SNL1991 CHAPTER 19 - UNIFORMED SERVICES PENSIONS ACT, 1991 - Point in Time

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.

1991 c19 s1

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;

(b.1) "cohabiting partner",

(i) in relation to an employee, pensioner or deferred pensioner who has a spouse, means a person who is not the spouse who has cohabited continuously with the employee, pensioner or deferred pensioner in a conjugal relationship for not less than 3 years,

(ii) in relation to an employee, pensioner or deferred pensioner who does not have a spouse, means a person who has cohabited continuously with the employee, pensioner or deferred pensioner, in a conjugal relationship for not less than one year,

and is cohabiting or has cohabited with the employee, pensioner or deferred pensioner within the preceding year;

(b.2) "commuted value" means commuted value as defined in the Pension Benefits Act, 1997 ;

(i) every member of the Royal Newfoundland Constabulary as defined in the Royal Newfoundland Constabulary Act, and

(ii) 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 groups of persons excluded by a directive of the minister, and includes

(iii) every member of the St. John's Regional Fire Department as defined in the City of St. John's Act who, on December 31, 1991 was a member of the pension plan;

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

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

(f) "month" means a calender 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 and Labrador 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, except where the context otherwise requires, prescribed by a directive of the minister;

(o.1) "principal beneficiary" means the spouse of an employee, pensioner or deferred pensioner, or where the employee, pensioner or deferred pensioner has a cohabiting partner, his or her cohabiting partner;

(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 Regional Fire Department who, on December 31, 1991 was a member of the pension plan;

(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 who

(i) is married to the employee, pensioner or deferred pensioner,

(ii) is married to the employee, pensioner or deferred pensioner by a marriage that is voidable and has not been voided by a judgment of nullity, or

(iii) has gone through a form of a marriage with the employee, pensioner or deferred pensioner, in good faith, that is void and is cohabiting or has cohabited with the employee, pensioner or deferred pensioner within the preceding year;

(w) "survivor benefit" means a benefit payable to the principal beneficiary or child of the employee, pensioner or deferred pensioner;

(w.1) "terminating employee" means an employee who terminates his or her employment or whose employment is terminated for reasons other than disability and who is not entitled to immediately receive a pension under section 15, 16 or 17;

(x) "year" means 12 months; and

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

1991 c19 s2; 1992 c46 s1; 1997 c13 s74; 2001 c22 s37; 2001 c34 s1; 2001 cN-3.1 s2; 2006 c40 s21

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 a directive of the minister;

(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;

(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.

1991 c19 s3; 1997 c13 s74

Pension plan

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

1991 c19 s4; 1997 c13 s74

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.

1991 c19 s5

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 YMPE; and

(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 YMPE; and

(4) There may be prescribed 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) [Rep. by 2007 c7 s10]

(7) Where contributions have been deducted from the salary of an employee in excess of those 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.

1991 c19 s6; 1997 c13 s74; 2001 c34 s2; 2007 c7 s10

Employers' contributions

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

(a) with respect to employees referred to in subparagraphs 2(c)(i) and (ii), an amount equal to the employee contributions made under subsections 6(2), (3) and (4) less benefits payable under subsection 8(1.1);

(b) with respect to employees referred to in subparagraph 2(c)(iii), an amount which, when added to the contributions paid by the City of St. John's, equals the employee contributions made under subsections 6(2), (3) and (4) less benefits payable under subsection 8(1.1); and

(2) The City of St. John's shall pay into the pension fund, with respect to employees referred to in subparagraph 2(c)(iii), an amount equal to the employee contributions made under subsections 6(2), (3) and (4), to a maximum of 8% of the employee's salary.

(3) Notwithstanding paragraph (1)(a), the government may reduce the contribution under subsection (1), either for all employees or for a group of employees, by an amount that the Lieutenant-Governor in Council may prescribe, but the amount of the reduction shall not exceed 4.5% of the salaries of employees of the government of the province to whom the reduction applies.

(3.1) Notwithstanding paragraph (1)(a), the government of the province may reduce the contribution under subsection (1), either for all employees or for a group of employees, by an amount that the Lieutenant-Governor in Council may prescribe, but the amount of the reduction shall not exceed 1.05% of the salaries of employees of the government of the province to whom the reduction applies. - [Effective April 1, 1994 - March 31, 1996]

(4) Where the contribution of the government of the province is reduced under this Act, an employee or a former employee may elect to contribute an amount, in addition to the amount which he or she is or was required to contribute under section 6, to be calculated in accordance with the terms and conditions which the Lieutenant-Governor in Council may prescribe by regulation, which would place the employee or former employee in the position he or she would have been in respecting an award of pension if the government of the province had not reduced its contribution. – [In force April 1, 1993]

[NOTE: Subsections (3) & (4) in force April 1, 1993 to March 31, 1994 only.]

1991 c19 s7; 1992 c46 s2; 1993 c18 s4; 1995 c24 s4; 1997 c13 s74

Payments

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

(1.1) A pension payable from the pension fund shall not exceed the benefit payable under subsection 19(6).

(1.2) A portion of a pension paid which exceeds the amount payable under subsection (1.1) shall be paid out of the Consolidated Revenue 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.

1991 c19 s8; 1992 c46 s3

Repayment of contributions

9. (1) A terminating employee with less than 5 years of pensionable service may elect to receive a refund of contributions made by that employee, with interest at a rate prescribed.

(1.1) Where an employee with less than 5 years of pensionable service dies, the contributions made by that employee, with interest at a rate prescribed, shall be paid to the estate of the employee.

(2) Where money is payable to the personal representative of an employee under subsection (1.1) 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.

1991 c19 s9; 2001 c22 s38; 2001 c34 s3

Election upon termination with 5 years service

9.1 (1) A terminating employee with at least 5 years of pensionable service may elect, within 180 days after termination,

(a) a transfer of the commuted value of the pension entitlement of the employee, in accordance with paragraph 40(1)(a) of the Pension Benefits Act, 1997 ;

(b) a deferred pension in accordance with section 22; or

(c) a return of the contributions made by that employee, with interest at a rate prescribed, for periods of pensionable service credited

(i) before January 1, 1987 , and

(ii) before January 1, 1997 where the employee has less than 10 years of pensionable service and is less than 45 years of age,

and a transfer of the commuted value of his or her pension entitlement based on the remaining periods of pensionable service, under paragraph (a).

(2) In default of an election under subsection (1) the employee is considered to have elected to receive a deferred pension.

(3) An employee who elects, or is considered to have elected under subsection (2), to receive a deferred pension may only revoke that election to transfer his or her contributions to a pension plan included in the Schedule to the Portability of Pensions Act .

(4) A transfer under paragraph (1)(a) which is not to another pension plan or deferred life annuity shall, regardless of when the pensionable service was credited, be to a retirement arrangement approved for this purpose by the Superintendent of Pensions.

(5) The transfer under paragraph (1)(a) shall not be less than the contributions made by the employee, with interest at a rate prescribed.

(6) Where the transfer under paragraph (1)(a) would be greater than the maximum amount permitted under the Income Tax Act ( Canada ), the excess shall be paid to the employee.

(7) Where the annual pension payable is less than 4% of the YMPE for the calendar year in which the employment is terminated, the employee or former employee is entitled to receive a lump sum payment instead of the deferred pension under section 22.

(8) Where the commuted value of a deferred pension benefit is less than 10% of the YMPE for the calendar year in which employment was terminated, the employee or former employee is entitled to receive a lump sum payment instead of the deferred pension under section 22.

2001 c34 s4

Purchase of prior service

10. (1) Where a person, who was covered under a pension plan established under this Act, or a predecessor of this Act, ceased to be employed and received a payment or transfer on termination and later becomes an employee, that person may be credited with the prior pensionable service that he or she may elect to purchase in accordance with the terms and conditions that may be prescribed.

(2) Where a person, who was covered under a pension plan established under this Act, or a predecessor of this Act, ceased to be employed and had not received a payment or transfer on termination and later becomes an employee, that person may be credited with all pensionable service that accrued immediately before the employees termination.

(3) Where an employee

(a) continued in employment after reaching normal retirement age before May 26, 2007 ;

(b) continues to be an employee on and after May 26, 2007 ; and

he or she may be credited with the pensionable service in respect of the period of service beyond normal retirement age that he or she may elect to purchase in accordance with prescribed terms and conditions.

2001 c34 s5; 2007 c7 s11

Purchase by designated employees

10.1 (1) Where an employee was formerly employed by a company owned by the government of the province, the employee may elect to purchase as pensionable service the period of full time service worked with that company while that company was owned by government.

(2) Purchase of pensionable service under subsection (1) shall be at full actuarial cost determined at the date of purchase.

(3) For the purpose of subsection (1) included companies and periods of service eligible to be purchased shall be prescribed.

1997 c34 s3

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;

(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.

1991 c19 s11

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.

1991 c19 s12

Purchase of service

13. (1) All sums payable under sections 10, 10.1, 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.

1991 c19 s13; 1997 c34 s4

Transfer

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

2001 c34 s6

Transfer

13.2 (1) A person who, before becoming an employee, made contributions to a pension plan that is registered as a pension plan under the Income Tax Act (Canada), other than a pension plan to which the Portability of Pensions Act applies, may, upon becoming an employee, elect to have that pensionable service transferred directly from the exporting pension plan to the pension plan in accordance with this section.

(2) Subsection (1) shall apply only where the employee has terminated his or her membership in the exporting pension plan and has not received a termination benefit from the exporting pension plan.

(3) An election made under subsection (1) is irrevocable.

(4) The pensionable service to be credited under the pension plan shall be determined with reference to the actuarial cost of the pensionable service at the date of the election under subsection (1) as calculated by the pension plans actuary.

(5) Upon an election under subsection (1), the exporting pension plan shall transfer to the pension plan a lump-sum amount that is the lesser of

(a) the actuarial cost of the pensionable service at the date of election; and

(b) the value of the termination benefit to which the person is entitled.

(6) Where the lump-sum amount transferred under subsection (5) is insufficient to finance the actuarial cost of the full period of pensionable service that has been transferred under subsection (1), the employee may elect

(a) to pay the amount required to make up the deficiency; or

(b) to be credited with the proportionate period of pensionable service that can be financed by the lump-sum amount.

(7) The amount of a deficiency shall be paid in the prescribed manner.

(8) For the purpose of this section "actuarial cost" means the cost of the service to be credited as determined at the date of the election and calculated with reference to the assumptions from the most recent actuarial valuation for funding purposes.

2005 c11 s3

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.

1991 c19 s14

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 retired under the pension plan

(a) when he or makes an election under section 17 or terminates employment upon reaching normal retirement age; or

(b) where he or she continues in employment after reaching normal retirement age, when he or she terminates employment or reaches the age at which a pension benefit is required to begin under the Income Tax Act ( Canada ), whichever is the earlier.

2007 c7 s12

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.

1991 c19 s16

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.

1991 c19 s17

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.

(1.1) Notwithstanding subsection 18(1), where, during the period an employee is on sick leave,

(a) the employee's employment is terminated by reason of redundancy;

(b) the employee has not used up all his or her sick leave benefits; and

the employee shall be retired under the pension plan from the date the employee's employment is terminated.

(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.

1991 c19 s18; 1995 c23 s2

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) [Rep. by 2007 c7 s13]

(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;

(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 theIncome Tax Act (Canada).

(7) Notwithstanding subsection 8(1.1) and subsection (6), a pension benefit calculated under this section in relation to pensionable service accrued prior to the coming into force of this Act is not subject to the maximum allowable benefit payable as provided for in the Income Tax Act (Canada).

(8) Notwithstanding subsections (1) and (3), where the contribution to the pension plan of the government of the province is reduced under this Act and an employee or a former employee affected by the reduction does not make a compensating contribution under this Act, the formula set out in subsections (1) and (3) respecting the calculation of an award of pension shall be adjusted to reduce the employee's or former employee's award of pension proportionately.

[NOTE: Subsection (8) in force April 1, 1993 to March 31, 1994 only.]

1991 c19 s19; 1992 c46 s4; 1993 c18 s4; 1995 c24 s4; 2007 c7 s13

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) The reduction under subsection (1) shall occur on the first of the month following the month in which the employee reaches the age of 65 years or commences receipt of a pension, whichever is the later.

1991 c19 s20; 2001 c35 s3; 2007 c7 s14

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.

1991 c19 s21

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) [Rep. by 2001 c34 s7]

(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.

(6) A former employee with at least 5 years pensionable service whose employment terminated before this Act comes into force and who did not receive a refund of contributions may, before becoming eligible to receive a pension under this Act, make the same election as a terminating employee under section 9.1.

1991 c19 s22; 2001 c34 s7

E Re-employment

23. (1) A pensioner who has retired under the pension plan upon termination of employment but has not reached the age at which a pension benefit is required to begin under the Income Tax Act (Canada) may be re-employed in a pensionable position.

(1.1) A pensioner who has retired under the pension plan under section 18 but who has not reached the age at which a pension benefit is required to begin under the Income Tax Act (Canada) may, upon proof of good health and with 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.

1991 c19 s23; 2007 c7 s15

Survivor benefit

24. (1) A principal beneficiary of

(a) a pensioner;

(b) a deferred pensioner; or

is entitled on the death of the pensioner, deferred pensioner or employee to a survivor benefit equal to 60% of the pension entitlement of the pensioner, deferred pensioner or employee.

(2) Where the pension entitlement of the pensioner, employee or deferred pensioner on his or her death has not been reduced under subsection 20(4), the reduction shall be applied to the pension entitlement on the first day of the month following the month in which he or she would have reached 65 years and the survivor benefit shall be adjusted accordingly.

(3) The survivor benefit shall be paid to the surviving principal beneficiary for life and shall commence on the first day of the month following the month in which the pensioner or employee dies.

(4) Where the principal beneficiary dies while in receipt of a survivor benefit, the survivor benefit shall be paid to or for the benefit of the surviving children of the pensioner, deferred pensioner or employee while they are under the age of 18 years, or under the age of 24 years while they are in full-time attendance at a recognized school or post-secondary institution.

(5) Where a pensioner referred to in subsection (1) dies leaving no surviving principal beneficiary, the survivor benefit shall be paid to or for the benefit of his or her surviving children while they are under the age of 18 years, or under the age of 24 years while they are in full-time attendance at a recognized school or post-secondary institution.

(6) Where for any reason a survivor benefit ceases to be payable and no one remains to whom a benefit is payable, the amount by which the employee's contributions, together with interest to the date the benefit commenced at a rate prescribed by the minister, exceed all benefits received from the registered plan, shall be paid to the person whose benefit ceased or to that person's estate.

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

2001 c34 s8; 2001 c35 s4; 2008 c23 s15

Death of employee

24.1 (1) Where an employee with at least 5 years of pensionable service or deferred pensioner dies before receiving a pension and a survivor benefit is payable under section 24, the surviving principal beneficiary may elect

(a) to receive the survivor benefit; or

(b) to receive in a lump sum

(i) the commuted value of the survivor benefit, or

(ii) the commuted value of the employees pension,

whichever is greater.

(2) Where an employee with at least 5 years of pensionable service or a deferred pensioner dies before receiving a pension and there is no principal beneficiary entitled to a survivor benefit under section 24, the commuted value of the employee's pension, calculated as of the date of death, shall be paid to the estate of the employee and subsections 9(2), (3) and (4) apply to the transfer.

2001 c34 s8; 2008 c23 s16

Transitional

24.2 (1) A child who is receiving a survivor benefit when this section comes into force who is a child of a deceased employee or deferred pensioner who died without a principal beneficiary after December 12, 2001 is entitled to

(a) continue to receive the survivor benefit while he or she is under the age of 18 years, or under the age of 24 years while in full-time attendance at a recognized school or post-secondary institution; or

(b) be paid the commuted value of his or her entitlement determined at the date of the death of the deceased employee or deferred pensioner, less any payments already received by the child at the date of election.

(2) Where the total survivor benefit paid under subsection (1) is less than the deceased employee's or deferred pensioner's commuted value at the date of death, the difference in the commuted value and the total survivor benefit paid shall be paid to the estate of the deceased employee or deferred pensioner.

(3) Notwithstanding the entitlements referred to in subsection (1), where a deceased employee or deferred pensioner had more than one child, the children shall elect jointly and there shall be only one election for the payment of the entitlement.

(4) Unless an election is made under subsection (1), a survivor benefit shall be continued as if continuation under paragraph (1)(a) had been elected.

2008 c23 s17

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.

1991 c19 s25

Attachment

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

1991 c19 s26

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.

1991 c19 s27

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.

1991 c19 s28

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.

1991 c19 s29

Marriage breakdown

30. (1) Where

(a) a court has made an order for the division of matrimonial property under the Family Law Act or a similar order has been made by a court outside the province; or

(b) an employee has entered into a separation agreement within the meaning of the Family Law Act to divide matrimonial property,

a right under this Act shall be divided in accordance with the court order or separation agreement and Part VI of the Pension Benefits Act, 1997 applies with the necessary changes.

(2) Calculations under this Act respecting maximum contributions and years of service shall be done as if there had been no division under this section.

2001 c34 s9

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.

1991 c19 s31

Benefits

32. (1) 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;

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

(2) Notwithstanding subsection (1), where the contribution to the pension plan of the government of the province is reduced under this Act and an employee or a former employee affected by the reduction does not make a compensating contribution under this Act, the formula set out in subsections 19(1) and (3) respecting the calculation of an award of pension shall be adjusted to reduce the employee's or former employee's award of pension proportionately.

[NOTE: Subsection (2) in force April 1, 1993 to March 31, 1994 only.]

1991 c19 s32; 1993 c18 s4; 1995 c24 s4

Rep. by 1996 cR-10.1 s75

33. [Rep. by 1996 cR-10.1 s75]

1996 cR-10.1 s75

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.

1991 c19 s34

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.

1991 c19 s35

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.

1991 c19 s36

Existing plan protected

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

1991 c19 s37

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

1991 c19 s38

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.

1991 c19 s39

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.

1991 c19 s40

Ministerial directive

40.1 The minister may issue directives for the purpose of this Act.

1997 c13 s74

1982 c.49 Rep.

41. The Uniformed Services Pensions Act is repealed.

1991 c19 s41

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.

1991 c19 s42