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The Pension Benefits Act
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This version was current from March 31, 2010 to May 30, 2010.

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C.C.S.M. c. P32

The Pension Benefits Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act

"active member" of a pension plan means a member of the plan who is accruing a pension under the plan, or would be accruing a pension if it were not for a temporary interruption in employment; (« participant actif »)

"administrator" means

(a) in relation to a pension plan, the person or body of persons referred to in subsection 28.1(1) or (1.1) that is responsible for administering the plan, and

(b) in relation to a prescribed plan or to a registered retirement income fund as defined in subsection 21.4(1), the financial institution responsible for administering the plan or fund; (« administrateur »)

"commission" means The Pension Commission of Manitoba; (« Commission »)

"common-law partner" of a member or former member means

(a) a person who, with the member or former member, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) a person who, not being married to the member or former member, cohabited with him or her in a conjugal relationship

(i) for a period of at least three years, if either of them is married, or

(ii) for a period of at least one year, if neither of them is married; (« conjoint de fait »)

"common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait »)

"deferred life annuity" means a life annuity that commences at retirement age under a pension plan but in any event not later than at the maximum age at which benefits are required to be paid to a member of the plan under the Income Tax Act (Canada); (« rente viagère différée »)

"defined benefit pension plan" means a pension plan under which the pension to which a member is entitled upon retirement in accordance with the pension plan is prescribed by the terms of the pension plan on the basis of a period of service under the pension plan or income earned while a member of the pension plan or during a prescribed period of membership in the pension plan or on the basis of both such a period of service and such income earned; (« régime de retraite à prestations déterminées »)

"designated province" means another province or territory of Canada in which there is in force legislation substantially similar to this Act and that has been designated in the regulations as a designated province; (« province désignée »)

"employee" means an individual who performs service in Manitoba or in a designated province for a continuous period of not less than six 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 principal on a substantially full-time basis; (« employé »)

"employer" means, in relation to an employee, any person or association from whom the employee receives his remuneration, and includes the government and an agency of the government; (« employeur »)

"life annuity" means an annuity that continues for the duration of the life of the annuitant, whether or not it is thereafter continued to some other person; (« rente viagère »)

"member" of a pension plan means an employee or former employee who is accruing, entitled to or receiving a pension under the plan; (« participant »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"pension benefit" means the aggregate annual, monthly or other periodic amounts to which an employee is or will become entitled upon retirement or to which any other person is entitled under a pension plan by virtue of the death of the employee after his retirement; (« prestations de pension »)

"pension benefit credit" means the value at a particular time of the pension benefits and any other benefits provided under the pension plan to which the employee has become entitled as of that time; (« crédit de prestations de pension »)

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

(a) 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,

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

(c) 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

(d) a deferred profit sharing pension plan other than a profit sharing plan as defined in paragraph 147(1)(b) of the Income Tax Act (Canada);

but does not include a retirement compensation arrangement as defined in the Income Tax Act (Canada) that provides pension benefits in excess of the maximum benefit permitted by that Act and the regulations made thereunder; (« régime de retraite »)

"prescribed" means prescribed by regulation under this Act;

"qualification date" means

(a) in respect of employment in Manitoba, July 1, 1976, and

(b) 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; (« date d'habilitation »)

"registered pension plan" means a pension plan that is registered with and certified by the commission as a plan organized and administered in accordance with this Act; (« régime enregistré de retraite »)

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

"superintendent" means the Superintendent of Pensions; (« surintendant »)

"supplemental pension plan" means a pension plan established for employees whose membership in another pension plan is a condition precedent to membership in the supplemental pension plan; (« régime complémentaire de retraite »)

"surplus" when applied to a pension plan means the excess, determined at the time of a review, of the value of the assets of the plan, excluding the present value of outstanding special payments, over the value of the liabilities of the plan in respect of service rendered by employees and former employees prior to that time; (« surplus »)

"temporary suspension of employment" means a period not exceeding 52 consecutive weeks during which a person who immediately before the period was employed by an employer is not performing duties as an employee of the employer and after the expiry of which the person is again employed by the employer, except where an actual termination of the employment of the person has occurred, and includes any leaves of absence authorized by the employer or required by law to be granted which do not extend the period to more than 52 consecutive weeks; (« suspension temporaire d'emploi »)

"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. (« cotisation volontaire »)

"YMPE" means the Year's Maximum Pensionable Earnings as defined in the Canada Pension Plan. (« MGAP »)

1(2)        Repealed, S.M. 1992, c. 36, s. 2.

Surviving common-law partner

1(3)        For the purposes of subsection 21(26), a common-law partner shall be considered to have survived a member or former member with whom he or she had a common-law relationship only if they were cohabiting with each other immediately before the death of the member or former member.

S.M. 1992, c. 36, s. 2; S.M. 1997, c. 15, s. 2; S.M. 2001, c. 37, s. 7; S.M. 2002, c. 48, s. 19; S.M. 2005, c. 2, s. 2.

Province of employment

2           For the purposes of this Act, a person shall be deemed to be employed in the province in which the establishment of his employer to which he reports for work is situated, and, where the employee is not required to report for work at any establishment of his employer, he shall be deemed to be employed in the province in which the establishment of his employer from which his remuneration is paid is situated.

Conflict with other Acts

3           In the event of conflict between any provision of this Act and any provision of any other Act other than The Garnishment Act, the provision of this Act prevails.

S.M. 1995, c. 3, s. 36.

PART I

PENSION COMMISSION

Commission continued

4(1)        The Pension Commission of Manitoba, composed of not fewer than five and not more than nine members as the Lieutenant Governor in Council may determine, is continued.

Appointment of members

4(2)        The Lieutenant Governor in Council shall appoint the members of the commission who shall hold office for such terms as the Lieutenant Governor in Council may prescribe and thereafter until their successors are appointed.

Chairman and vice-chairman

5(1)        The Lieutenant Governor in Council shall appoint one of the members of the commission to be chairman and one to be vice-chairman of the commission.

Absence of chairman and vice-chairman

5(2)        Where neither the chairman nor the vice-chairman are present at a meeting of the commission, the members of the commission present at the meeting shall designate a member present to preside over the meeting and the member so designated has, for the purposes of conducting the meeting, all the powers and duties of the chairman of the commission.

Quorum

6           One-half of the members of the commission, or where there is an uneven number of members, that number of members that is closest to and more than one-half of the members, constitute a quorum.

Staff

7(1)        A Superintendent of Pensions and such other officers and employees as may be required for the purpose of the administration of this Act may be employed as provided under The Civil Service Act.

Chief administration officer

7(2)        The Superintendent of Pensions is the chief administrative officer of the commission.

Inspection powers of superintendent

8(1)        The superintendent or the superintendent's duly authorized representative may, at any reasonable time,

(a) inspect the books, files, documents and other records relating to a pension plan kept by any employer or by any insurer, administrator or trustee of a pension plan or by any other person;

(b) by notice in writing, require any employer or any insurer, administrator or trustee of a pension plan, or any other person, to furnish to the superintendent, in a form acceptable to the superintendent, such information as the employer, insurer, administrator, trustee or person has and as the superintendent considers necessary for the purpose of ascertaining whether or not this Act and the regulations have been or are being complied with.

Grounds for order

8(2)        The superintendent may make an order in accordance with subsection (3)

(a) where a notice is given under clause (1)(b) and the recipient fails to respond within 10 days from the date of receipt of the notice;

(b) where, in the opinion of the superintendent, a pension plan or the manner in which it is being administered is not in conformity with this Act or the regulations;

(c) where, in the opinion of the superintendent, an employer or the insurer, administrator or trustee of a pension plan or any other person has committed a breach of a provision of this Act or the regulations; or

(d) where the insurer, administrator or trustee of a pension plan cannot be located or is insolvent and there is no other person to undertake the winding-up of the pension plan.

Contents of order

8(3)        The superintendent may, by an order made pursuant to subsection (2),

(a) require any person in breach of a provision of this Act or the regulations to remedy the breach without delay or within a specified period of time;

(b) require an employer who has established a pension plan or the insurer, administrator or trustee of the pension plan, or any person charged with a duty in respect of the pension plan, to take or to refrain from taking a specified action or proposed action with respect to the pension plan;

(c) appoint a person to act in place of and to perform the duties of the insurer, administrator or trustee of a pension plan;

(d) assume the duties of the insurer, administrator or trustee of a pension plan;

and the order shall state the reasons for the making thereof.

Administration expenses

8(4)        Where the superintendent appoints a person under clause (3)(c) to act in place of the insurer, administrator or trustee of a pension plan, or assumes the duties of the insurer, administrator or trustee of a pension plan under clause (3)(d), the reasonable administration expenses of the person or superintendent may be paid out of the pension fund.

Service on affected person

8(5)        A copy of any order made under this section shall be served by certified mail upon the person affected by it or, if the person cannot be located, shall be mailed by certified mail to the last known address of the person, and the date of mailing shall be deemed to be the date of service.

Appeal to commission

8(6)        A person affected by an order made under this section may appeal from the order to the commission, within a period of time prescribed in the order or such further period of time as the commission may allow.

Statement of appeal

8(7)        An appeal under this section shall be commenced by filing with the commission a copy of the order appealed from together with a written statement setting out the grounds of the appeal and the relief requested.

Hearing by commission

8(8)        The commission shall hear an appeal under this section as soon as practicable but not later than 30 days after the date of filing of the order and statement under subsection (7).

Appellant may attend hearing

8(9)        The appellant in an appeal before the commission under this section may attend the hearing of the appeal, either alone or with counsel, and present argument.

Powers of commission on appeal

8(10)       Upon hearing an appeal from an order under this section, the commission may

(a) confirm the order as made;

(b) direct the superintendent to vary the order; or

(c) rescind the order.

Appeal from commission

8(11)       A person affected by a decision of the commission at a hearing held under this section may appeal from that decision to the Court of Appeal, and section 36 applies to the appeal with such modifications as the circumstances require.

S.M. 1992, c. 36, s. 3.

Liability of commission and staff

9           No member of the commission and no person employed under the commission is personally liable for anything done by it or him in good faith under the authority of this Act or the regulations.

Duties and functions of the commission

10(1)       The commission shall

(a) actively promote the establishment, extension and improvement of pension plans throughout Manitoba, the reciprocity between pension plans and the further protection of rights under pension plans;

(b) administer and enforce this Act and the regulations;

(c) accept for registration all pension plans that are filed for registration with the commission and that qualify for registration under this Act and the regulations, and refuse to register any pension plan that does not qualify for registration;

(d) cancel the registration of any pension plan

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

(ii) in respect of which the employer or the pension plan administrator has failed to comply with this Act or the regulations, or

(iii) that is not being administered according to a contractual provision required by this Act or the regulations;

(e) conduct surveys and research programs and obtain statistics for the purposes of the commission;

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

(g) perform other functions and discharge other duties assigned to it from time to time by the Lieutenant Governor in Council.

Delegation of powers and duties of commission

10(2)       The commission may in writing delegate to the superintendent, subject to such terms and conditions as the commission may specify, any of the powers and duties conferred or imposed upon it by this Act except the power to hear and decide appeals under section 8.

S.M. 1992, c. 36, s. 4.

Reciprocal agreements re administration of pension plans

11(1)       The minister may enter into an agreement with the government or an authorized representative of the government of a designated province or of Canada, or with more than one of them, to do one or more of the following things:

(a) provide for the reciprocal registration, audit and inspection of pension plans, and the reciprocal enforcement of specified laws affecting pension plans;

(b) authorize the pension commission, superintendent or other authorized representative of the designated province or Canada to exercise any of the powers or perform any of the duties of the commission or the superintendent under this Act;

(c) authorize the commission or the superintendent in Manitoba to exercise any of the powers or perform any of the duties of the pension commission, superintendent or other authorized representative of the designated province or Canada under the laws of that jurisdiction governing pensions;

(d) establish an association of pension commissions in Canada and to authorize such an association to exercise such powers and perform such duties of the commission as the agreement may provide.

Existing agreements

11(2)       Any agreement of a type described under subsection (1) that is in force at the time that subsection (1) comes into force continues in effect as if entered into under subsection (1).

Reciprocal agreements re application of laws

11(3)       The minister may enter into an agreement with the government or an authorized representative of the government of a designated province or of Canada, or with more than one of them, to provide that where a pension plan is subject to both this Act and the enactments of one or more of those other jurisdictions, either

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

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

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

Effective date of laws

11(4)       An agreement entered into under subsection (1) or (3) shall specify the date on which it comes into force and the agreement acquires the force of law in Manitoba as of that date.

Public notice of reciprocal agreements re laws

11(5)       As soon as practicable after entering an agreement or any amendment to an agreement under subsection (3), the minister shall cause the text of the agreement or the amendment to be published in the gazette.

S.M. 1992, c. 36, s. 5; S.M. 1996, c. 45, s. 2.

Audit

12          The Auditor General shall, at least once a year, and at such other times as the minister may request, make an audit of the books and accounts of the commission, and report the result thereof to the minister.

S.M. 2001, c. 39, s. 31.

Annual report

13(1)       The commission shall make an annual report of the affairs of the commission to the minister.

Tabling report

13(2)       The minister shall forthwith lay the report before the Legislature if it is then in session and if it is not in session, within 15 days of the beginning of the next ensuing session.

Actions for deducting amounts

14          No action lies against any person for withholding, deducting, paying or crediting any sum of money in compliance or intended compliance with this Act unless the amount withheld, deducted, paid or credited is more than required or was wrongfully withheld, deducted, paid or credited.

Certain agreements void

15          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 such amount is void.

Pension agency

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

Definitions

17(1)       In this section,

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

"employer" includes the trustee or insurer under a pension plan. (« employeur »)

Effect of designation of successor to beneficiary

17(2)       Where in accordance with the terms of a pension plan an employee has designated a person or persons to receive a benefit payable under the pension plan in the event of the employee's death,

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

(b) such person or persons may upon the death of the employee enforce payment of the benefit, but the employer is entitled to set up any defence that he could have set up against the employee or his personal representatives.

Alteration of designations

17(3)       An employee may from time to time alter or revoke a designation made under a pension plan, but the alteration or revocation may be made only in the manner set forth in the pension plan.

Where Insurance Act applies

17(4)       This section does not apply to a designation of a beneficiary to which The Insurance Act applies.

PART II

Registration of plans established before July 1, 1976

18(1)       Subject to subsection (5), every employer of employees in Manitoba covered by a pension plan established before July 1, 1976 in respect of employment in Manitoba shall, unless under the terms of the pension plan the employer is not required to make contributions to or under the plan,

(a) where a copy of the pension plan was not filed with the commission for registration on or before October 1, 1976, file a copy on such later date as the commission may, on application, allow; and

(b) while such plan remains in force, maintain its qualification for registration as required by this Act.

Registration of plans established after July 1, 1976

18(2)       Subject to subsection (5), every employer who establishes a pension plan for employees in Manitoba on or after July 1, 1976 in respect of employment in Manitoba 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 commission for registration within 60 days after the establishment of the plan; and

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

New plan established after June 24, 1992

18(2.1)     An employer who establishes a new defined benefit pension plan and submits it for registration after June 24, 1992 shall

(a) specify, in the plan document and every other document governing the plan, the ownership of any surplus assets of the plan for the purpose of determining their disposition;

(b) include in the plan or attach evidence showing, to the satisfaction of the superintendent, that a majority of the members of the plan have agreed in writing to the ownership of any surplus assets of the plan as specified under clause (a); and

(c) provide, in the plan document, a mechanism satisfactory to the superintendent for resolving disputes between members of the plan and the employer respecting the disposition of surplus assets of the plan.

Filing of supplemental plans

18(3)       Where an employer has established a supplemental pension plan associated with a pension plan required to be filed for registration under subsection (1) or (2), whether or not the employer contributes to the supplemental pension plan, the employer shall file a copy of the supplemental pension plan with the commission for registration and subsection (1) or (2), as the case requires apply thereto mutatis mutandis.

Annual return

18(4)       Subject to subsection (5), every employer of employees in Manitoba covered by a pension plan shall file with the commission annually an information return as prescribed by the regulations in respect of every pension plan administered by or on behalf of the employer or the employees.

Where employer not involved with administering plan

18(5)       Where an employer of employees in Manitoba covered by a pension plan contributes to the pension plan by reason of an agreement, by-law or statute, if

(a) the pension plan is administered by trustees not appointed or selected, or a majority of whom are not appointed or selected, by the employer or a group of employers; and

(b) the trustees of the pension plan are authorized to administer the pension plan and make investments for it without reference to the employer or the group of employers;

the employer is relieved from complying with subsections (1), (2), (3) and (4), and with section 29 but the trustees are responsible for complying in respect of the pension plan with the provisions of this Act and the regulations other than those that relate to the funding of the pension plan or to contributions to be made or to be deducted from the salaries or wages of employees by the employer and section 20, and subsections 33(2), 33(3), 35(1), and 35(3) apply with such modifications as the circumstances require to the trustees.

S.M. 1992, c. 36, s. 6; S.M. 1997, c. 15, s. 3.

Acceptance for registration

19          The commission shall accept for registration and issue its certificate in respect of each pension plan filed for registration under section 18 that in the opinion of the commission is a pension plan organized and administered in accordance with this Act.

Procedure on refusal to register

20          After a pension plan is filed with the commission for registration, the superintendent shall advise the commission in writing of his opinion as to whether or not the plan is organized and administered in accordance with the Act, and no penalty shall be imposed upon an employer under this Act for failure to register a pension plan until the written opinion of the superintendent has been received by the commission and the commission has notified the employer of its decision concerning registration of the plan by registered mail and 60 days have elapsed thereafter.

Requirements respecting deferred life annuities

21(1)       A pension plan filed for registration in accordance with section 18 shall provide contractually

(a) that, where a member of the pension plan has completed service for a continuous period of 10 years or has been a member of the pension plan for a continuous period of 10 years, whichever occurs first, and the member terminates his or her membership in the plan while employed in Manitoba, there vests in the member immediately on that termination an entitlement to receive a deferred life annuity in respect of the period of membership from on or after the qualification date, as the case may be, but before January 1, 1985; and

(b) that upon termination of his employment or termination of his membership in the pension plan on or after the date on which he attains the age of 45 years, a member of the pension plan who is entitled to a deferred life annuity under a provision of the pension plan that is required under clause (a) is not entitled to withdraw any part of his contributions to or under the pension plan (except voluntary additional contributions) in respect of service after July 1, 1976, or if he has service prior to July 1, 1976 with the employer in a designated province, in respect of that service after the qualification date for that designated province, and such contributions shall be applied under the terms of the plan towards the provision of the deferred life annuity required to be provided to the member under a provision of the pension plan that is required under clause (a).

Amount of pension payable

21(1.1)     The pension payable pursuant to a pension plan under subsection (1) in respect of employment in Manitoba or in a designated province, other than the portion of the pension accruing from voluntary additional contributions, shall be not less than

(a) for employment on and after the qualification date but before January 1, 1985, the pension that is provided for that employment under the terms of the pension plan at the date of termination of membership; and

(b) for employment before the qualification date, where the pension plan was amended on or after the qualification date but before January 1, 1985, the pension that is provided for that employment under the terms of the amended pension plan.

Requirements respecting deferred life annuities for 1985

21(2)       Every pension plan shall provide

(a) that, where a member of the pension plan has completed service for a continuous period of two years or has been a member of the pension plan for a continuous period of two years, whichever occurs first, and the member terminates his or her membership in the plan while employed in Manitoba, there vests in the member immediately on that termination an entitlement to receive a deferred life annuity in respect of the period of membership from on or after January 1, 1985, as the case may be; and

(b) that upon termination of his employment or termination of his membership in the pension plan on or after the date on which a member becomes entitled to a deferred life annuity under a provision of the pension plan that is required under clause (a), the member is not entitled to withdraw any part of his contributions to or under the pension plan (except voluntary additional contributions) in respect of service after January 1, 1985, and such contributions shall be applied under the terms of the plan towards the provision of a deferred life annuity required to be provided to the member under a provision of the pension plan that is required under clause (a).

Amount of pension payable

21(2.1)     The pension payable pursuant to a pension plan under subsection (2) in respect of employment in Manitoba or in a designated province, other than the portion of the pension accruing from voluntary additional contributions, shall be not less than

(a) for employment on and after January 1, 1985, the pension that is provided for that employment under the terms of the pension plan at the date of termination of membership; and

(b) for employment before January 1, 1985, where the pension plan was amended on or after that date, the pension that is provided for that employment under the terms of the amended pension plan.

Entitlement on winding up of plan

21(2.2)     Subject to this Act, on the termination or winding up of a pension plan there vests in each member of the pension plan, immediately and unconditionally, the entitlement to receive a pension in respect of his or her membership in the plan on and after the qualification date.

Exemption from clauses (1)(b) and (2)(b)

21(2.3)     Where

(a) a pension plan provides a benefit or allocates surplus assets in respect of a person entitled to a benefit and the benefit or surplus asset allocation is in excess of the maximum benefit or contribution limit applicable to the pension plan under the Income Tax Act (Canada); or

(b) the commuted value of the benefits under a pension plan is in excess of the maximum limit that can be transferred to another pension plan or to a registered retirement savings plan under the Income Tax Act (Canada);

the amount of the benefit, surplus asset allocation or commuted value that is in excess of the maximum limit is exempt from the requirements of clauses (1)(b) and (2)(b) and shall not be treated as a deferred life annuity for purposes of this Act.

No surrender or commutation

21(3)       Notwithstanding any provision of a pension plan,

(a) a deferred life annuity prescribed by subsection (1) is not capable of surrender or commutation during the lifetime of the employee, if the employee first became entitled to the deferred life annuity after he had attained the age of 45 years, and, except in accordance with subsections 31(2) and (4) and section 31.1, does not confer upon any employee, personal representative or dependant, or any other person, any right or interest in the deferred annuity capable of being surrendered or commuted during the lifetime of the employee;

(b) the deferred life annuity prescribed by subsection (2) is not capable of surrender or commutation during the lifetime of the employee and, except in accordance with subsections 31(2) and (4) and section 31.1, does not confer upon any employee, personal representative or dependant, or any other person, any right or interest in the deferred annuity capable of being surrendered or commuted during the lifetime of the employee;

(c) the pension benefits provided under the terms of the pension plan in respect of service after the qualification date are not, on or after the date of the retirement of the employee, capable of surrender or commutation during his lifetime and, except in accordance with subsections 31(2) and (4) and section 31.1, do not confer upon any employee, personal representative or dependant, or any other person, any right or interest in such pension benefits capable of being surrendered or commuted during the lifetime of the employee; and

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

(i) the termination of his employment, or

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

prior to his attaining retirement age and in circumstances where he is not subject to clause (1)(b).

Exceptions to subsecs. (1), (2) and (3)

21(4)       Notwithstanding subsections (1), (2) and (3), a pension plan

(a) may provide for vesting after a shorter membership or service qualification than prescribed in clause (1)(a) or (2)(a), as the case may be;

(b) may provide for locking in at a time earlier than required under clause (1)(b) or (2)(b), as the case may be;

(c) may, in the case of a former member who retired, died or terminated employment before January 1, 1998 or in the case of a member who died before that date, provide for payment to the former member or the surviving spouse or common-law partner of the deceased member or deceased former member of an amount equal to the commuted value of the deferred life annuity or pension benefit credit to which the former member or the spouse or common-law partner is entitled, if

(i) the annual amount that would be payable to the member or former member at normal retirement age is less than 4% of the YMPE for 1997, or

(ii) the pension benefit credit is less than 4% of the YMPE for 1997; and

(d) shall, in the case of a former member who retired, died or terminated employment on or after January 1, 1998 or a member who died on or after that date, provide for payment to the former member or the surviving spouse or common-law partner of the deceased member or deceased former member of an amount equal to the commuted value of the deferred life annuity or pension benefit credit to which the former member or the spouse or common-law partner is entitled, if

(i) the annual amount that would be payable to the member or former member at normal retirement age is less than 4% of the YMPE in the year in which the member died or the former member died, retired or terminated employment, or

(ii) the pension benefit credit is less than 4% of the YMPE in the year in which the member died or the former member died, retired or terminated employment.

Partial commutation permitted

21(5)       Notwithstanding subsections (1) and (3), where a pension plan so provides, an employee to whom clause (1)(a) or (1)(b) applies may receive in partial discharge of his rights under the plan as a lump sum, upon or after termination of employment or membership in the pension plan prior to his attaining 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) in respect of service as an employee prior to January 1, 1985.

Alternative settlements

21(6)       Notwithstanding subsections (1) and (3), but subject to section 23, if a pension plan so provides, a person who is entitled to a deferred life annuity under subsection (1) may, before the commencement of payment of such life annuity, elect to receive,

(a) a deferred life annuity the amount of which is reduced or increased by reason 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 such annuity to any person after the employee's death; and

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

partly or wholly in lieu of the deferred life annuity prescribed by subsection (1).

Normal retirement age

21(7)       Every pension plan shall provide that normal retirement and eligibility for pension shall occur at an age specified in the pension plan but nothing in the pension plan shall compel retirement at that or at any other age and the provision of a normal retirement age in a pension plan is not discrimination because of age within the meaning of The Human Rights Act.

Vesting on retirement at normal retirement age

21(8)       Every pension plan shall provide that a member of the pension plan who retires on or after reaching the normal retirement age for the pension plan is entitled to an annuity in accordance with the terms of the pension plan, as those terms are at the date of retirement and that is not less than the pension benefits in respect of service as an employee after January 1, 1984.

Continuing after retirement age

21(9)       No pension plan shall prohibit or prevent an employee from continuing as a member of the pension plan and to make contributions to the pension plan for the purpose of enhancing the pension benefits under the pension plan solely because the employee has reached or is older than the normal retirement age for the pension plan.

Early retirement provision

21(10)      Every pension plan shall provide that subject to reasonable age and service requirements, a member may elect to retire and begin receiving pension payments before reaching the normal retirement age under the pension plan and any age requirement relating to an early retirement provision of a pension plan is not discrimination because of age within the meaning of The Human Rights Act.

Employee's share of deferred life annuity

21(11)      Notwithstanding clause (1)(b), every pension plan shall provide that where a member of a pension plan becomes entitled to a deferred life annuity under clause (2)(a), if the value of his or her contributions and accummulated interest thereon exceeds 1/2 of the commuted value of the deferred life annuity, the amount of the difference shall at the option of the member either

(a) be refunded to the member; or

(b) be used to increase the benefits under the deferred life annuity.

Effect of temporary suspension of employment

21(12)      Every pension plan shall provide that employment after December 31, 1983 of an employee before and after a temporary suspension of employment of the employee shall be considered as continuous for the purposes of interpreting terms of the pension plan relating to

(a) eligibility for membership in the pension plan;

(b) vesting of deferred life annuities as required under clause (1)(a) or (2)(a);

(c) locking in of contributions as required under clause (1)(b) or (2)(b); and

(d) the determination of benefits arising on the termination or winding up of the pension plan.

Transfer to retirement savings plan

21(13)      Subject to the regulations,

(a) a pension plan other than a defined benefit pension plan must permit a member, after he or she ceases to be an active member, to transfer the commuted value of the pension to a prescribed retirement savings plan or other prescribed arrangement, unless the pension has commenced; and

(b) a defined benefit pension plan

(i) must permit a member, upon ceasing to be an active member before reaching early retirement age under the plan, and

(ii) may permit a member, upon ceasing to be an active member on or after reaching the early retirement age under the plan,

to transfer the commuted value of the pension to a prescribed retirement savings plan or other prescribed arrangement, unless the pension has commenced.

Life income fund

21(13.1)    Notwithstanding subsections (1), (2) and (6), every member or spouse or common-law partner of a member of a pension plan who becomes entitled to a pension benefit under the plan may replace that pension benefit with a life income fund or other arrangement prescribed in the regulations.

Integration with government plan

21(14)      If a pension plan so provides, an employee may, on or before attaining 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 any other pension plan administered by the Government of Canada or by the government of a province of Canada.

Prohibition against reductions in pension

21(15)      After a person has begun to receive payments of a pension from a pension plan, the amount of pension being paid to the person shall not, after July 1, 1976, be reduced by reason of any change in benefits paid to the person under the Old Age Security Act (Canada) or under the Canada Pension Plan (Canada) or under The Quebec Pension Plan or any or all of them.

Reduction for C.P.P. and O.A.S.

21(16)      Where a pension plan provides that the pension which a person is eligible to receive from the pension plan shall be reduced by any amount by reason of the person receiving a benefit under the Canada Pension Plan (Canada), or the Quebec Pension Plan or any or all of them, the amount by which the pension payable to a person may be reduced shall not exceed an amount calculated in accordance with the following formula:

Formula

Maximum amount of reduction = .03 B x Y

In this formula

B

is the amount of benefit determined as of the date of termination of employment, retirement or death of the member of the pension plan, payable to the person

(i) under the Canada Pension Plan (Canada) or the Quebec Pension Plan where the reduction relates only to benefits under the Canada Pension Plan (Canada) or the Quebec Pension Plan, or

(ii) under the Canada Pension Plan (Canada) and the Quebec Pension Plan where the reduction relates to benefits under both of them; and

Y

is the number of years, including fractions but not exceeding 33 1/3 years, that the person has been a member of the pension plan.

Reduction for OAS prohibited

21(17)      Subject to subsection (14), no pension plan shall provide that the pension which a person is eligible to receive from the pension plan in respect of service after December 31, 1983, will be reduced by any amount by reason of the person receiving a benefit under the Old Age Security Act (Canada).

Discrimination based on sex prohibited

21(18)      No pension plan shall provide for or permit

(a) different rates or amounts of contributions by the members based on difference in sex; or

(b) different pensions, annuities or benefits based on differences in sex; or

(c) different options as to pensions, annuities or benefits based on differences in sex; or

(d) the inclusion in or exclusion from membership in the pension plan of employees on the basis of the sex of the employees.

Compulsory eligibility and membership

21(19)      Subject to subsection (20), where a pension plan is in effect for a class of employees of an employer, the pension plan shall provide

(a) that each full-time employee of that class shall be a member of the pension plan subject to any eligibility period which shall not be greater than two years;

(b) that each part-time or temporary employee who, if he were a full-time employee, would come within that class, is eligible for membership in the pension plan on the same basis as full-time employees of that class; and

(c) that each part-time or temporary employee who, if he were a full-time employee, would come within that class, and who has been so employed by the employer during two consecutive numerical years in each of which he has earned not less than one quarter of the maximum pensionable earnings for that numerical year under the Canada Pension Plan (Canada), shall be a member of the pension plan.

Exemption

21(20)      The provisions of a pension plan for employees of an employer required under subsection (19) do not require

(a) a person who is an employee of the employer and who is a student on a substantially full-time basis; or

(b) a person who is an employee of the employer and who is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of the pension plan; or

(c) a person who is a full-time employee of the employer and was so employed as a full-time employee before January 1, 1984 or the commencement date of the pension plan, whichever is the later, and who before that date was not a member of the pension plan; or

(d) a person who is a part-time or temporary employee of the employer, was so employed as a part-time or temporary employee before January 1, 1984, or the commencement date of the pension plan, whichever is the later, and whose employment after that date is broken only by temporary suspensions of employment; or

(e) a person who retires from the employment of the employer and is in receipt of a pension benefit, but subsequently returns to work for the same employer or another employer covered by the same pension plan;

to become a member of the pension plan.

Winding up plan

21(21)      Notwithstanding any provision of a pension plan, upon termination or winding up of the pension plan all contributions made after the qualification date in respect of the deferred life annuity prescribed in subsection (1) to which any person is entitled shall be applied, subject to subsection (23) and to the extent not already applied, towards the provision of the pension benefits prescribed in subsection (1).

Determination of benefits on winding up of plan

21(22)      For the purpose of determining the pension benefits to which a person may be entitled under subsection (1) at the date of termination or winding up of the pension plan,

(a) each person who on the date of the termination or winding-up of the pension plan was an employee or who within six months prior to the termination or winding-up of the pension plan terminated his employment as an employee but was not retired on pension, shall be deemed to have terminated his employment prior to attaining retirement age on the date of the termination or winding-up of the pension plan; and

(b) each former employee who retired on pension from the service of the employer shall be deemed to have terminated his employment prior to attaining retirement age but on the date of his retirement.

Reduction of additional benefits

21(23)      Notwithstanding subsections (1) and (3) and notwithstanding any 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 or by the creation of a plan after the qualification date, in respect of service prior to such amendment or creation; and

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

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

Formula for contributions and benefits

21(24)      A pension plan filed for registration in accordance with section 18 shall provide for contributions and benefits calculated in accordance with a formula prescribed by the regulations.

Benefit not to be less than contributions

21(25)      Notwithstanding any provision of this section and any provision of a pension plan, where,

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

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

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

Death of member

21(26)      Notwithstanding any provision of this Act or of the pension plan, where a member or former member of a pension plan who is entitled to a deferred life annuity under a pension plan provided in compliance with clause (2)(a) dies, the pension plan shall provide benefits

(a) by way of a life annuity to the surviving spouse or common-law partner of the member or former member, but only where that spouse or common-law partner has not received or is not entitled to receive a benefit under subsection 31(2); or

(b) where there is no surviving spouse or common-law partner, by way of payment to the beneficiary or estate of the member or former member;

the value of which is not less than the commuted value of the deferred life annuity to which the member or former member was entitled under clause (2)(a).

Eligibility for benefits after resuming cohabitation

21(27)      If, after dividing pension benefit credits under subsection 31(2) or entering into an agreement under subsection 31(6), the spouses or parties resume cohabitation, the division or agreement does not affect any right the spouse or common-law partner of the member or former member otherwise has to receive benefits under clause (26)(a).

R.S.M. 1987, c. P32, s. 39; S.M. 1992, c. 36, s. 7; S.M. 1995, c. 3, s. 37; S.M. 1997, c. 15, s. 4; S.M. 2000, c. 53, s. 2; S.M. 2001, c. 37, s. 7; S.M. 2005, c. 2, s. 11.

21.1 to 21.3  Not yet proclaimed.

"Registered retirement income fund" defined

21.4(1)     In this section, "registered retirement income fund" means a registered retirement income fund as defined in the Income Tax Act (Canada) that meets prescribed requirements.

One-time transfer to RRIF

21.4(2)     Subject to an order under The Garnishment Act to enforce a maintenance order within the meaning of that Act, to an order under section 59.3 of The Family Maintenance Act to preserve assets, and to subsections (3) to (5) and the regulations, a person who

(a) is at least 55 years old;

(b) is the annuitant under one or more prescribed retirement benefit plans; and

(c) by filing prescribed information with the superintendent in accordance with the regulations, satisfies the superintendent that he or she has not previously made a transfer under this subsection;

may, despite any provisions of the prescribed retirement benefit plans, transfer an amount from each plan to a registered retirement income fund.

Application for transfer

21.4(3)     A person may transfer an amount under subsection (2) only after

(a) receiving prescribed information provided to him or her in accordance with the regulations; and

(b) applying for the transfer in accordance with the regulations.

Maximum amount for transfer

21.4(4)     The maximum amount that may be transferred under subsection (2) from a prescribed retirement benefit plan is 50% of the amount by which

(a) the balance in the plan on the day the application for the transfer is made;

exceeds the total of

(b) the amount, if any, that is or may become payable under subsection 31(2) from the plan to a person who is living separate and apart from the transferor at the time that he or she applies for the transfer; and

(c) all amounts, if any, required to be paid out of the plan on or after the date of the application pursuant to an order under section 14.1 of The Garnishment Act that is served before the transfer is made.

Consent of cohabiting spouse or common-law partner

21.4(5)     If the transferor under subsection (2)

(a) is a former member of a pension plan who directly or indirectly transferred the commuted value of his or her pension under the plan to the prescribed retirement benefit plan;

(b) has a spouse or common-law partner; and

(c) at the time of applying for the transfer under subsection (2), is not living separate and apart from the spouse or common-law partner by reason of a breakdown of their relationship;

the administrator must not permit the transfer unless the spouse or common-law partner, after being given prescribed information in accordance with the regulations, consents in writing to the transfer, in a form approved by the superintendent.

S.M. 2005, c. 2, s. 12.

21.5        Not yet proclaimed.

Refunds

22          Where a person becomes entitled to a refund of cash in respect of contributions to a pension plan by reason of termination of employment or termination of membership in the pension plan, the employer or person responsible for making the refund of the cash shall make the refund within 90 days after

(a) the termination of the employment or membership, as the case may be; or

(b) the completion and filing of all documents required to authorize the making of the refund;

whichever is the later and the refund shall include interest at a rate per month fixed by regulations, compounded monthly and calculated, on the amount of the refund which would have been made if the termination had occurred on the last day of the last financial year of the pension plan, from the end of the last financial year of the pension plan to the last day of the month preceding the month in which the refund is made.

Joint pensions

23(1)       Every pension plan shall provide that the pension payable to a member who is married or cohabiting with a common-law partner at the time the pension payments begin shall be a joint pension payable during the lives of the member and the spouse or common-law partner of the member which joint pension may decrease by not more than 1/3 on the death of either the member or the spouse or common-law partner.

Actuarial reduction for joint pension

23(2)       A pension plan may provide that the joint pension payable to a member under subsection (1) may be less than the pension payable to that member if that member had not been married or cohabiting with a common-law partner at the time the pension payments begin by an amount actuarially calculated on the basis of the ages of the member and the spouse or common-law partner.

Waiver of joint pension

23(3)       Notwithstanding subsection (1), but subject to conditions prescribed in the regulations, where a member of a pension plan and the spouse or common-law partner of the member jointly agree, in writing in a form approved by the commission, and filed with the administrator of the pension plan to the payment of a pension to the member which does not have survivor benefits to the spouse or common-law partner or provides lesser survivor benefits than those set out in subsection (1), the pension payable to the member may have no survivor benefits or lesser survivor benefits than those set out in subsection (1).

Exemption for persons separated

23(4)       For the purposes of applying subsection (1) and (3) persons who were married to one another on January 1, 1984 but were, on that date, living separate and apart pursuant to an order of a court or a separation agreement, shall be conclusively deemed not to be married to one another unless they subsequently resume cohabitation.

"Member" includes former member

23(5)       For the purposes of this section, "member" includes a former member of a pension plan.

Benefit under division of assets

23(6)       The spouse or common-law partner of a member who receives or is entitled to receive a benefit under subsection 31(2) pursuant to a division of assets with the member is not entitled to receive a benefit under this section in respect of a joint pension with that member.

S.M. 1992, c. 36, s. 8; S.M. 2001, c. 37, s. 7.

No termination of survivor benefits

24          No pension plan shall provide that a pension or pension benefit, payable to the surviving spouse or common-law partner of a member of the pension plan or former member of the pension plan who dies, terminates in the event the surviving spouse or common-law partner

(a) remarries or subsequently marries; or

(b) subsequently enters into a common-law relationship.

S.M. 1992, c. 36, s. 9; S.M. 2001, c. 37, s. 7.

Rate of interest on defined benefit pension plan

25(1)       Every defined benefit pension plan shall provide that, after January 1, 1984, interest at a rate prescribed in the regulations shall be credited, not less frequently than once every 12 months, to contributions made by members of the pension plan after December 31, 1983.

Consistent methods of calculating interest

25(2)       The method of determining the rate of interest to be credited to the contributions of members of a defined benefit pension plan shall be consistent for the defined benefit pension plan from year to year and shall not be changed or varied without the prior approval of the superintendent.

Interest on other plans

25(3)       Every pension plan other than a defined benefit pension plan shall provide that after January 1, 1984, interest shall be credited to contributions of members of the pension plan made after December 31, 1983 and employers of the pension plan not less frequently than once every 12 months at the full rate of the earnings of the fund of the pension plan during the 12 months less the expenses of administering the pension plan and the fund.

S.M. 1992, c. 36, s. 10.

Funding and solvency of plans

26(1)       A pension plan filed for registration in accordance with section 18 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 all pension benefits, deferred life annuities and other benefits required to be paid under the terms of the plan;

(b) investment of pension fund moneys in the securities and loan prescribed by the regulations.

Restriction on payments out of plan

26(2)       Subject to subsections (2.1), (2.2) and (2.3), no funds, including surplus, in a pension plan shall be paid out of the plan to an employer unless the commission consents thereto in writing.

Conditions for payment of surplus to employer

26(2.1)     The commission shall not under subsection (2) consent to the payment of surplus to an employer out of a pension plan, unless

(a) subject to subsection (2.2), the commission is satisfied that the employer is entitled to receive the surplus under the terms governing the pension plan;

(b) all facts relevant to the payment, including the amount of the assets and liabilities of the pension plan and such other relevant information as the superintendent may require, have been disclosed to all members of the pension plan; and

(c) the employer submits a written application for the payment that contains or has attached the information required by the regulations.

Application to court

26(2.2)     Where the commission is not satisfied that an employer applying for the payment of surplus out of a pension plan is entitled to it under the terms governing the pension plan, the commission shall not consent to the payment unless a judge of the Court of Queen's Bench upon the application of the employer determines that the employer is entitled under those terms to receive the surplus.

Maximum surplus payable

26(2.3)     The maximum amount of any surplus payable to an employer out of a pension plan under this section is that portion of the surplus that is in excess of

(a) two times the total amount of the employer's current annual service contributions; or

(b) 125% of the total amount of the liabilities of the pension plan determined on the basis of factors that would apply if the pension plan were being terminated or wound up on the date of payment, less the total amount of those liabilities determined on the basis of factors applying on the assumption that the pension plan is not being so terminated or wound up;

whichever is the greater, but this subsection does not apply where the payment of surplus occurs upon the termination or winding-up of the pension plan.

Liability on winding up of plan

26(3)       Upon the termination or winding up of a pension plan filed or required to be filed for registration under section 18, the employer is liable to pay all 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 such termination or winding up, to the insurer, administrator or trustee of the pension plan.

Notification of termination of plan

26(4)       Before a pension plan that has been or is required to be filed for registration under section 18 is wound up or terminated, the person responsible under section 18 for filing the annual information return in respect of the pension plan shall notify the commission in writing of the date as of which the pension plan will be wound up or terminated and no pension plan shall be wound up or terminated as of a date prior to the date on which the commission is notified.

No reduction of credits

26(5)       No amendment of a pension plan shall adversely affect the pension benefit credits of any member in respect of remuneration and service or membership in the plan prior to the effective date of the amendment.

S.M. 1992, c. 36, s. 11.

Definitions

26.1(1)     In this section,

"employment" means an employee's employment with a participating employer; (« emploi »)

"member" means a member, a former member entitled to a deferred benefit or a pensioner; (« participant »)

"multi-unit pension plan" means a pension plan designated as a multi-unit pension plan under subsection (2); (« régime multipartite »)

"participating employer" means an employer who is contractually required to make contributions to a multi-unit pension plan in respect of employee service; (« employeur participant »)

"termination of membership" means

(a) the termination of both an employee's employment with an employer and the employee's membership in the union, association or organization of employees in that employment, or

(b) the occurrence of a continuous period of not less than 24 calendar months during which contributions are not remitted to a multi-unit pension plan by or on behalf of a member. (« cessation de participation »)

Designation of multi-unit pension plan

26.1(2)     The superintendent may designate as a multi-unit pension plan any pension plan

(a) the trustees of which have in writing declared their intent that the pension plan should be regulated as a multi-unit pension plan; and

(b) that is in compliance with the provisions of this Act and the regulations.

Opting out of multi-unit plan

26.1(3)     Where the superintendent proposes to designate a pension plan as a multi-unit pension plan, any class of the members of the pension plan that determines by a majority vote to do so may exclude themselves from the multi-unit pension plan before the designation is made.

Board of trustees

26.1(4)     A multi-unit pension plan shall have a board of trustees to administer the plan, and the board shall be constituted so that the number of trustees representing members of the plan is not less than the number of trustees representing employers.

Transfer to another plan

26.1(5)     Where an employee who is a member of a multi-unit pension plan is transferred to other employment governed by another pension plan of a participating employer, the employee may immediately join the other pension plan.

Service credits

26.1(6)     All of an employee's service with participating employers shall be taken into account for purposes of determining eligibility for benefits in a multi-unit pension plan.

Vesting of contributions

26.1(7)     Contributions made to a multi-unit pension plan by, or on behalf of, a member are vested and locked in after the completion of 350 hours of employment in each of two consecutive plan years or a reasonable equivalent approved by the superintendent.

Refund of contributions

26.1(8)     Contributions made to a multi-unit pension plan by a member that are not vested or locked in pursuant to subsection (7) shall be refunded to the member in the manner provided in section 22.

Forfeiture of benefit credit

26.1(9)     Notwithstanding subsection (8), where the pension benefit credit of a member of a multi-unit pension plan is less than 2% of the member's yearly maximum pensionable earnings and the whereabouts of the member are unknown to the administrator of the plan following a period of two years during which no contributions have been made by or on behalf of the member, the pension benefit credit may be forfeited by the administrator of the plan and in that event becomes funds of the plan.

Liability of employer limited

26.1(10)    A participating employer's liability for funding the benefits of a multi-unit pension plan is limited to the amount the participating employer is contractually required to contribute to the plan.

Required provisions in multi-unit plans

26.1(11)    A multi-unit pension plan shall contain provisions, consented to in writing by the superintendent,

(a) specifying the methods of allocation and distribution of the assets of the plan and the priorities for determining the benefits of members entitled to them, where the assets of the plan are not sufficient to pay all benefits on the winding-up of the plan;

(b) providing for the allocation of surplus assets on the winding-up of the plan;

(c) outlining the consequences of a participating employer's withdrawal from the plan, in respect of the funding and vesting of the benefits of members affected by the withdrawal;

(d) specifying the circumstances when termination of membership in the plan occurs;

(e) specifying how the plan will meet the tests for solvency prescribed in the regulations;

(f) outlining the consequences of a participating union's withdrawal from the plan, in respect of the funding and vesting of the benefits of members affected by the withdrawal; and

(g) setting out a process for selecting those trustees of the plan representing the employer or employers, and those trustees of the plan representing the members of the plan.

S.M. 1992, c. 36, s. 12.

Contents of plan

27          In any pension plan filed for registration in accordance with section 18,

(a) the age and service conditions for membership shall not, in the opinion of the commission, 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) provisions for computation 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 amongst the members of the plan shall not be variable at the discretion of the employer;

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

Trust for contributions

28(1)       Any sum received by an employer from an employee pursuant to an arrangement for the payment of such sum by the employer into a pension plan as the employee's contribution thereto shall be deemed to be held by the employer in trust for payment of the sum after his receipt thereof into the pension plan as the employee's contribution thereto, whether or not the amount thereof has been kept separate and apart by the employer and the employer shall not appropriate or convert any part thereof to his own use or to any use not authorized by the trust.

Payroll deductions

28(2)       For the purposes of subsection (1), any sum withheld by an employer for pension purposes, whether by payroll deduction or otherwise, from moneys payable to an employee shall be deemed to be a sum received by the employer from the employee.

Employer's contributions in trust

28(3)       Any sum required to be paid into a pension plan by an employer as the employer's contribution to the pension plan shall, when due under the pension plan, be deemed to be held by the employer in trust for payment of the same into the pension plan in accordance with the pension plan and this Act and the regulations as the employer's contribution, whether or not the amount thereof has been kept separate and apart by the employer and the employer shall not appropriate or convert any part of the amount required to be paid to the pension plan to his own use or to any use not authorized by the terms of the pension plan.

Enforcement of trust

28(4)       Notwithstanding that the government is not a beneficiary of the trusts deemed to be created under this section, the minister, for and on behalf of the government, may enforce those trusts and for that purpose the government has a lien and charge in the amount of the sums deemed to be held in trust on the assets of the employer that in the ordinary course of business would be entered in the accounts of the business of the employer whether so entered or not.

Payment of trust moneys

28(5)       Where under this section the government recovers any moneys deemed to be held in trust under this section, the moneys shall be paid, after deductions of any costs and disbursements incurred by the government in recovering the moneys, to the trustees of the pension plan or, if there are no trustees of the pension plan other than the employer, to the commission as the agency to hold the moneys and disburse the pension benefits under the pension plan.

Notice to be given of any late payment by employer

28(6)       Where an employer who is required under a pension plan to remit a sum fails to do so within 60 days after the date required under the plan, the person to whom the sum was to be remitted shall immediately notify the superintendent in writing.

Definitions

28(7)       For the purpose of subsection (6),

"fund holder" means

(a) an insurance company holding the pension funds pursuant to a contract of insurance,

(b) a trust corporation holding the pension funds under a trust agreement,

(c) a society established under the Pension Fund Societies Act (Canada), or

(d) a corporation that is permitted to act as a fund holder under the Income Tax Act (Canada); (« dépositaire des fonds »)

"person" means the administrator or a trustee or member of the board of trustees of the pension plan, the person charged with the investment of the funds of the plan, or the fund holder.  (« personne »)

S.M. 1997, c. 15, s. 5.

Meaning of "administrator"

28.1(1)     In this section, "administrator" means any person involved in the administration of, or charged with a duty in respect of, a pension plan, and includes

(a) the employer who establishes the plan;

(b) a trustee of the plan;

(c) a member of a board of trustees of the plan; and

(d) a person appointed under clause 8(3)(c) to perform the duties of the administrator or trustee of the plan.

Care, diligence and skill

28.1(2)     The administrator of a pension plan shall exercise the care, diligence and skill in the administration of the plan and in the administration and investment of the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person.

Special knowledge and skill

28.1(3)     The administrator of a pension plan shall use in the administration of the plan and in the administration and investment of the pension fund all relevant knowledge and skill that the administrator possesses or, by reason of the administrator's profession, business or calling, ought to possess.

Application of subsection (3)

28.1(4)     Subsection (3) applies with necessary modifications to a member of a board, agency or commission made responsible by an Act of the legislature for the administration of a pension plan.

Conflict of interest

28.1(5)     An administrator of a pension plan shall not knowingly permit the administrator's interest to conflict with the administrator's duties and powers in respect of the plan and the pension fund.

Employment of agent

28.1(6)     Where it is reasonable and prudent in the circumstances so to do, the administrator of a pension plan may employ or appoint one or more agents to carry out any act required to be done in the administration of the plan and in the administration and investment of the pension fund.

Responsibility for agent

28.1(7)     An administrator of a pension plan who employs or appoints an agent shall personally select the agent and be satisfied of the agent's suitability to perform the act for which the agent is employed or appointed, and the administrator shall carry out such supervision of the agent as is prudent and reasonable.

Employee or agent

28.1(8)     An employee or agent of an administrator is also subject to the standards that apply to the administrator under subsections (2), (3) and (5).

Benefit by administrator

28.1(9)     The administrator of a pension plan is not entitled to any benefit from the pension plan other than pension benefits, ancillary benefits, a refund of contributions, and fees and expenses related to the administration of the pension plan and permitted by the common law or provided for in the pension plan.

Member of pension committee

28.1(10)    Subsection (9) applies with necessary modifications to a member of a board, agency or commission made responsible by an Act of the Legislature for the administration of a pension plan.

Payment to agent

28.1(11)    An agent of the administrator of a pension plan is not entitled to payment from the pension fund other than the usual and reasonable fees and expenses for the services provided by the agent in respect of the pension plan.

S.M. 1997, c. 15, s. 6.

Information by employers

29          Every employer shall, in accordance with the regulations provide such information pertaining to pension plans and pension benefits to such person in such circumstances as is prescribed in the regulations.

Inspection of plan by members

30          A member of a registered pension plan or his agent authorized in writing may inspect and make extracts from the pension plan or any documents related thereto in accordance with the regulations.

Protection of pension money

31(1)       Subject to subsection (1.1) and except as permitted by The Garnishment Act,

(a) money in or payable under a pension plan;

(b) money in or payable under a prescribed plan to which no money has been transferred or contributed other than money transferred

(i) under subsection 21(13), (13.1) or (26.2) or clause 31(4)(b), or

(ii) from another prescribed plan to which this subsection applies; and

(c) money in a registered retirement income fund, as defined in section 21.4, to which no money has been transferred or contributed other than money transferred under that section;

is exempt from execution, seizure or attachment, and cannot be assigned, charged, anticipated or given as security.  Any transaction purporting to do so is void.

Exceptions

31(1.1)     Subsection (1) does not prevent

(a) money referred to in clause (1)(a) or (b) from being paid or transferred to satisfy a division under subsection (2); or

(b) money referred to in clause (1)(c) from being subject to execution, seizure or attachment

(i) to satisfy an order made under The Family Property Act, or

(ii) by a designated officer as defined in section 52 of The Family Maintenance Act in enforcement proceedings the officer may take pursuant to Part VI of that Act.

Division of pension benefits on breakup

31(2)       Subject to subsections  (3), (4), (6) and (8), where

(a) pursuant to an order of the Court of Queen's Bench made under The Family Property Act, family assets of a person are required to be divided; or

(b) pursuant to a written agreement between spouses or common-law partners, family assets of the spouses or common-law partners are divided between the spouses or common-law partners;

(c) repealed, S.M. 2002, c. 48, s. 19;

the pension benefit credit of the spouses or the parties, as the case may be, in a pension plan, or any payments due to them under a pension plan, shall be divided between them, and the division shall be made in the manner prescribed in the regulations notwithstanding that the order or the agreement, as the case may be, may require the division to be made in a different manner.

Effective date of subsection (2)

31(3)       Subsection (2) does not apply except in the case of

(a) spouses; or

(b) parties to a common-law relationship;

as the case may be, who began living separate and apart from each other after December 31, 1983.

31(3.1)     Repealed, S.M. 1992, c. 36, s. 13.

Transfer of family property portions

31(4)       Where under an order or agreement of the kind mentioned in subsection (2), a person becomes entitled to a portion of a pension benefit credit of a member or former member of the pension plan, the person is only entitled, notwithstanding any other provision of this Act or of the pension plan, to receive a portion of the payments payable under the pension plan or to transfer the portion of the pension benefit credit to which the person is entitled

(a) to another pension plan in which the person is a member or former member, if that is permitted by the terms of that other pension plan; or

(b) to a retirement benefit plan of a type prescribed in the regulations.

31(5)       Repealed, S.M. 2002, c. 48, s. 19.

Married and common-law — opting out

31(6)       Where subsection (2) becomes applicable to a pension plan in the case of either persons who are married to each other or persons who are parties to a common-law relationship, the subsection ceases to be so applicable where both spouses or both parties, as the case may be, after each has received

(a) independent legal advice; and

(b) a statement from the administrator of the pension plan showing the commuted value of the pension benefit credit in the pension plan, or the amount of the payments under the pension plan, to which each would be entitled if the subsection remained applicable;

enter into a written agreement with each other to the effect that the pension benefit credit or the pension payments, as the case may be, shall not be divided between them, and the agreement shall otherwise be in form and content as the minister may by regulation prescribe.

31(7)       Repealed, S.M. 2002, c. 48, s. 19.

Filing of agreement

31(8)       An agreement under subsection (6) shall be filed with the administrator of the affected pension plan.

S.M. 1989-90, c. 48, s. 2 and 3; S.M. 1992, c. 36, s. 13; S.M. 1995, c. 3, s. 38; S.M. 2001, c. 37, s. 7; S.M. 2002, c. 48, s. 19; S.M. 2005, c. 2, s. 23.

Garnishment of pension benefit credits

31.1        When a garnishee as defined in section 14.1 of The Garnishment Act is served with a garnishing order obtained under that section to enforce a maintenance order against a member of a pension plan, the member is entitled, for the purpose of satisfying the garnishing order and associated costs and taxes, to receive on the day of service, in complete or partial discharge of the member's rights under the plan, the lesser of

(a) the amount determined by the formula

A - B

where

A

is the member's pension benefit credit on that day, and

B

is the total of all amounts each of which is the portion of the member's pension benefit credit to which another person is entitled on a division thereof under subsection 31(2) as of that day; and

(b) the amount determined by the formula:

C + D + E

where

C

is the amount specified in the garnishing order,

D

is the total of all costs allowed by regulation in respect of the garnishing order, and

E

is the total of the taxes, if any, that would be required to be deducted or withheld in respect of a payment of the member's entitlement if the amount of the entitlement were determined under this clause.

S.M. 1995, c. 3, s. 39.

Establishment of advisory committees

32(1)       Where a pension plan registered under this Act has more than 20 members, and the plan is not administered by a board composed of almost equal numbers of representatives of the employer and representatives of the members of the pension plan or by a corporation the board of directors or governing board of which is similarly composed, if a majority, or a representative of the majority of the members of the pension plan request the employer in writing to establish an advisory committee, the employer shall establish an advisory committee consisting of representatives of the employer and an equal number of representatives of the members.

Purposes of committee

32(2)       The purposes of an advisory committee established under subsection (1) are

(a) to promote understanding and awareness of the pension plan among the members thereof;

(b) to study and make recommendations respecting improvements for the administration of the pension plan;

(c) to monitor the administration of the pension plan including, without limiting the generality of the foregoing,

(i) the maintenance of the assets of the pension plan,

(ii) the investment of the assets of the pension plan,

(iii) the documentation for the pension plan,

(iv) the interpretation of rules respecting the operation of the pension plan,

(v) the compliance with the requirements or need for financial statements and actuarial evaluations,

(vi) the actions taken in respect of information receiving from accountants, auditors and actuaries,

(vii) the compliance with the requirements of this Act and the regulations with respect to reporting, filing and registration, and

(viii) the provision of relevant information to members of the pension plan in compliance with this Act and the regulations; and

(d) to report to the superintendent any instance of non-compliance with this Act or the regulations.

Limitation on committee's powers

32(3)       An advisory committee established under this section has no authority in respect of investment decisions or strategy or funding decisions or strategy.

Declaration by commission as to winding up of plan

33(1)       The commission, when it is of the opinion that an employer has discontinued or is in the process of discontinuing a part or all of his business operations in which a substantial number of his employees who are members of a pension plan are employed, may declare the pension plan wound up in whole or in part for the purposes of this Act on such date as the commission in its discretion considers such business operations are discontinued.

Notice of declaration

33(2)       Where the commission declares under subsection (1) that a pension plan is wound up in whole or in part, it shall notify the employer by registered mail of the declaration.

Objection to winding up

33(3)       Where the employer objects to the declaration made by the commission under subsection (1), he may within 60 days from the day of mailing of the notification of the commission under subsection (2), serve on the commission a notice of objection in duplicate in the prescribed form setting out the reasons for the objection and all relevant facts.

Continuation of benefits with successor employer

34(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 business or undertaking or all or part of the assets of his business or undertaking, and,

(a) in conjunction therewith, an employee of the employer becomes an employee of the person acquiring such 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 continues to be entitled to the benefits provided under the terms of the plan in respect of his service in Manitoba or a designated province without further accrual.

Re-employment not termination of membership

34(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 pension plan for the purposes of the pension plan, the employment or membership in the pension plan of an employee referred to in clause (1)(a) shall be deemed not to have been terminated by reason of the transaction.

Service deemed continuous

34(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 any eligibility condition of a successor employer's pension plan;

the service of the employee shall be deemed to include his service with both the employer and the successor employer without any break in service notwithstanding the change of employers referred to in clause (1)(a).

Objection to refusal to register, etc.

35(1)       Where the commission 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 commission a notice of objection in duplicate in the prescribed form, setting out the reasons for the objection and all relevant facts.

Service of notice of objection

35(2)       A notice of objection under section 33 or this section shall be served by being sent by certified mail addressed to the commission at its office.

Review on objection

35(3)       Upon receipt of a notice of objection, the commission shall with all due despatch reconsider its opinion, and vary or confirm its opinion, and it shall thereupon notify the employer of its actions by registered mail.

S.M. 1992, c. 36, s. 14.

Appeal to Court of Appeal

36(1)       Where an employer has served a notice of objection under section 33 or 35, he may appeal to the Court of Appeal,

(a) within 90 days after the commission has confirmed or varied its opinion; or

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

Filing appeal

36(2)       An appeal to the court shall be instituted by filing with the Registrar of the Court of Appeal three copies of a notice of appeal in such form as is determined by the rules of the court.

Copies to superintendent

36(3)       Upon receipt of the copies of the notice of appeal, the Registrar of the Court of Appeal shall transmit two copies to the superintendent.

Relevant material to be sent to court

36(4)       Immediately after receiving a copy of the notice of appeal, the superintendent shall forward to the Registrar of the Court of Appeal copies of all documents relevant to the appeal.

Disposal of appeal

36(5)       The Court of Appeal may dispose of an appeal under this section by dismissing it, by referring the matters in issue back to the commission for reconsideration, or by allowing the appeal.

Effect of decision

36(6)       Where the Court of Appeal allows an appeal under this section, the commission shall accept the pension plan for registration or reinstatement in accordance with the direction of the court, which may include conditions precedent to qualification for registration or reinstatement of the pension plan imposed upon the appellant.

PART III

Regulations

37          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith, and every regulation made under, and in accordance with the authority granted by, this section has the force of law, and without restricting the generality of the foregoing the Lieutenant Governor in Council may make regulations

(a) respecting methods of computing 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 any other 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 moneys heretofore or hereafter accumulated may be invested, and governing the making of such investments and loans;

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

(e) respecting transfers from pension plans to prescribed retirement savings plans, prescribed retirement benefit plans or other pension plans, or to the commission or an agency established or designated under section 16;

(e.1) prescribing and regulating retirement savings plans and retirement benefit plans to which amounts may be transferred under this Act;

(e.2) not yet proclaimed;

(e.3) respecting transfers to registered retirement income funds under section 21.4;

(e.4) respecting the administrator's duties in relation to a request for a withdrawal under section 21.3 or for a transfer under section 21.4;

(e.5) to (e.7) not yet proclaimed;

(f) specifying wording which, if included in a pension plan, or if equivalent wording is included in a pension plan, provides each member of that pension plan with at least the same protection of pension benefits as is provided to a member who is entitled to a deferred life annuity under this Act when a member of that pension plan becomes a member of another pension plan having the same or equivalent wording and also provides all members of of that pension plan with the right to use either service or a period of membership in another pension plan in determining eligibility for a pension under that pension plan, if the other pension plan has the same or equivalent wording;

(g) designating employees or pension plans, or any class thereof, that are exempt from the application of this Act or any provision thereof or the regulations or any provision thereof, or both, and respecting any terms or conditions to which an exemption is subject;

(h) designating any province or territory of Canada in which there is in force legislation substantially similar to this Act as a designated province;

(i) specifying service that shall be deemed not to be service in a designated province;

(j) prescribing mental or physical disability for the purpose of clause 21(6)(b);

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

(l) providing for, regulating and governing the disposition of surplus in a pension plan;

(m) prescribing the information to be furnished to the commission and to eligible employees in respect of pension plans;

(n) prescribing forms and providing for their use;

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

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

(q) 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 thereof or persons entitled to benefits thereunder and prescribing the times at which and the conditions under which those persons may inspect or make extracts from the pension plans and documents related thereto;

(r) prescribing the manner in which employees may transfer from a pension plan the commuted value of accrued benefits under the pension plan;

(s) prescribing the manner in which pension benefit credits shall be divided for the purpose of complying with subsection 31(2);

(s.1) for the purpose of sections 14.1 to 14.3 of The Garnishment Act,

(i) respecting the manner in which pension benefit credits are to be determined,

(ii) prescribing the adjustments to be made to pension benefit credits in order to determine net pension benefit credits,

(iii) permitting a garnishee as defined in section 14.1 of The Garnishment Act to deduct or withhold taxes, and to recover costs associated with the garnishment of a pension benefit credit, from the pension benefit credit of a judgment debtor referred to in that Act, and specifying the nature of the costs and the manner in which they are to be calculated, and

(iv) respecting any matter necessary or advisable to carry out the purpose of those sections effectively;

(t) prescribing conditions under which members of a pension plan or former members of a pension plan and their spouses or common-law partners may agree to pensions with no survivor benefits or less survivor benefits than required under section 23;

(u) prescribing types of retirement benefit plans to which a person entitled to transfer a portion of a pension benefit credit under subsection 31(4) may transfer the portion of the pension benefit credit;

(v) fixing rates of interest for the purposes of this Act;

(w) respecting information pertaining to pension plans and pension benefits to be provided by employers and without limiting the generality of the foregoing prescribing the information to be provided by employers, prescribing the persons to whom the information is to be provided and prescribing the circumstances in which the information is to be provided;

(x) respecting the administration of and the benefit entitlements under any money purchase plan as described in clause (b) of the definition "pension plan" in subsection 1(1) that has not more than 250 members;

(y) respecting multi-unit pension plans as defined in section 26.1.

S.M. 1992, c. 36, s. 15; S.M. 1995, c. 3, s. 40; S.M. 1997, c. 15, s. 7; S.M. 2001, c. 37, s. 7; S.M. 2005, c. 2, s. 31.

Penalty

38(1)       Every person who contravenes any of the provisions of this Act or the regulations or who obstructs an officer or agent of the commission in the performance of his duties is guilty of an offence and on summary conviction is liable to a fine of not less than $2,000. and not more than $100,000.

Court to order restitution

38(2)       In addition to the fine, a justice who convicts a person of an offence in respect of which a money in a pension plan or payable to a plan was lost shall order the person to make restitution by paying to the plan the amount of the loss, which may include any cost incurred by the plan in respect of the offence.

Order of restitution may be filed in Q.B.

38(2.1)     An order to make restitution may be filed in the Court of Queen's Bench and enforced as an order of that court.

Liability of officers of corporation, etc.

38(3)       Where a corporation is guilty of an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in, or participated in, the committing 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.

Limitation period

38(4)       A prosecution for an offence under this section may be commenced within six years after the date the commission becomes aware of the offence, but not thereafter.

S.M. 1997, c. 15, s. 8.

Compliance with other Acts

38.1        Every employer, administrator or trustee of a pension plan shall comply with

(a) the requirements of The Garnishment Act relating to the garnishment of pension benefits and pension benefit credits; and

(b) a request for information under subsection 55(2) of The Family Maintenance Act.

S.M. 1995, c. 3, s. 41.

39 and 40   Repealed.

S.M. 1993, c. 48, s. 29.