2012 BILL 44

	44


First Session, 47th General Assembly 61 Elizabeth II, 2012
BILL 44
AN ACT TO REVISE AND AMEND THE LAW RESPECTING PENSIONS FOR THE MEMBERS OF THE ROYAL NEWFOUNDLAND CONSTABULARY, CORRECTIONAL OFFICERS AND CERTAIN FIREFIGHTERS OF THE ST. JOHN'S REGIONAL FIRE DEPARTMENT
Received and Read the First Time...................................................................................................
Second Reading.................................................................................................................................
Committee............................................................................................................................................
Third Reading.....................................................................................................................................
Royal Assent......................................................................................................................................
HONOURABLE THOMAS W. MARSHALL, Q.C. Minister of Finance and President of Treasury Board
Ordered to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would repeal and replace the Uniformed Services Pensions Act, 1991 to modernize and clarify the law respecting the Uniformed Services Pension Plan.

The Bill would

· provide for consistency with certain provisions of the Pensions Benefits Act, 1997 and the Income Tax Act (Canada);

· allow a terminating employee who is eligible for a deferred pension to elect to receive the commuted value of the pension as determined at the date of election;

· establish time limits with respect to the purchasing of periods of leave without pay at favourable rates;

· allow a terminating vested employee who has reached 55 years of age to elect to take an actuarially reduced pension; and

· allow the pensions for survivors of certain plan members to be increased to 60% of the deceased member's pension, retroactive to the date of death.

A BILL

AN ACT TO REVISE AND AMEND THE LAW RESPECTING PENSIONS FOR THE MEMBERS OF THE ROYAL NEWFOUNDLAND CONSTABULARY, CORRECTIONAL OFFICERS AND CERTAIN FIREFIGHTERS OF THE ST. JOHN'S REGIONAL FIRE DEPARTMENT

Analysis

1. Short title

2. Definitions

3. Application

4. Pension plan

5. Where pension prohibited

6. Contributions by employees

7. Employers' contributions

8. Payments

9. Repayment of contributions

10. Election upon termination with 5 years service

11. Purchase of prior service

12. Purchase by designated employees

13. Purchase of service with related plans

14. Leave of absence without pay

15. Purchase of service

16. Transfer from the Government Money Purchase Pension Plan

17. Transfer

18. Right to pension

19. Retirement

20. Early retirement

21. Medical retirement

22. Calculation of pension

23. CPP reduction factor

24. Employee under former Act

25. Deferred pension

26. Re-employment

27. Survivor benefit

28. Death of employee

29. Estate provision

30. Pension shall not be assigned or attached

31. Error or misrepresentation

32. Rectification

33. Committee

34. Marriage breakdown

35. Appeal

36. Procedure

37. Conflict of Acts

38. Existing plan protected

39. Income Tax Act (Canada)

40. Ministerial directive

41. Consequential Amdt.

42. SNL1991 c19 Rep.

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, 2012.

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;

(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;

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

(e) "employee" means

(i) every member of the Royal Newfoundland Constabulary as defined in the Royal Newfoundland Constabulary Act, 1992, 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;

(f) "former Act" means the Uniformed Services Pensions Act, 1991;

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

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

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

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

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

(l) "pension fund" means the Province of Newfoundland and Labrador Pooled Pension Fund established under the Pensions Funding Act;

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

(n) "pensionable salary" means the average of the best 3 years salary before retirement;

(o) "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;

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

(q) "prescribed" means, except where the context otherwise requires, prescribed by a directive of the minister;

(r) "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;

(s) "salary" means the normal remuneration paid at an annual, monthly, biweekly, 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;

(t) "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;

(u) "supplementary account" means the Uniformed Services Supplementary Plan Account established under subsection 4(2);

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

(w) "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 19;

(x) "year" means 12 months; and

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

Application

3. (1) This Act applies to all employees.

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

(a) is in receipt of a pension under this Act or a pension under the former Act or pension provisions under predecessor legislation;

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

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

Pension plan

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

(2) The Uniformed Services Supplementary Plan Account is established in the Consolidated Revenue Fund.

Where pension prohibited

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

Contributions by employees

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

(2) There shall be deducted from the salary of every employee

(a) 9.95% of the portion of the employees salary that is the employees basic exemption under the Canada Pension Plan;

(b) 8.15% of the portion of the employees salary that is in excess of the basic exemption referred to in paragraph (a) up to and including the YMPE;

(d) a greater or lesser amount as prescribed.

(3) Where contributions have been deducted from the salary of an employee in excess of those set out in subsection (2), those excess contributions shall be returned to the employee.

(4) All deductions made under subsection (2) shall be deposited each month to the pension fund.

(5) Where the amount of contributions made under subsection (2) exceeds the amount of the annual deductible contributions to a registered plan permitted under the Income Tax Act (Canada), the amount of the excess, as determined at the end of the calendar year in which the contributions are made, shall be paid from the pension fund to the supplementary account no later than the last day of February in the immediately following calendar year.

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(e)(i) and (ii), an amount equal to the employee contributions made under subsection 6(2);

(b) with respect to employees referred to in subparagraph 2(e)(iii), an amount which, when added to the contributions paid by the City of St Johns, equals the employee contributions made under subsection 6(2); and

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

(3) Where the contribution of the government of the province was reduced under this Act, between the period April 1, 1993 and March 31, 1996, 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.

(4) Where the amount of government contributions under subsection (1) or employer contributions under subsection (2) exceeds the amount of the annual deductible contributions to a registered plan permitted under the Income Tax Act (Canada), the amount of the excess, as determined at the end of the calendar year in which the contributions are made, shall be paid from the pension fund to the supplementary account no later than the last day of February in the immediately following calendar year.

Payments

8. (1) A pension and other related money payments under the pension plan shall be paid according to the following:

(a) a pension calculated under subsection 22(1) relating to service accrued before February 1, 1991 shall be paid from the pension fund;

(b) a pension calculated under subsection 22(1) relating to service accrued after January 31, 1991, not exceeding the maximum annual allowable registered pension permitted under the Income Tax Act (Canada) shall be paid from the pension fund; and

(c) a portion of a pension calculated under subsection 22(1) relating to service accrued on and after February 1, 1991 that exceeds the maximum annual allowable registered pension permitted under the Income Tax Act (Canada) shall be paid from the supplementary account.

(2) Benefits payable under sections 27, 28 and 29 and a return of contributions, commuted value or other lump sum payment in respect of an entitlement under this Act shall be paid from the pension fund and the supplementary account on the same basis and in the same proportion as a pension payment under subsection (1).

(3) A pension shall be paid as the minister directs, in equal and periodic payments, and shall cease at the end of the month in which the death of the pensioner occurs.

(4) A survivor benefit shall be paid as the minister directs, in equal and periodic payments, and shall cease at the end of the month in which the death of the survivor occurs or the entitlement of the children ends.

Repayment of contributions

9. (1) 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 prescribed rate.

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

Election upon termination with 5 years service

10. (1) A terminating employee with at least 5 years of pensionable service who is ineligible for an immediate, unreduced pension, 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 25; or

(c) a return of the contributions made by that employee, with interest at a prescribed rate, 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 the terminating employee's 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 to receive a deferred pension may revoke that election and elect a transfer under paragraph (1)(a), calculated at the date of election.

(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 prescribed rate.

(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 25.

(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 25.

Purchase of prior service

11. (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 termination benefit 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 an employee to whom subsection (1) applies transferred his or her termination benefit to a registered retirement savings plan, a deferred profit sharing plan or a registered pension plan, payment by that employee for the purchase of prior pensionable service shall include a transfer of the funds remaining in the registered retirement savings plan, the deferred profit sharing plan or the registered pension plan from the amount originally transferred.

(3) 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 has not received a termination benefit later becomes an employee, that person shall be credited with all pensionable service that accrued immediately before the employees termination.

(4) 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.

(5) For the purpose of subsections (1) and (4), periods of pensionable service may be credited where that service qualifies as a period of eligible service under the Income Tax Act (Canada).

Purchase by designated employees

12. (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, provided that service qualifies as eligible service under the Income Tax Act (Canada).

(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.

Purchase of service with related plans

13. (1) Where an employee was formerly covered under a pension plan established or continued under

(a) the Teachers' Pensions Act;

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

(d) the Public Service Pensions Act, 1991; or

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

and received a termination benefit under that pension plan, the employee shall be credited with the pensionable service recognized by those pension plans that he or she may elect to purchase upon paying contributions that may be prescribed.

(2) For the purpose of subsection (1), periods of pensionable service may be credited where that service qualifies as a period of eligible service under the Income Tax Act (Canada).

Leave of absence without pay

14. (1) An employee who is on authorized leave of absence without pay may have that period credited as pensionable service upon payment of the contributions required under section 6.

(2) The employer who granted the leave of absence shall pay the matching contribution.

(3) The contributions made under subsection (1) and (2) and the calculation of a pension under section 22 shall be based on the salary that the employee was earning immediately before the commencement of his or her authorized leave of absence without pay provided that the employee elects to purchase the relative period of leave within the 90 days after returning from that authorized leave or before the date of termination from the employer, whichever is earlier.

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

(5) Notwithstanding subsection (2), authorized leave of absence without pay may be purchased after the expiration of the 90 days at a cost that may be prescribed and no matching contributions are required by the government of the province or an employer.

(6) Upon the commencement of this Act, employees with a period of leave of absence without pay who did not purchase that service before the commencement of this Act shall have 120 days from the commencement of this section to purchase those periods as pensionable service in accordance with subsections (1) and (3).

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

(8) Pensionable service credited under this section shall be limited to a cumulative maximum of 5 years in respect of periods of unpaid leave of absence or periods of reduced pay plus an additional 3 years in respect of periods of parenting and shall be subject to the limits on prescribed compensation set out in the regulations under the Income Tax Act (Canada).

Purchase of service

15. (1) All sums payable under sections 11, 12, 13 and 14 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 13 and 14 where the person is receiving a pension in relation to that service.

Transfer from the Government Money Purchase Pension Plan

16. 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.

Transfer

17. (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) applies where the employee

(a) has terminated his or her membership in the exporting pension plan;

(b) has not received a termination benefit from the exporting pension plan; and

(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.

Right to pension

18. An employee shall, subject to this Act, receive a pension as a matter of right.

Retirement

19. (1) An employee who has accrued at least 5 years of pensionable service shall be retired under the pension plan

(a) when he or she makes an election under subsection (2) 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.

(2) An employee 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.

Early retirement

20. (1) An employee who has reached at least 55 years of age and has been credited with not less than 5 years of pensionable service may elect to retire and receive an actuarially reduced pension.

(2) For the purpose of this section, an actuarially reduced pension refers to a pension that has been reduced by an amount determined by the actuary that reflects the fact that the pension is being paid from a date that is earlier than the date the employee, based on his or her service, would be eligible for an unreduced pension.

Medical retirement

21. (1) An 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 from a date to be determined by the minister.

(2) Notwithstanding subsection (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.

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

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

(5) Where an 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 may be cancelled by the minister.

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

Calculation of pension

22. (1) A pension awarded to an 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 before retirement.

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

(3) Where the pension calculated under subsection (1) exceeds the maximum under the Income Tax Act (Canada), the excess shall be paid from the supplementary account.

(4) 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 subsection (1) respecting the calculation of an award of pension shall be adjusted to reduce the employee's or former employee's award of pension proportionately.

CPP reduction factor

23. (1) A pension awarded under section 22 shall be reduced by 6/10 of 1% of the employee's pensionable salary multiplied by the number of years or fractions of years of pensionable service credited after March 31, 1967, not exceeding 35 years.

(2) For the purpose of subsection (1), an employee's pensionable salary may not exceed the average of the employee's YMPE 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.

(3) 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.

Employee under former Act

24. 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 under the former Act.

Deferred pension

25. (1) An employee who has been credited with at least 5 years of pensionable service who terminates his or her employment may elect to

(a) defer payment of a pension until the employee reaches normal retirement age; or

(b) where he or she qualifies, receive an actuarially reduced pension in accordance with section 20.

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

(3) Where an employee makes an election under paragraph (1)(a) 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 first day of the month immediately following the date of termination of employment.

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

(5) 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 termination benefit may, before becoming eligible to receive an unreduced pension under this Act, make the same election as a terminating employee under section 10.

Re-employment

26. (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.

(2) A pensioner who has retired under the pension plan under section 21 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.

(3) Where a pensioner accepts an offer of re-employment under this section, his or her pension shall be cancelled, and subject to the making of contributions as required under this Act, the period of subsequent employment shall, in calculating a pension under subsequent retirement, be added to the years of pensionable service accumulated before his or her first retirement and the pension shall be calculated in accordance with section 22 as if the award of the former pension had not occurred.

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

Survivor benefit

27. (1) A surviving 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 23, 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, employee or deferred pensioner dies.

(4) Where the surviving 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 a survivor benefit became payable after January 1, 1997, the survivor benefit shall be equal to 60% of the pension entitlement of the pensioner, deferred pensioner or employee.

(7) Subsection (6) is considered to have come into force on January 1, 1997.

Death of employee

28. (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 27, 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 27, the commuted value of the employee's pension, calculated as of the date of death, shall be paid to the estate of the employee.

Estate provision

29. Where the total pension or survivor benefit paid under this Act at the date of the pensioner's death or the last survivor benefit has been paid and the amount paid does not exceed the deceased employee's contributions together with the prescribed interest calculated to the date of retirement, the difference in the amount of contributions together with interest and the total pension or survivor benefits shall be paid to the person whose benefit ceased or to that person's estate.

Pension shall not be assigned or attached

30. A pension payable under the 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 in accordance with the Pension Benefits Act, 1997.

Error or misrepresentation

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

Rectification

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

Committee

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

Marriage breakdown

34. (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.

Appeal

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

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

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

Procedure

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

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

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

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

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

Conflict of Acts

37. (1) Where this Act conflicts with the Royal Newfoundland Constabulary Act, 1992, sections 340.1 to 340.24 of the City of St. John's Act, 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, 1997 that Act shall prevail and the Lieutenant-Governor in Council may make regulations to further comply with that Act.

Existing plan protected

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

Income Tax Act (Canada)

39. 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

Ministerial directive

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

Consequential Amdt.

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

(a) the Uniformed Services Pensions Act, 2012 and the Royal Newfoundland Constabulary Act, 1992;

(2) Where in an Act or regulation there is a reference to The Uniformed Services Pensions Act or the Uniformed Services Pensions Act, 1991 or a part or section of those Acts, the reference shall be considered to be a reference to the equivalent Part or section contained in the Uniformed Services Pensions Act, 2012.

SNL1991 c19 Rep.

42. The Uniformed Services Pensions Act, 1991 is repealed.