Revised Statutes of Newfoundland 1990 Chapter P-4

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

(b) "employee" means an individual who performs service in the province or in a designated province for a continuous period of not less than 6 months under a contract of service or of apprenticeship, and includes an officer or director of a corporation or of an unincorporated organization and an agent acting for his or her principal on a substantially full-time basis;

(c) "employer" means, in relation to an employee, the person, partnership, firm, association, institution or other unincorporated organization or corporation, wherever incorporated, carrying on business or established in the province, from whom the employee receives his or her remuneration, and includes the successors or assigns of the employer;

(d) "life annuity" means an annuity that continues for the duration of the life of the annuitant, whether or not it is continued to some other person and "deferred life annuity" means a life annuity that begins at retirement age under a pension plan, but in any event not later than age 70;

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

(f) "pension benefit" means the total annual, monthly or other periodic amounts to which an employee will become entitled upon retirement or to which another person is entitled by virtue of his or her death after retirement under a pension plan;

(g) "pension benefit credit" means the value at a particular time of the pension benefits and other benefits provided under the pension plan to which an employee has become entitled;

(h) "pension plan" means a superannuation or pension fund or plan organized and administered to provide a pension benefit for employees and includes

(i) a unit benefit plan under which pension benefits are determined with reference to remuneration of an employee for each year of service or for a selected number of years of service,

(ii) a money purchase plan under which pension benefits are determined at the retirement of an employee with reference to the accumulated amount of the total contributions paid by or for the credit of the employee,

(iii) a flat benefit plan under which the pension benefits are expressed either as a fixed amount in respect of each year of employment or as a fixed periodic amount, and

(iv) a deferred profit sharing pension plan other than a profit sharing plan as defined in sections 144 and 147 of the Income Tax Act (Canada);

(i) "qualification date" means

(i) in respect of employment in the province, a date to be determined by order of the Lieutenant-Governor in Council, and

(ii) in respect of employment in a designated province, the date upon which, under the law of that province, a pension plan is required to maintain its qualification for registration;

(j) "registered pension plan" means a pension plan that is registered with and certified by the superintendent as a plan organized and administered in accordance with this Act;

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

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

(m) "supplemental pension plan" includes a pension plan established for employees whose membership in another pension plan is a condition precedent to membership in the supplemental pension plan; and

(n) "voluntary additional contribution" means an additional contribution by an employee to or under a pension plan except a contribution the payment of which, under the terms of the plan, imposes upon the employer an obligation to make a concurrent additional contribution to or under the plan.

1983 c32 s2

3. A person is considered to be employed in the province in which the establishment of his or her employer to which the person reports for work is situated, and, where the employee is not required to report for work at an establishment, the employee is considered to be employed in the province in which the establishment of his or her employer from which his or her remuneration is paid is situated.

1983 c32 s3

4. In the event of a conflict between this Act and another Act, this Act prevails.

1983 c32 s4

5. (1) The Lieutenant-Governor in Council may appoint an officer within the Department of Finance to be the Superintendent of Pensions who shall hold office during pleasure.

(2) Those officers and employees that are necessary to enable the superintendent to perform his or her duties shall be appointed in the manner provided by law.

1983 c32 s5

6. (1) The superintendent may, subject to the approval of the Lieutenant-Governor in Council, engage the services of the counsel, accountants and other experts to advise him or her in respect of matters that the Lieutenant-Governor considers necessary for the efficient carrying out of his or her duties and functions under this Act.

(2) The compensation paid to those persons mentioned in subsection (1) shall be determined by the Lieutenant-Governor in Council and shall be paid out of the Consolidated Revenue Fund.

1983 c32 s6

7. (1) The superintendent shall

(a) promote the establishment, extension and improvement of pension plans throughout the province;

(b) accept for registration pension plans required to be registered or filed for registration with the superintendent under this Act and reject a pension plan that does not qualify for registration;

(c) administer and enforce this Act and cancel pension plan certificates of registration issued in respect of pension plans that

(i) fail to meet the tests for solvency prescribed by the regulations, or

(ii) otherwise stop qualifying for registration under this Act;

(d) conduct surveys and research programs and obtain statistics;

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

(f) perform other functions and discharge other duties that are assigned to him or her by the Lieutenant-Governor in Council or the minister.

(2) The superintendent or an authorized representative may, at a reasonable time, where it is reasonably necessary to determine compliance with this Act and the regulations,

(a) inspect the books, files, documents and other records respecting a pension plan kept by an employer, an insurer, a trustee of the pension plan or other person; and

(b) require an employer, insurer, trustee of a pension plan or other person to provide, in a form acceptable to the superintendent, the information that the superintendent considers necessary.

1983 c32 s7; 1985 c11 s56

8. (1) Where the superintendent believes on reasonable grounds that a person has contravened this Act or the regulations, the superintendent or an authorized representative may with a warrant issued under subsection (2) at a reasonable time enter upon the business premises and may investigate, inquire into and examine the affairs of the person in respect of whom the investigation is being made and into books, files, documents and other records in relation to that person.

(2) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is on business premises anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act or the regulations may issue a warrant authorizing the superintendent or an authorized representative named in the warrant to enter and search those premises and to make those inquiries and copies of books, files, documents and other records that are considered necessary, subject to the conditions that may be specified in the warrant.

(3) The owner or person in charge of the premises referred to in this section and persons found there shall give the superintendent or an authorized representative reasonable help to enable the superintendent or an authorized representative to carry out his or her duties and functions under this section and shall provide the information that the superintendent or an authorized representative may reasonably require.

1985 c11 s56

9. The superintendent may, subject to the approval of the Lieutenant-Governor in Council,

(a) enter into agreements with the authorized representatives of a designated province or the Government of Canada to provide for the reciprocal registration, audit and inspection of pension plans and for the establishment of a Canadian association of pension commissions; and

(b) authorize a Canadian association of pension commissions to carry out those duties on behalf of the superintendent that the superintendent may require.

1983 c32 s8

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

1983 c32 s9

11. (1) The superintendent shall in each year submit to the minister a report respecting the affairs of his or her office covering the transactions and operations of the immediately preceding financial year and the report shall contain the information that the minister may by order prescribe.

(2) A report submitted under subsection (1) shall immediately be laid by the minister before the Legislature if then in session or, if it is not in session, within 15 days after the beginning of the next session.

(3) The superintendent shall provide the minister with the information and other reports that the minister may require.

1983 c32 s10

12. An action does not lie against a person for withholding, deducting, paying or crediting a sum of money in compliance or intended compliance with this Act.

1983 c32 s11

13. Where this Act requires an amount to be deducted, withheld, paid or credited, an agreement by the person on whom that obligation is imposed not to deduct, withhold, pay or credit the amount is void.

1983 c32 s12

14. The Lieutenant-Governor in Council may establish or designate an agency for the purposes, among others, of receiving, holding and disbursing pension benefit credits under this Act.

1983 c32 s13

15. (1) In this section

(a) "employee" means an employee or former employee who is a member of a pension plan; and

(b) "employer" includes the trustee or insurer under a pension plan.

(2) Where under the terms of a pension plan an employee has designated a person to receive a benefit payable under the plan in the event of the employee's death,

(a) the employer's liability to provide the benefit is discharged upon payment to that person of the amount of the benefit; and

(b) that person may upon the death of the employee enforce payment of the benefit, but the employer is entitled to set up a defence that he or she could have set up against the employee or the employee's personal representatives.

(3) An employee may alter or revoke a designation made under a pension plan, but the alteration or revocation may be made only in the manner set out in the plan.

(4) This section does not apply to a designation of a beneficiary to which the Life Insurance Act applies.

1983 c32 s14

16. (1) An employer of employees in the province covered by a pension plan established before January 1, 1985 shall, unless under the terms of the plan the employer is not required to make contributions to or under the plan,

(a) file a copy of the pension plan with the superintendent for registration as soon as the superintendent requires; and

(b) while the plan remains in force maintain its qualifications for registration as required by this Act or the regulations.

(2) An employer who establishes a pension plan for employees in the province after December 31, 1984 shall, unless under the terms of the plan the employer is not required to make contributions to or under the plan,

(a) file a copy of the pension plan with the superintendent for registration within 60 days after the establishment of the plan; and

(b) while the plan is in force, maintain its qualifications for registration as required by this Act or the regulations.

(3) Notwithstanding subsections (1) and (2), a pension plan required to be registered shall be considered to include a supplemental pension plan established by the employer under the terms of which the employer is not required to make contributions.

(4) Beginning on January 1, 1985, an employer of employees in the province covered by a pension plan shall file with the superintendent annually an information return as prescribed by the regulations in respect of pension plans administered by or on behalf of the employer or the employees.

1983 c32 s15

17. The superintendent shall accept for registration and issue his or her certificate in respect of each pension plan filed for registration under section 16 that, in the superintendent's opinion, is a pension plan organized and administered under this Act.

1983 c32 s16

18. (1) A pension plan filed for registration in accordance with section 16 shall contractually provide that

(a) a member of the plan who has been in the service of the employer for a continuous period of 10 years, or has been a member of the plan for that period, whichever first occurs, and who reaches the age of 45 years is entitled, upon termination of his or her employment before the member reaches retirement age or upon termination of his or her membership in the plan before the member reaches retirement age, to a deferred life annuity beginning at the normal retirement age equal to the pension benefits, except pension benefits provided by voluntary additional contributions, provided in respect of service as an employee in the province or in a designated province

(i) under the terms of the plan in respect of service on or after the qualification date,

(ii) by an amendment to the terms of the plan made on or after the qualification date, or

(iii) by the creation of a new pension plan on or after the qualification date;

(b) both the pension benefits provided under the terms of the plan and the deferred life annuity prescribed by this section are not capable of assignment or alienation and do not confer upon an employee, personal representative or dependant, or other person, a right or interest in the pension benefits or the deferred life annuity capable of being assigned or alienated; and

(c) upon termination of the member's employment or upon termination of membership in the plan, a member of the plan who is entitled to a deferred life annuity under paragraph (a) is not entitled to withdraw a part of his or her contributions to or under the plan, except voluntary additional contributions, in respect of service in the province or in a designated province on or after the qualification date, and the contributions shall be applied under the terms of the plan toward the provision of the deferred life annuity required to be provided to the employee under paragraph (a).

(2) Notwithstanding the provisions of a pension plan,

(a) the deferred life annuity prescribed by subsection (1) is not capable of surrender or commutation during the lifetime of the employee and does not confer upon an employee, personal representative or dependant, or other person, a right or interest in the deferred annuity capable of being surrendered or commuted during the lifetime of the employee;

(b) the pension benefits provided under the terms of the plan in respect of service after the qualification date are not, on or after the date of retirement of an employee, capable of surrender or commutation during the employee's lifetime and do not confer upon an employee, personal representative or dependant, or other person, a right or interest in the pension benefits capable of being surrendered or commuted during the lifetime of the employee; and

(c) an employee shall not withdraw a part of his or her contributions, excluding voluntary additional contributions, paid under the plan in respect of service in the province or in a designated province on or after the qualification date, other than after

(i) the termination of his or her employment, or

(ii) the termination or winding up of the plan,

before reaching retirement age and in circumstances where he or she is not entitled to a deferred life annuity under subsection (1).

(3) Notwithstanding subsections (1) and (2), a pension plan may provide for

(a) vesting or locking in at an earlier age than 45 years or upon service or membership in the plan for less than 10 years, or for both; and

(b) payment to an employee of an amount equal to the commuted value of the deferred life annuity or pension benefit to which the employee is entitled if the amount payable to the employee at normal retirement age is less than $10 a month payable during his or her lifetime.

(4) Notwithstanding subsections (1) and (2), where a pension plan so provides, an employee may receive in partial discharge of his or her rights under the plan as a lump sum, upon or after termination of employment or membership in the plan before the employee's reaching normal retirement age as defined by the plan, an amount that in total does not exceed 25% of the commuted value of the deferred life annuity prescribed by subsection (1).

(5) Where a pension plan so provides, a person who is entitled to a deferred life annuity under subsection (1) may, before the start of payment of the life annuity, elect to receive

(a) a deferred life annuity the amount of which is reduced or increased because of early or deferred retirement, by provision for the payment of an optional annuity to a survivor or to the estate of the employee, or by variation of the terms of payment of the annuity to a person after the employee's death; and

(b) a payment or series of payments because of a mental or physical disability as prescribed by the regulations,

partly or wholly instead of the deferred life annuity described by subsection (1).

(6) Where a pension plan so provides, an employee may, on or before reaching normal retirement age as defined by the plan, elect to receive an annuity the amount of which is varied by reference to benefits payable under the Old Age Security Act (Canada) or under another pension plan administered by the Government of Canada or by the government of a province of Canada.

(7) Upon the termination or winding up of a pension plan, contributions by an employer and an employee made after the qualification date in respect of the deferred life annuity prescribed by subsection (1) shall be applied under the terms of the plan

(a) in the case of a former employee, toward the provision of the deferred life annuity to which the employee was entitled at the date of termination of his or her employment; and

(b) in the case of an employee, toward the provision of the deferred life annuity to which the employee would be entitled had the employee stopped being an employee upon the date of termination or winding up of the plan.

(8) Notwithstanding subsections (1) and (2) and notwithstanding a provision of a pension plan, upon the termination or winding up of a pension plan where

(a) the benefits arising from the deferred life annuities prescribed in subsection (1) include additional pension benefits provided by an amendment to the terms of the plan made after the qualification date, in respect of service before the amendment or creation; and

(b) the funding of additional pension benefits, as required by the regulations, has not been completed,

the amount of the additional pension benefits may be reduced in accordance with the regulations.

(9) A pension plan filed for registration in accordance with section 16 shall provide for contributions and benefits calculated in accordance with a formula prescribed by the regulations.

(10) Notwithstanding a provision of a pension plan, where

(a) an employee is entitled upon termination of employment or upon termination of his or her membership in a pension plan to a deferred or immediate pension benefit; and

(b) on the date of termination of employment or termination of his or her membership in a pension plan, the employee's pension benefit credit is less than the value of his or her contributions made to the plan towards the pension benefit,

the employee's pension benefit credit shall be increased to an amount not less than the value of the employee's contributions.

1983 c32 s17

19. (1) A pension plan filed for registration in accordance with section 16 shall contractually provide for

(a) funding, in accordance with the tests for solvency prescribed by the regulations, that is adequate to provide for payment of pension benefits, deferred life annuities and other benefits required to be paid under the terms of the plan; and

(b) investment of pension fund money in the securities and loans prescribed by the regulations.

(2) Upon the termination or winding up of a pension plan filed for registration as required by section 16, the employer is liable to pay amounts that would otherwise have been required to be paid to meet the tests for solvency prescribed by the regulations up to the date of the termination or winding up to the insurer, administrator or trustee of the pension plan.

1983 c32 s18

20. (1) Where, in the opinion of the superintendent, an employer who employed or employs a number of employees who were or are members of a pension plan established or operated by the employer has discontinued or is about to discontinue part or all of his or her business operations, the superintendent may declare the pension plan wound up, or considered to have been wound up, in whole or in part for the purposes of this Act on the date that may be specified by the superintendent.

(2) Where the superintendent has made a declaration under subsection (1), he or she shall immediately send a copy of the declaration by registered mail to the employer named in the declaration.

(3) Where the employer objects to the declaration made by the superintendent under subsection (1), he or she may within 60 days from the day of mailing of the notification of the superintendent under subsection (2), serve on the superintendent, by registered mail, a notice of objection in duplicate in the prescribed form setting out the reasons for the objection and the relevant facts.

1983 c32 s19

21. (1) Where an employer who is bound by or is a party to a pension plan sells, assigns or otherwise disposes of all or part of his or her business or undertaking or all or part of the assets of the business or undertaking, and

(a) an employee of the employer becomes an employee of the person acquiring the business, undertaking or assets, in this section called the successor employer; and

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

the employee referred to in paragraph (a) continues to be entitled to the benefits provided under the terms of the plan in respect of his or her service in the province or a designated province without further accrual.

(2) Where a transaction described in subsection (1) has taken place, whether or not the successor employer has assumed responsibility for the accrued pension benefits of the employer's plan, the employment or membership in the employer's plan of an employee referred to in paragraph (1)(a) shall not and shall be considered not to have been terminated because of the transaction.

(3) Where a transaction described in subsection (1) has taken place, whether or not the successor employer has assumed responsibility for the accrued pension benefits of the employer's pension plan, for the purpose of

(a) determining whether an employee is entitled to a deferred life annuity under a pension plan of the employer or successor employer; or

(b) determining completed service with respect to an eligibility condition of a successor employer's pension plan,

the service of the employee shall and shall be considered to include the employee's service with both the employer and the successor employer without a break in service notwithstanding the change of employers referred to in paragraph (1)(a).

1983 c32 s20

22. In a pension plan filed for registration in accordance with section 16

(a) the age and service conditions for membership shall not prevent the gradual accrual of benefits or the spreading of the employer's contributions over an employee's years of service in the class covered by the plan; and

(b) provision for calculation of the employer's contributions and of the pension benefit and, in the case of a deferred profit-sharing pension plan, the formula governing allocation of contributions and surplus among the members of the plan shall not be variable at the discretion of the employer,

unless in the opinion of the superintendent the circumstances of the plan warrant otherwise.

1983 c32 s21

23. (1) A sum received by an employer from an employee under an arrangement for the payment of the sum by the employer into a pension plan as the employee's contribution shall be and shall be considered to be held by the employer in trust for payment of the sum after receipt of the sum into the pension plan as the employee's contribution, and the employer shall not appropriate or convert a part of the sum to his or her own use or to a use not authorized by the trust.

(2) In subsection (1), a sum withheld by an employer, whether by payroll deduction or otherwise, from money payable to an employee shall be and shall be considered to be a sum received by the employer from the employee.

(3) A sum required to be paid into a pension plan by an employer as the employer's contribution to the plan shall, when due under the plan, be and shall be considered to be held by the employer in trust for payment of the sum into the plan in accordance with the plan and this Act and the regulations as the employer's contribution, and the employer shall not appropriate or convert a part of the amount required to be paid to the fund to his or her own use or to a use not authorized by the terms of the pension plan.

1983 c32 s22

24. (1) An employer shall provide each employee who is eligible or required to become a member of a registered pension plan, with reference to the benefits available to the employee under the terms of the plan, with

(a) a written explanation of the terms and conditions of the plan applicable to the employee;

(b) a written explanation of the rights and duties of the employee; and

on or before the date the employee is eligible or required to become a member.

(2) Within 9 months after a pension plan is established, an employer shall provide the explanation and information referred to in subsection (1) respecting the plan to each member of the plan and to each eligible employee.

(3) Within 6 months after a pension plan is amended, the employer shall provide the explanation and information referred to in subsection (1) respecting the plan as amended to each member affected by the amendment and to each eligible employee.

(4) An employer shall provide an employee who, upon termination of employment or termination of membership in a pension plan, becomes entitled to an immediate or deferred pension benefit with a written statement showing the benefits to which the employee is entitled or may become entitled.

1983 c32 s23

25. 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 the money is void.

1983 c32 s24

26. (1) Where the superintendent refuses to accept for registration a pension plan filed for registration under this Act or cancels a certificate of registration, the employer may, within 60 days of the day of mailing of a notification of refusal or cancellation of registration, serve on the superintendent a notice of objection in duplicate in the prescribed form setting out the reasons for the objection and the relevant facts.

(2) A notice of objection under this section shall be served by being sent by registered mail addressed to the superintendent.

(3) Upon receipt of a notice of objection, the superintendent shall reconsider his or her opinion and vary or confirm it and the superintendent shall notify the employer of his or her actions by registered mail.

1983 c32 s25

27. (1) Where an employer has served a notice of objection under section 20 or 26, the employer may appeal to the Trial Division

(a) within 90 days after the superintendent has confirmed his or her opinion; or

(b) after 90 days and before 180 days have elapsed after service of the notice of objection and the superintendent has not notified the employer that he or she has confirmed or varied the opinion.

(2) An appeal to the court shall be instituted by filing with the Registrar of the Supreme Court or by sending by registered mail addressed to the registrar 3 copies of a notice of appeal in the form that is determined by the Rules of Court.

(3) Upon receiving the copies of the notice of appeal, the registrar shall transmit 2 copies to the superintendent.

(4) Immediately after receiving a copy of the notice of appeal, the superintendent shall forward to the registrar copies of documents relevant to the appeal.

(5) An appeal may, in the discretion of the court, be heard in private or in public, unless the appellant requests that it be heard in private, in which case it shall be so heard.

(6) The court may dispose of an appeal by dismissing it, by referring the matters in issue back to the superintendent for reconsideration or by allowing the appeal.

(7) Where the court allows an appeal under this section, the superintendent shall accept the pension plan for registration or reinstatement under the direction of the court, which may include conditions precedent to qualification for registration or reinstatement of the plan imposed upon the appellant.

(8) There shall be no further appeal.

1983 c32 s26

28. The Lieutenant-Governor in Council may make regulations

(a) respecting methods of calculating pension benefit credits and pension benefits and the commuted value of a deferred life annuity;

(b) respecting the variation of pension benefits and deferred life annuities by reference to pensions payable under the Old Age Security Act (Canada) or under another pension plan administered by the Government of Canada or by the government of a province of Canada;

(c) prescribing the classes of investments and loans, both qualitative and quantitative, in which pension fund money whenever accumulated may be invested, and governing the making of the investments and loans;

(d) prescribing tests and standards for solvency of pension plans;

(e) prescribing the conditions under which, upon termination of employment of an employee, upon termination of an employee's membership in a pension plan or upon the termination or winding up of a pension plan, pension benefit credits may be held in trust by the administrator, insurer or trustee of the pension plan, or transferred to the administrator, insurer or trustee of another pension plan or to a registered retirement savings plan or to the agency described in section 14;

(f) designating employees or pension plans, or a class of either, that are excepted from the application of this Act or the regulations;

(g) designating a province of Canada as a province in which there is in force legislation substantially similar to this Act;

(h) specifying service that shall be considered not to be service in a designated province;

(i) prescribing mental or physical disability for the purpose of paragraph 18(5)(b);

(j) providing for, regulating and governing the disposition of the assets of a pension plan that is discontinued, terminated or wound up;

(k) requiring the providing of information to the superintendent in respect of pension plans;

(l) prescribing forms and providing for their use;

(m) prescribing fees for registration and the annual supervision of pension plans;

(n) prescribing approved contribution and benefit formulae in respect of pension plans required to be registered under this Act;

(o) prescribing the information in respect of pension plans that is required to be made available by employers or trustees of pension plans to employees or members of the plans or persons entitled to benefits and prescribing the times at which and the conditions under which those persons may inspect or make extracts from the pension plans and relevant documents;

(p) defining an expression or term used in this Act not already defined; and

(q) generally, to give effect to the purpose of this Act.

1983 c32 s27

29. (1) A person who contravenes this Act or the regulations or who obstructs the superintendent or an officer or agent of the superintendent in the performance of his or her duties is guilty of an offence and is liable on summary conviction to a fine of not less than $200 and not more than $10,000.

(2) An employer who is convicted of an offence under subsection (1) shall pay to the insurer, trustee or administrator of the pension plan in respect of which the offence was committed amounts that the employer has wrongfully failed to pay as required by this Act and the regulations.

(3) Where a corporation is guilty of an offence under this Act, an officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in, or participated in, the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

1983 c32 s28