or former member's pension benefit attributable to past service pension benefits purchased voluntarily by the member or former member.

Portability

40. (1) A pension plan shall provide that where a member of a pension plan, before becoming eligible to retire under sections 28 and 29, ceases membership in the plan or dies and is entitled to a deferred pension benefit, the member, or the surviving spouse of the member or former member, is entitled

(a) in the case of the member, to

(i) transfer the commuted value of the member's pension benefit to another pension plan, if the other plan permits and the administrator of the other plan agrees to accept the payment,

(ii) transfer the commuted value of the member's pension benefit to a class or type of retirement savings arrangement as approved by the superintendent, or

(iii) use the commuted value of the member's pension benefit to purchase a deferred life annuity of the kind approved by the superintendent for the member or the surviving spouse; and

(b) in the case of the surviving spouse, to transfer or use the commuted value of the surviving spouse's pension benefit in the manner provided for the member's pension benefit under subparagraph (i), (ii) or (iii),

if the member or the surviving spouse makes an election as prescribed by the regulations.

(2) Where a member of a pension plan, after becoming eligible to retire under sections 28 and 29 but before beginning payment of a pension benefit, ceases membership in the plan or dies, the plan may permit the member, or the surviving spouse of the member or former member,

(a) in the case of the member, to

(i) transfer the commuted value of the member's pension benefit to another pension plan, if the other plan permits and the administrator of the other plan agrees to accept the payment,

(ii) transfer the commuted value of the member's pension benefit to a class or type of retirement savings arrangement as approved by the superintendent, or

(iii) use the commuted value of the member's pension benefit to purchase a life annuity of the kind approved by the superintendent for the member or the surviving spouse; and

(b) in the case of the surviving spouse, to transfer or use the commuted value of the surviving spouse's pension benefit in the manner provided for the member's pension benefit under subparagraph (i), (ii) or (iii).

(3) For the purpose of a transfer or purchase under subsection (1) or (2), a contract to establish a retirement savings arrangement or an insurance contract to provide a life annuity shall be in the form required by the superintendent.

(4) The administrator of a pension plan shall transfer money out of the pension fund under this section except where the transfer is not permitted under this Act.

(5) Where a member ceases to be a member of a pension plan and becomes a member of another plan that requires the same employer to make contributions on the member's behalf, the member's membership in the first plan shall continue until the member ceases membership in the second plan.

(6) Where a member or former member of a multi-employer pension plan terminates employment with an employer but continues to be a member of the same multi-employer pension plan, the member is not considered to have ceased membership until the member is no longer employed with an employer in the multi-employer pension plan.

Pre-retirement death benefit

41. (1) Where a member or former member of a pension plan, who under section 43 is entitled to a deferred pension benefit attributable to the member's or former member's membership in the plan after December 31, 1996 dies, the surviving spouse of the member or former member, or, where there is no surviving spouse, the estate of the member or former member, is entitled to receive the commuted value of the deferred pension benefit calculated, as of the day of death, as if the member or former member had not died but had ceased membership in the plan on that day, in accordance with section 43.

(2) Notwithstanding subsection (1), a pension plan may provide an immediate pension benefit equal to or greater than that provided in subsection (1) to the surviving spouse of a member or former member.

(3) A surviving spouse of a member or former member may transfer the commuted value of a deferred pension benefit in accordance with subsections 40(1) and (2).

(4) A member or former member of a pension plan who is entitled to a deferred pension benefit under section 43 and who dies before the start of payment of the pension benefit, but after becoming eligible for retirement in accordance with section 29, shall be considered

(a) to have retired for the purpose of the survivor benefit; and

(b) to have been entitled to the joint and survivor pension benefit payable under section 45 without regard to subsection 45(4) in respect of the deferred pension benefit.

CPP, QPP and OAS reduction

42. (1) A pension plan may provide that a pension benefit or a deferred pension benefit may be reduced by reason of payments under the Canada Pension Plan, the Quebec Pension Plan, or under the Old Age Security Act (Canada), but a reduction shall not exceed the reduction calculated in accordance with the formula approved by the superintendent.

(2) The reduction referred to in subsection (1) shall be applied before any other adjustment under the plan.

(3) The amount of the reduction referred to in subsection (1) shall not be increased by reason of an increase in payments under the Canada Pension Plan, the Quebec Pension Plan or the Old Age Security Act (Canada) after the date on which the member ceases membership in the plan or dies.

(4) The value of a bridging benefit, for receipt of which a member or former member has satisfied all eligibility requirements of a pension plan, shall not be reduced by reason only of the eligibility of the member or former member to receive a payment before he or she attains age 65 under the Canada Pension Plan, Quebec Pension Plan or Old Age Security Act (Canada).

(5) Where a pension plan provides for variation of a pension benefit because of a benefit payable under the Canada Pension Plan or the Quebec Pension Plan without specifically stating the age at which the variation is to occur, the plan is considered to provide that the variation is to occur when the recipient of the pension benefit attains age 65.

(6) A pension plan shall not permit the reduction of a pension or deferred pension benefit based on a person's entitlement under the Old Age Security Act (Canada) in respect of a pension benefit accrued after December 31, 1996.

Vesting

43. (1) A pension plan shall provide that a member of the plan who has been a member for a continuous period of 2 years is entitled, on retirement or cessation of membership in the plan,

(a) to a deferred pension benefit equal to the pension benefit provided under the terms of the plan in respect of membership in the plan after December 31, 1996; and

(b) to any other pension or other benefit to which the member is entitled under the terms of the plan in respect of membership in the plan after December 31, 1996.

(2) A pension plan shall provide that a member of a plan who has been employed by the employer for a continuous period of 10 years, or has been a member of the plan for a continuous period of 10 years, whichever occurs first, and who has attained 45 years of age, is entitled, on retirement or cessation of membership in the plan, to a deferred pension benefit equal to the pension benefit provided

(a) under the terms of the plan in respect of membership in the plan from January 1, 1985 and ending on December 31, 1996; and

(b) by virtue of any amendments to the plan made from January 1, 1985 and ending on December 31, 1996 in respect of membership in the plan up to December 31, 1996.

Required terms

44. (1) A pension plan shall provide

(a) that no pension benefit provided under the plan is capable of being assigned, charged, anticipated or given as security, or confers on a member or former member, the personal representative or dependant of the member or former member, or other person, a right or interest that is capable of being assigned, charged, anticipated or given as security;

(b) that, except in the case of the unexpired period of a guaranteed annuity and subsection 41(1), no benefit described in section 43 is capable of being surrendered or commuted during the lifetime of the member or former member, or that person's spouse, or confers on a member or former member, the personal representative or dependant of the member or former member, or other person, a right or interest that is capable of being surrendered or commuted during the lifetime of the member or former member or the member's or former member's spouse; and

(c) a member or former member who is entitled to a benefit under section 43, or would be so entitled if the member reached normal retirement or ceased membership in the plan, is not permitted to withdraw any part of the member's or former member's contributions to the plan, other than additional voluntary contributions, in respect of a period after December 31, 1984.

(2) Notwithstanding subsection (1), a pension plan may provide

(a) that a member or former member who is entitled to a deferred pension benefit under section 43 may, before the start of payment, elect or be authorized to receive a payment or series of payments by reason of a disability prescribed by the regulations, partly or wholly instead of the deferred pension benefit described in section 43;

(b) that, where the annual pension benefit payable is less than 4% of the YMPE for the calendar year in which a member ceased membership in the plan or dies, the member or former member or the member's spouse or the former member's spouse or surviving spouse is entitled to receive a lump sum payment instead of the deferred pension benefit described in section 43; and

(c) that, where the commuted value of a deferred pension benefit is less than 10% of the YMPE for the calendar year in which a member ceased membership in the plan or dies, the member or former member or the member's spouse or the former member's spouse or surviving spouse is entitled to receive a lump sum payment instead of the deferred pension benefit described in section 43.

Joint and survivor pensions

45. (1) A pension benefit that begins being paid after December 31, 1996 to a member or former member of a pension plan who has a spouse at the time the pension benefit begins to be paid, shall be in the form of a joint and survivor benefit, subject to Part VI.

(2) A pension benefit described in subsection (1) may be reduced by reason of death of the member or former member, to an amount not less than 60% of the amount of the pension benefit that would have been payable in respect of the member or former member had the death not occurred.

(3) Where the commuted value of the pension benefit described in subsection (1) is not less than the commuted value of the normal form of the pension benefit, the initial amount of that pension benefit may be adjusted.

(4) Notwithstanding subsections (1), (2) and (3), a pension plan shall provide that in respect of a pension benefit that begins to be paid after December 31, 1996, a member or former member may elect to receive

(a) the normal form of the pension benefit; or

(b) the pension benefit in another form provided under the plan,

but if the member or former member has a spouse, the joint and survivor pension required by subsection (1) may be waived by both the member or former member and his or her spouse.

(5) An election or a waiver referred to in subsection (4) shall be made as required by the superintendent and delivered to the administrator.

Remarriage of spouse

46. A pension benefit payable to the former spouse of a member or former member or to the surviving spouse of a deceased member or former member shall not terminate by reason only of the remarriage of either the former spouse or surviving spouse.

PART VI
MARRIAGE BREAKDOWN

Pension entitlement on marriage breakdown

47. (1) In this Part

(a) "date of marriage breakdown" means the date of separation or other date specified in a court order or separation agreement as the date on which matrimonial property of the member is to be valued or divided;

(b) "limited member" means a person designated as a limited member of a pension plan under subsection 49(1);

(c) "matured pension" means a pension benefit being paid to a member and includes a disability pension benefit when the member attains the age at which he or she is entitled to receive an unreduced pension;

(d) "member" includes a former member;

(e) "proportionate share" means a fraction of the commuted value of a pension benefit calculated as prescribed by the regulations or a court order;

(f) "separate pension" means the proportionate share of a member's pension benefit which is established in a separate account in favour of a spouse;

(g) "spouse" means a spouse, as defined in the Family Law Act, of a member and includes a former spouse of a member; and

(h) "transfer" means, when referring to the payment of a proportionate share of the commuted value of a pension benefit to the credit of a spouse, a transfer made in accordance with section 40 and the regulations.

(2) Notwithstanding another provision of this Act, an administrator of a pension plan shall, on the breakdown of marriage of a member, divide a pension or other benefit under the plan to which the member is entitled, in accordance with this Part.

(3) A pension or other benefit shall be divided

(a) where a court has made an order for the division of matrimonial property under the Family Law Act or a similar order of a court outside the province enforceable in the province, in accordance with the court order; or

(b) where the member or his or her spouse have entered into a separation agreement within the meaning of the Family Law Act to divide their matrimonial property, in accordance with the separation agreement.

(4) The value of a pension or other benefit to be divided shall be calculated by the administrator of a pension plan as prescribed by the regulations, but shall not reduce that member's commuted value to less than 50% of the member's commuted value before the division.

(5) If a member of a pension plan is not entitled to a deferred pension benefit under section 43 at the date of marriage breakdown, the portion of the member's contributions and interest to be credited to the spouse shall be paid, in cash, from the plan to the spouse.

(6) If a spouse is entitled to a share of a pre-retirement death benefit or a post-retirement death benefit paid to another person, the recipient holds the share in trust for the spouse.

Types of pension plans

48. (1) In the case of a defined contribution plan, where a pension benefit is to be divided and the member is not eligible to receive a pension benefit under the plan, a spouse is entitled to have a proportionate share of the pension benefit transferred from the plan to the credit of the spouse.

(2) In the case of a defined benefit plan, where a pension benefit is to be divided, a spouse is entitled

(a) where the member is not eligible to receive a pension without reduction, to have, until the member is eligible to receive a pension without reduction, a proportionate share of the pension benefit transferred from the plan to the credit of the spouse; or

(b) where the member is eligible to receive a pension without reduction, to receive, from the time the member is eligible to receive a pension without reduction until the time the member retires, a separate pension from the plan as prescribed by the regulations.

(3) In the case of a pension plan containing defined contribution and defined benefit provisions, where the pension benefit is to be divided and the member is not entitled to receive a pension without reduction

(a) to the extent that the plan is based on principles applicable to a defined contribution plan, the pension benefit shall be divided in accordance with this Part and the regulations as if the plan were a defined contribution plan; and

(b) the remainder of the pension benefit shall be divided in accordance with this Part and the regulations as if the plan were a defined benefit plan.

(4) Notwithstanding the nature of a pension plan, where a pension is to be divided and has matured, a spouse is entitled to receive, as a limited member, a proportionate share of benefits paid as a separate pension under the plan until the earlier of the

(a) death of the limited member; or

(b) termination of the pension under the plan.

Limited membership

49. (1) If a pension benefit to be divided is an unmatured pension in a defined benefit plan or a matured pension in a pension plan and a spouse elects to receive a separate pension from the plan under this Part, the spouse shall be designated as a limited member of the plan.

(2) A limited member of a pension plan has the following rights:

(a) to receive from the plan a separate pension or a proportionate share of benefits paid under the plan as determined under this Part and the regulations;

(b) to receive from the plan a proportionate share, calculated as prescribed by the regulations, of a pre-retirement death benefit or a post-retirement death benefit until the limited member ceases to be a limited member or is entitled to receive a separate pension under the plan;

(c) to enforce rights against the plan and recover damages for losses as a result of a breach of a duty owed by the plan to the limited member;

(d) except as modified by this Part and the regulations, all rights of a member under this Act; and

(e) those additional rights prescribed by the regulations.

(3) A separate pension of a limited member of a pension plan shall be based on the normal form of a pension under the plan but shall not be a joint and survivor pension.

(4) An administrator of a pension plan shall make separate source deductions required under the Income Tax Act (Canada) for the spouse's share and the member's share of a pension benefit.

(5) If the proportionate share of the spouse is transferred from a pension plan to the credit of the spouse under this Part, the spouse ceases to be a limited member of the plan.

(6) Notwithstanding paragraph (2)(b) and subsection (5), a spouse who is entitled to a post-retirement death benefit is entitled to the whole of that benefit.

(7) Where a limited member of a pension plan dies before the member and at the time of death is not entitled to receive a separate pension under the plan, the plan shall transfer the proportionate share of the commuted value of the member's pension to the estate of the limited member.

(8) Where a limited member of a pension plan dies and at the time of death is receiving a separate pension under the plan, the estate of the limited member is entitled to receive any post-retirement death benefit payable under the plan in respect of the separate pension.

Adjustment of member's pension benefit

50. Where an amount has been transferred from a pension plan or used to provide a separate pension to a spouse in accordance with an order or agreement under subsection 47(3),

(a) a member's pension benefit, or the interest of a person claiming an interest in a pension benefit through the member, shall be adjusted as prescribed by the regulations;

(b) the spouse has no further claim or entitlement to a further benefit under the plan; and

(c) neither the administrator nor the plan is liable to a person by reason of having complied with an order or agreement mentioned in subsection 47(3) in accordance with this Part.

Considered election

51. Where a spouse fails to direct the administrator of a pension plan as to how a pension benefit is to be divided as prescribed by the regulations, the spouse is considered to have elected to receive a separate pension under the plan.

Revocation of election

52. (1) Where a spouse elects to take a separate pension from a pension plan under paragraph 48(2)(b), the spouse may, before the commencement of a separate pension, revoke the election and elect to transfer the proportionate share from the plan.

(2) The value of the spouse's share of the pension benefit available for re-election under subsection (1) is the commuted value calculated at the date of re-election.

Clarification or objection

53. (1) An administrator of a pension plan shall not effect a division of a pension benefit where he or she

(a) reasonably believes that a court order or a separation agreement relating to division of a pension benefit is incomplete or does not provide clear or sufficient direction to administer a division of the pension benefit; or

(b) has notice of a member's objection to a division of a pension benefit as prescribed by the regulations.

(2) Where subsection (1) applies, the administrator shall, as prescribed by the regulations, but not later than 30 days after the receipt of a member's objection, give written notice of the inability to comply to the member and spouse and

(a) require that the matter be determined by a court or otherwise determined between the member and his or her spouse, as evidenced by filing with the administrator a court order or a written agreement between the member and his or her spouse; or

(b) apply to the court for directions.

(3) Where the administrator applies to the court under subsection (2), the court may make or vary an order as it considers appropriate in the circumstances but no order as to costs shall be made against the administrator of the plan.

Regulations prescribe procedure to divide pension

54. When dividing a pension benefit or satisfying a spouse's entitlement to a pension benefit the

(a) procedures to be followed by a spouse, member and administrator of a pension plan;

(b) information to be provided to a spouse or limited member by an administrator of a pension plan;

(c) form, content and manner of giving a notice or waiver under this Part; and

(d) maximum fee that may be charged by an administrator of a plan

shall be as prescribed in the regulations.

Application

55. (1) Subsection 47(3) applies to a court order or separation agreement mentioned in that subsection, regardless of the date of the order or separation agreement.

(2) A spouse who before January 1, 1997 was entitled to receive from a member a proportionate share of benefits paid under a matured pension may, as prescribed by the regulations, require an administrator of a pension plan to effect the division of the pension benefit in accordance with subsection 48(4).

(3) This Part applies to a life annuity purchased by an administrator of a pension plan upon the retirement of a member and held by a third party insurance company.

(4) If a member's pension benefit to be divided under this Act includes or consists of an annuity that is payable under an insurance contract that prohibits the annuity from being commuted and if the commuted value of the pension benefit under the plan, if credited to, paid to or otherwise delivered to the credit of the spouse, would be insufficient to fulfil the spouse's entitlement on a division under this Act, the annuity is a class of pension plan that is exempt from the application of this Part and, if ordered by the court or agreed to in writing by the member and the spouse, the actual pension benefit shall be divided in accordance with the applicable court order or separation agreement and the portion of the pension payable to the spouse shall be subject to the terms and conditions of the annuity contract.

(5) Subsection (4) does not apply to a life annuity described in that subsection purchased after December 31, 1996.

Family Law Act prevails

56. If a provision of this Part conflicts with a provision of the Family Law Act, the Family Law Act shall prevail.

PART VII
SURPLUS AND TRANSFER OF PLAN ASSETS

Surplus payment

57. (1) No part of surplus may be paid to the employer unless

(a) the payment is permitted by the regulations; and

(b) the superintendent consents in writing to the payment.

(2) Where an employer requests payment of the surplus, the superintendent shall consider criteria prescribed by the regulations and provide written reasons for his or her decision to the employer.

(3) The superintendent may attach conditions to the consent required under subsection (1).

Transfer of plan assets

58. A transfer of assets of a pension plan shall not be made from the pension fund of the plan to the pension fund of another pension plan unless

(a) the contract or trust agreement of the receiving fundholder is filed with the superintendent and the receiving plan is registered under this Act; and

(b) the superintendent has approved the transfer in writing.

PART VIII
TERMINATION, WIND-UP AND DISPOSAL OF BUSINESS

Plan termination

59. (1) The superintendent may declare the whole or part of a pension plan terminated where

(a) there is a suspension or cessation of employer contributions in respect of all or part of the plan membership, except where surplus is used to meet funding requirements;

(b) the employer has discontinued or is in the process of discontinuing all of its business operation or a part in which a substantial portion of its employees who are members of the plan are employed;

(c) the employer is bankrupt within the meaning of the Bankruptcy Act (Canada);

(d) the superintendent is of the opinion that the plan has failed to meet the requirements prescribed by the regulations for solvency in respect of funding; or

(e) all or part of the business or assets of a predecessor employer's business are sold, assigned or otherwise disposed of and the successor employer who acquired the business or assets does not provide a pension plan for the members of the predecessor employer's plan who become employees of the successor employer.

(2) A declaration made under subsection (1) shall declare the whole or part of a pension plan to be terminated as of a date determined by the superintendent.

Plan termination requirements

60. (1) An employer, or, in the case of a multi-employer pension plan, the administrator, who intends to terminate the whole or part of a pension plan shall notify in writing the superintendent and any other person or body who is affected of that intention at least 60 days before the date of the intended termination.

(2) On the termination of the whole or part of a pension plan, the administrator of the plan shall file with the superintendent

(a) a report required by the superintendent, within 6 months after the effective date of termination; and

(b) all outstanding annual information returns up to the effective date of the termination, within 3 months after that date.

(3) The wind-up of a pension plan shall commence immediately after the termination of the plan unless the superintendent gives written approval to postpone the wind-up.

Termination payments

61. On termination of a pension plan, the employer shall pay into the pension fund all amounts that would otherwise have been required to be paid to meet the requirements prescribed by the regulations for solvency, including

(a) an amount equal to the aggregate of

(i) the normal actuarial cost, and

(ii) special payments prescribed by the regulations,

that have accrued to the date of termination; and

(b) all

(i) amounts deducted by the employer from members' remuneration, and

(ii) other amounts due to the pension fund from the employer

that have not been remitted to the pension fund at the date of termination.

Distribution of plan assets

62. (1) On termination or wind-up of a pension plan, no part of the assets of the plan shall revert to the benefit of the employer until the superintendent's consent has been obtained and provision has been made for the payment to members or former members, the spouse, beneficiary or estate of a member or former member of a pension benefit, accrued or payable, in respect of membership to the date of termination or wind-up and, for that purpose, those pension benefits shall be treated as if the members or former members were entitled to a deferred pension benefit.

(2) Where a notice of intention to terminate a pension plan has been given, the assets of the plan may not be applied toward the provision of a pension benefit until the superintendent has approved the report required by subsection 60(2), but the administrator of the plan may continue to pay a pension benefit which began before the notice of intention to terminate and any other payment approved by the superintendent.

(3) On termination of a pension plan all assets of the plan that are to be used for the purpose of providing a pension benefit or another benefit continue to be subject to this Act.

(4) Where a pension plan is terminated in part, the rights of members affected shall not be less than what they would have been if the whole of the plan had been terminated on the same date as the partial termination.

Appointment of administrator

63. Where the whole of a pension plan has been terminated and the superintendent is of the opinion that no action or insufficient action has been taken to wind up the plan, the superintendent may appoint an administrator of the plan and direct the administrator to distribute the assets of the plan as prescribed by the regulations and may direct that expenses incurred in connection with that distribution be paid out of the pension fund, and the administrator shall immediately comply with that direction.

Notice of entitlement

64. On termination of a pension plan, in whole or in part, the administrator shall provide a notice of entitlement required by the superintendent.

Failure to elect

65. Each person in receipt of a notice of entitlement under section 64 shall elect from the options given, within the time required by the superintendent, or shall be considered to have elected, to transfer the money to a class or type of retirement savings arrangement approved by the superintendent in accordance with paragraph 40(1)(b) or (2)(b).

Reduction of pension benefits

66. Where a pension plan is terminated in whole or in part and the assets of the pension fund are not sufficient to pay all pension and other benefits on the wind-up of the plan, the pension and other benefits shall be reduced as prescribed by the regulations.

Successor employer

67. (1) Where

(a) employees of a predecessor employer become employees of a successor employer; and

(b) the successor employer does not assume responsibility for accrued pension benefits of the predecessor employer's pension plan,

the employees continue to be entitled to the pension benefits provided under the predecessor employer's plan in respect of the period of membership in that plan, without further accrual.

(2) The superintendent may terminate the pension plan of a predecessor employer, in whole or in part, where

(a) employees of the predecessor employer become employees of the successor employer; and

(b) the successor employer does not assume responsibility for accrued pension benefits of the predecessor employer's plan.

(3) An employee's employment with both a predecessor employer and a successor employer shall be taken into account for the purposes of determining

(a) the length of employment with respect to an eligibility condition of the successor employer's plan;

(b) whether a member is entitled to a deferred pension benefit under a pension plan of either employer; or

(c) whether the benefits under a pension plan of either employer meets the requirements of section 43.

(4) A change in employment from a predecessor employer to a successor employer does not constitute a break in employment for the purpose of this Act.

(5) No transfer of assets shall be made from the pension fund of a predecessor employer's pension plan to the pension fund of a successor employer's pension plan without the prior written consent of the superintendent.

PART IX
RECONSIDERATION AND APPEALS

Reconsideration

68. (1) The superintendent shall by registered mail give written notice to an administrator of a pension plan and other affected persons of a decision under paragraphs 6(2)(c) and (e) and section 21 and that notice shall contain the reasons upon which the decision is based.

(2) Within 60 days after the mailing of the notification, the administrator may serve on the superintendent a notice of administrator's objection which shall state the reasons for the objection and include a request for the superintendent to reconsider the decision.

(3) On receipt of a notice of administrator's objection, the superintendent shall reconsider the decision and may vary or confirm the decision and shall, by registered mail, give notice to the administrator of the results of the reconsideration.

Application to court

69. Where a provision of this Act is contravened, the superintendent may apply to the Trial Division for an order prohibiting the continuation or repetition of the contravention or the carrying on of any activity specified.

Service of documents

70. (1) A notice or other document under this Act is sufficiently given, served or delivered if delivered personally or sent by registered mail addressed to the person to whom it is to be given, served or delivered at the person's last known address.

(2) A notice or other document sent by registered mail in accordance with subsection (1) shall be considered to be given, served or delivered on the seventh day after the day of mailing, unless the person to whom it is sent establishes that, acting in good faith, the person did not receive the notice or other document, or did not receive it until a later date, through absence, accident, illness or other cause beyond that person's control.

Appeal

71. (1) Where an administrator of a pension plan has served a notice of administrator's objection under subsection 68(2), the administrator may,

(a) within 60 days after the superintendent has confirmed the action taken as described in subsection 68(3); or

(b) where the superintendent does not confirm or vary the action as provided for in paragraph (a), within a further 60 days,

appeal to the Trial Division for an order described in subsection (2).

(2) The court may dispose of an appeal under subsection (1)

(a) by dismissing it and ordering the appellant to effect the compliance of a pension plan with requirements for registration;

(b) by allowing it and ordering the superintendent to register a pension plan or to reinstate the registration of a pension plan, and to issue a certificate of registration in that respect; or

(c) as the court otherwise considers appropriate.

(3) An order made as described in paragraph (2)(b) may include conditions imposed upon the appellant that are conditions precedent to the registration or reinstatement of registration of a pension plan.

PART X
OFFENCES AND PUNISHMENT

Failure to comply

72. Failure to comply with a requirement or a directive of the superintendent constitutes an offence.

No action lies

73. No action lies against a person for withholding, deducting, paying or crediting a sum of money in compliance with this Act.

Staff liability

74. The superintendent or the staff of the superintendent are not personally liable for an action done in good faith in the execution or intended execution of a duty or authority under this Act or for alleged neglect or default in the execution in good faith of a duty or authority.

Corporate liability

75. (1) Notwithstanding subsection 76(2), where a corporation is convicted of an offence contrary to this Act, the maximum penalty that may be imposed is $25,000.

(2) Where a corporation is convicted of an offence contrary to this Act,

(a) each director of the corporation; and

(b) each officer, employee or agent of the corporation who in whole or in part acquiesced in or was responsible for the conduct of that part of the business of the corporation that gave rise to the offence,

is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for up to 6 months or both.

(3) Where a person is convicted of an offence related to the failure to submit or make payment to a pension fund or to an insurance company or an administrator of a pension plan, the court that convicts the person may, in addition to a fine or imprisonment imposed, assess the amount not submitted or not paid and order the person to pay the amount to the pension fund, insurance company or administrator.

(4) A statement by the superintendent as to the date when the subject matter of the proceeding first came to the knowledge of the superintendent is admissible in evidence in or in respect of the proceeding and is, in the absence of evidence to the contrary, proof of the facts stated.

Contravention of the Act

76. (1) Every person who contravenes this Act or the regulations is guilty of an offence.

(2) Every person who is guilty of an offence contrary to this Act or the regulations is liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for 6 months or to both.

Limitation

77. Notwithstanding the Provincial Offences Act, no proceeding under this Act or the regulations shall be commenced more than 2 years after the date when the subject-matter arose.

PART XI
REGULATIONS, REPEAL AND
COMMENCEMENT

Regulations

78. (1) The Lieutenant-Governor may make regulations

(a) with respect to a matter referred to in this Act as being prescribed by the regulations;

(b) respecting application of this Act to public sector pension plans;

(c) exempting an employee or pension plan, a class of employee or pension plan or a benefit or kind of benefit under a pension plan from the application of this Act or any provision of it;

(d) delegating a matter referred to in this Act to the superintendent;

(e) defining a word or expression used but not defined in this Act; and

(f) generally for carrying into effect the provisions of this Act.

(2) A regulation may adopt by reference, in whole or in part, with those changes as the Lieutenant-Governor in Council considers necessary, any code, formula, standard and procedure.

(3) Regulations may be made with retroactive effect.

Transition

79. (1) An administrator of a pension plan in effect after December 31, 1996 shall comply with this Act.

(2) Notwithstanding subsection (1), an administrator of a pension plan shall amend the plan to conform with this Act and file a copy of the amendment with the superintendent by January 1, 1999.

(3) Notwithstanding subsection (1), where a pension plan is governed by one or more collective agreements entered into before January 1, 1997, and where the terms of the plan conflict with the provisions of this Act, the terms of the plan shall prevail until the earlier of the expiry of the collective agreement or January 1, 2000.

(4) The superintendent shall register a pension plan that is governed by a collective agreement or an arbitration award made under the Labour Relations Act that contains a provision contrary to this Act if the plan would have been eligible for registration under the former Act.

(5) Every pension plan that was registered and continued to qualify for registration under the former Act is considered to be registered under this Act after December 31, 1996.

RSN1990 cP-4 Rep.

80. (1) The Pension Benefits Act is repealed.

(2) Notwithstanding subsection (1), the former Act continues to apply to persons who have before January 1, 1997 ceased membership in or retired from a pension plan.

Commencement

81. This Act comes into force on January 1, 1997.

©Earl G. Tucker, Queen's Printer