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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 »)

"defined benefit pension plan" means a pension plan under which a member's pension

(a) is determined with reference to the member's remuneration for each year of employment, or for a selected number of years of employment, or

(b) is expressed as a fixed amount for each year of employment, or as a fixed periodic amount; (« 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 »)

"early retirement age" means the earliest age at which, under the terms of a pension plan, a member is eligible to require his or her pension to be commenced; (« âge de la retraite anticipée »)

"employee" means an individual who is employed to do work or provide a service in Manitoba or a designated province, and is receiving or entitled to receive remuneration for the work or service; (« employé »)

"employer" means a person or organization, whether incorporated or not, from whom an employee is receiving or entitled to receive, or has received, remuneration; (« employeur »)

"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 »)

"optional ancillary contributions" means the contributions that a member under a defined benefit pension plan elects to make — in addition to the contributions that the member must make to attain a pension — for later conversion in accordance with section 21.2 to optional ancillary benefits; (« cotisations accessoires facultatives »)

"other beneficiary" of a pension plan means a person who is not a member but who is entitled to a pension or other benefit under the plan; (« autre bénéficiaire »)

"pension" means a benefit in the form of a series of periodic payments that continues for the life of a member, whether or not it is continued to another person after the member's death, and includes a future entitlement to such payments but does not include ancillary benefits until they become part of the pension under subsection 21.1(2); (« pension »)

"pension benefit credit"

(a) of a person in relation to a pension plan means the value at a particular time of the pension and other benefits to which the person is then entitled, and

(b) of an owner of a prescribed plan means the value at a particular time of the assets in the plan; (« crédit de prestations de pension »)

"pension plan" means a superannuation or other plan, scheme or arrangement

(a) that is organized and administered to provide a pension to employees and former employees, and

(b) to which, except in the case of a supplemental pension plan, the employer is required to make contributions,

but does not include a prescribed plan, scheme or arrangement; (« régime de retraite »)

"period of continuous employment" includes, in the case of a temporary interruption in employment, the period of the interruption and the periods of employment immediately before and after that period; (« période d'emploi continu »)

"prescribed" means prescribed by regulation under this Act;

"prescribed plan" means a prescribed retirement savings plan or prescribed retirement benefit plan to which an amount has been or may be transferred under

(a) subsection 21(13) or (13.1) (transfer of member's pension),

(b) subsection 21(26.2) (transfer of survivor's pension), or

(c) clause 31(4)(b) (transfer on division of pension benefit credit); (« régime réglementaire »)

"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 »)

"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" of a pension plan means the excess of the value of the assets of its pension fund over the value of its liabilities, both determined in a prescribed manner; (« surplus »)

"temporary interruption in employment" of a person means a period, not exceeding a prescribed length,

(a) immediately before and after which the person was working or providing a service for the same employer, and

(b) during which the person was not working or providing a service for that employer but there was a reasonable expectation that he or she would return to working or providing a service for the employer; (« interruption temporaire d'emploi »)

"voluntary additional contribution" means a contribution that a member elects to make under a pension plan in addition to any contributions that he or she must make to attain a pension, but does not include

(a) a contribution the payment of which, under the terms of the plan, imposes upon the employer an obligation to make a concurrent additional contribution, or

(b) an optional ancillary contribution; (« 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.

1(3)        Repealed, S.M. 2005, c. 2, s. 2.

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.

Minimum benefits and entitlements may be exceeded

3.1(1)      A pension plan may contain provisions that are more advantageous to its members or other beneficiaries than the provisions required by this Act or the regulations, as long as they are not contrary to an express prohibition or restriction in this Act or the regulations.

Benefits not to be discretionary

3.1(2)      A pension plan must not permit a pension or other benefits to be provided at the discretion of the employer or the administrator.

S.M. 2005, c. 2, s. 3.

No waiver or contracting out

3.2         Except as expressly permitted by this Act or the regulations, no person may waive or contract out of any requirement of this Act or the regulations, and any attempt to do so is void.

S.M. 2005, c. 2, s. 3.

Crown bound

3.3         This Act and the regulations bind the Crown and an agency of the Crown, except where the regulations provide otherwise.

S.M. 2005, c. 2, s. 3.

PART I

PENSION COMMISSION AND SUPERINTENDENT

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 person;

(b) by notice in writing, require any person to furnish to the superintendent, in a form acceptable to the superintendent, such information as the 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, a person has committed a breach of a provision of this Act or the regulations; or

(d) where the administrator 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, administrator or any other 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;

(b.1) require an employer to pay to a pension plan money referred to in subsections 28(1) and (3) (trust for contributions);

(b.2) if the employer is a corporation, require a director of the corporation to pay any contributions to a pension plan for which the director is liable under section 28.0.1;

(b.3) for the purpose of an agreement entered into under section 11, require that the assets and liabilities of a pension plan be split or allocated, or both, where the superintendent considers it appropriate;

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

(d) assume the duties of the administrator 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 administrator, or assumes the duties of the administrator 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 an order made under this section must be given to every person required to comply with it

(a) by personal service; or

(b) by mailing or delivering it to the person at his or her last known address, using a mail or delivery service that provides the superintendent with an acknowledgment of receipt.

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.

8(8)        Repealed, S.M. 2011, c. 23, s. 2.

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.

Superintendent is party

8(9.1)      The superintendent has standing to appear before the commission on any matter before it, and may be represented by counsel.

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's decision

8(11)       A person who is a party to a decision of the commission may appeal the decision to the Court of Appeal, with leave of the court, on a question of law or jurisdiction. Section 36 applies to the appeal, with necessary changes.

Commission and superintendent entitled to be heard on appeal

8(12)       The commission and the superintendent are entitled to be heard, by counsel or otherwise, on an application for leave to appeal and on an appeal.

S.M. 1992, c. 36, s. 3; S.M. 2005, c. 2, s. 5; S.M. 2011, c. 23, s. 2.

Superintendent may file order in court

8.1(1)      When an order made by the superintendent under section 8 — or by the commission on an appeal of a decision under that section — requires an employer or other person to pay money to a pension plan, the order may be filed in the Court of Queen's Bench. On being filed, the order becomes a judgment of the court in favour of the superintendent and may be enforced as a judgment.

Collection by third party

8.1(2)      If the superintendent hires a collection agent to collect the amount owing by a person under the order filed in the court, that person is liable to pay or reimburse the superintendent for the fees and disbursements of the agent. Those fees and disbursements may be collected as if they were payable under the order.

Order includes requirement to pay collection costs

8.1(3)      An order filed in the court is deemed to include a requirement to pay any collection costs payable under subsection (2) and interest on contributions required to be paid under the regulations under this Act.

Other remedies unaffected

8.1(4)      Nothing in this section limits the superintendent's ability to register and enforce a lien in respect of unpaid contributions and other amounts referred to in subsection 28(5) or 28.0.1(8) (lien on assets).

S.M. 2011, c. 23, s. 3.

Reciprocal enforcement of orders

8.2(1)      The Lieutenant Governor in Council may, by regulation, designate another province or territory of Canada or Canada as a reciprocating jurisdiction for the purpose of enforcing in Manitoba an order, certificate or judgment made under the law of the other jurisdiction that is the equivalent of an order referred to in subsection 8.1(1) of this Act.

Application by other jurisdiction

8.2(2)      An official designated by a reciprocating jurisdiction for the purpose may apply to the superintendent for the reciprocal enforcement under this Act of an order, certificate or judgment made or issued under the law of that jurisdiction.

Filing of order or judgment

8.2(3)      Upon receiving an application, if the superintendent is satisfied that the order, certificate or judgment of the reciprocating jurisdiction is the equivalent of an order made under subsection 8.1(1) of this Act, the superintendent must file a copy of the order, certificate or judgment in the Court of Queen's Bench. On being filed, the order, certificate or judgment is enforceable as a judgment of the court in favour of the superintendent.

S.M. 2011, c. 23, 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 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; S.M. 2005, c. 2, s. 6.

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 a designated province or of Canada, or with more than one of them, concerning the pension benefits legislation that governs a pension plan that is subject to both this Act and the law of the other jurisdiction.

Contents

11(3.1)     An agreement under subsection (3) may provide for any or all of the following:

(a) that this Act or part of it is not to apply to the pension plan, and that the law or part of the law of the other jurisdiction is to apply instead, subject to any specified conditions;

(b) that this Act or part of it is to apply to the pension plan, and the law or part of the law of the other jurisdiction is not to apply, subject to any specified conditions;

(c) that a requirement of this Act or a regulation is deemed to be satisfied in respect of the pension plan if a corresponding requirement of the law of the other jurisdiction is satisfied in specified circumstances;

(d) for the allocation or splitting of the assets and liabilities of the pension plan between Manitoba and the other jurisdiction at the times and in the manner specified;

(e) additional requirements to apply with respect to the pension plan in specified circumstances.

Superintendent authorized to administer for persons outside Manitoba

11(3.2)     The superintendent is authorized to administer this Act in respect of persons outside Manitoba who are members of a pension plan that is subject to this Act in accordance with an agreement referred to in subsection (3), but only if the government of the designated province or of Canada enacts legislation that adopts this Act into its substantially similar pension standards legislation and authorizes the superintendent to administer the adopted legislation.

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; S.M. 2011, c. 23, s. 4.

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.

17          Repealed.

S.M. 2005, c. 2, s. 7.

PART II

PENSION PLANS AND THEIR ADMINISTRATION

18(1)       Repealed, S.M. 2005, c. 2, s. 9.

Registration of plans

18(2)       Subject to the regulations, the administrator of a pension plan to which an employer makes or is required to make contributions for the benefit of employees in Manitoba must

(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.

Surplus provisions in plans

18(2.1)     When a new defined benefit pension plan is filed for registration, it must

(a) specify the entitlement to any surplus under the plan; and

(b) provide a mechanism satisfactory to the superintendent for the resolution of disputes regarding the circumstances under which, or the extent to which, any surplus may be withdrawn from the plan and to whom it may be paid.

When filing the plan for registration, the administrator must provide evidence satisfactory to the superintendent that a majority of the members have agreed in writing to the provision specifying the entitlement to surplus under the plan.

Administrator to file supplemental plan

18(3)       The administrator of a supplemental pension plan that is associated with a pension plan required to be filed for registration must

(a) file a copy of the supplemental plan with the commission for registration within 60 days after it is established, whether or not the employer is required to contribute to it; and

(b) while the supplemental plan remains in force, maintain its qualifications for registration.

Annual return

18(4)       The administrator of a pension plan must file with the commission each year an information return as prescribed.

18(5)       Repealed, S.M. 2005, c. 2, s. 9.

S.M. 1992, c. 36, s. 6; S.M. 1997, c. 15, s. 3; S.M. 2005, c. 2, s. 9.

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 or her opinion as to whether the plan is organized and administered in accordance with the Act, and no penalty shall be imposed upon an administrator 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 administrator of its decision concerning registration of the plan by registered mail and 60 days have elapsed thereafter.

S.M. 2005, c. 2, s. 10.

Entitlement to a pension

21(1)       A member of a pension plan becomes entitled to a pension under the plan upon ceasing to be an active member of the plan while employed in Manitoba.

Ceasing to be an active member

21(1.1)     A member of a pension plan ceases to be an active member when

(a) the member's period of continuous employment ends;

(b) the member, having become eligible under the terms of the plan to commence receipt of a pension — otherwise than under section 21.5 — while remaining employed, elects to do so;

(c) the member ceases to be eligible for active membership under the terms of the plan;

(d) the plan is terminated or wound up, or the part of the plan in which the member is participating is terminated or wound up;

(e) the member dies; or

(f) a prescribed event or circumstance occurs;

whichever occurs first.

Amount and terms of pension

21(2)       The pension to which a member becomes entitled under subsection (1) in respect of employment in Manitoba or a designated province, other than the portion attributable to voluntary additional contributions, must not be less than

(a) for employment on or after July 1,1976, the pension provided for that employment under the terms of the plan as at the date the member became entitled to the pension; and

(b) for employment before July 1, 1976, any pension granted or accrued to the member in respect of that employment by way of an amendment made to the plan on or after that date.

21(2.1) and (2.2) Repealed, S.M. 2005, c. 2, s. 11.

Exemption from subsection (3)

21(2.3)     Where

(a) a pension plan provides a benefit or allocates surplus in respect of a person entitled to a benefit and the benefit or surplus 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 allocation or commuted value that is in excess of the maximum limit is exempt from subsection (3).

Locking in

21(3)       No pension plan or administrator of a pension plan shall permit

(a) all or any part of a pension in respect of membership in the plan on and after July 1, 1976, or any interest in such a pension, to be surrendered or commuted during the lifetime of the person entitled to it; or

(b) a member or other beneficiary of the plan to withdraw or transfer money in respect of such a pension before the pension commences;

except as permitted by this Act or the regulations.

Plan must provide for entitlement and locking in

21(3.1)     A pension plan must provide for entitlement to a pension in accordance with subsections (1) and (2) and for restrictions in accordance with subsection (3).

Exception for voluntary contributions

21(3.2)     Subsection (3) does not apply to a member's voluntary additional contributions or optional ancillary contributions, or to interest on those contributions.

Commutation of small pension

21(4)       When a member or other beneficiary is entitled to a small pension, as defined by regulation, the pension plan must provide for the payment of, and must pay, the commuted value of the pension to the member or other beneficiary in accordance with the regulations, unless

(a) the pension has commenced; or

(b) the member or other beneficiary became entitled to the pension before 1998.

If the member or other beneficiary became entitled to such a pension before 1998, and has not commenced receipt of the pension, the pension plan may permit the member or other beneficiary to withdraw the commuted value of the pension in accordance with the regulations.

Partial commutation of pre-1985 benefits

21(5)       Subject to subsection (5.1), a member of a pension plan may withdraw, as a lump sum in partial payment of the pension, an amount up to 25% of the portion of the commuted value of the pension in respect of his or her membership in the plan during the period beginning July 1, 1976, and ending December 31, 1984.

Conditions for commutation of pre-1985 benefits

21(5.1)     Subsection (5) does not apply unless the pension plan provides for the withdrawal and the member

(a) is at least 45 years old but has not reached the normal retirement age under the plan;

(b) has ceased to be an active member; and

(c) has completed a period of continuous employment under the plan of at least 10 years, or was an active member of the plan for a continuous period of 10 years.

Payments by reason of shortened life expectancy

21(6)       Subject to the regulations, a pension plan may permit a member with a terminal illness or disability resulting in a shortened life expectancy to elect, after being given prescribed information in accordance with the regulations, to receive a payment or series of payments, unless

(a) the pension has already commenced; or

(b) the member's pension is required by section 23 to be a joint pension and that requirement has not been waived in accordance with subsection 23(4).

Normal retirement age

21(7)       Every pension plan must specify a normal retirement age, or a date with reference to a specified age, which must be no later than the first day of the month following the month in which unreduced benefits are payable to a member under the Canada Pension Plan.

No age discrimination

21(7.1)     No pension plan shall compel retirement at normal retirement age or any other age. The provision for a normal retirement age in a pension plan, or any age requirement relating to early or late retirement, is not discrimination because of age within the meaning of The Human Rights Code.

21(8)       Repealed, S.M. 2005, c. 2, s. 11.

Continuing employment after normal retirement age

21(9)       No pension plan shall prevent a member who continues to be employed after reaching the normal retirement age under the plan from continuing as an active member and accruing a pension in the same manner as an active member who has not reached the normal retirement age.

Value of pension after late retirement

21(9.1)     If a member of a defined benefit pension plan ceases to be an active member after reaching the normal retirement age under the plan, the member's pension must not be less than the greater of

(a) the pension otherwise determined, taking into account the additional benefits accrued after the member reached the normal retirement age; and

(b) the actuarial equivalent, as at the date he or she ceased to be an active member, of the pension that would have been payable if the member had retired at the normal retirement age.

Early retirement

21(10)      A pension plan must provide that a member who ceases to be an active member before reaching the normal retirement age under the plan may require the pension to be commenced at any time within 10 years before he or she reaches the normal retirement age.

Value of pension on early retirement

21(10.1)    The actuarial present value of the early retirement pension under subsection (10) must not be less than the actuarial present value of the pension that would be payable if commencement of the pension were deferred until the member reached the normal retirement age under the plan.

Fifty-percent rule for post-1984 benefits

21(11)      A defined benefit pension plan must provide that if, at the time a member ceases to be an active member, his or her contributions in respect of membership in the plan after 1984, plus interest on those contributions, is greater than 50% of the commuted value of his or her pension for that period of membership, the member has the following options:

(a) to receive a refund of the excess;

(b) if permitted under the terms of the plan, to require the excess to be used to increase the amount of the pension;

(c) to require the excess to be transferred to a registered retirement savings plan or registered retirement income fund as defined in the Income Tax Act (Canada), to the extent permitted by that Act.

Matters to be ignored under fifty-percent rule

21(11.1)    For the purpose of subsection (11), the following must be ignored:

(a) any portion of the pension for which a member is not required to make contributions;

(b) the following contributions, the interest credited on them, and the pension and other benefits derived from them:

(i) voluntary additional contributions,

(ii) optional ancillary contributions,

(iii) contributions made voluntarily by the member to purchase past service.

21(12)      Repealed, S.M. 2005, c. 2, s. 11.

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.

Transfer to retirement benefit plan

21(13.1)    Subject to the regulations, a defined benefit pension plan may permit a member, and any other type of pension plan must permit a member,

(a) upon ceasing to be an active member on or after reaching early retirement age; or

(b) upon reaching early retirement age, if the member ceased to be an active member before then;

to transfer the commuted value of the pension to a prescribed retirement benefit plan or other prescribed arrangement, unless the pension has commenced or is required by section 23 to be a joint pension and that requirement has not been waived in accordance with subsection 23(4).

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 a pension 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 CPP or QPP

21(16)      If a pension plan provides for a member's pension to be reduced by reason of the member's entitlement to a pension under the Canada Pension Plan, the Quebec Pension Plan, or both, the reduction must not exceed an amount determined by a prescribed formula.

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 employment 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 differences 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.

Plan to provide membership for prescribed class

21(18.1)    A pension plan must identify one or more prescribed classes of employees who are eligible for membership in the plan.

Compulsory membership — full-time employees

21(19)      When a pension plan is in effect for a class of employees, the plan must require each full-time employee in that class to become a member on a date specified by the plan, which cannot be more than 30 days after the employee has completed the minimum period of continuous employment specified by the plan for that class, which cannot exceed two years.

Compulsory membership — other employees

21(19.1)    When a pension plan is in effect for a class of employees, the plan must require each non-full-time employee in that class, or who would come within that class if he or she were working full time, to become a member on a date specified by the plan, which cannot be more than 30 days after the employee, while so employed, has

(a) completed the minimum period of continuous employment specified by the plan for that class, which cannot exceed two years; and

(b) satisfied a further condition specified by the plan, which must be one of the following:

1. The employee has completed, in each of two consecutive calendar years, not less than the number of hours of work for the employer specified by the plan, which cannot exceed 700.

2. The employee has earned from the employer, in each of two consecutive calendar years, not less than the percentage of the YMPE specified by the plan, which cannot exceed 35%.

3. The employee has

(i) completed, in each of two consecutive calendar years, not less than the number of hours of work for the employer specified by the plan, which cannot exceed 700, or

(ii) earned from the employer, in each of two consecutive calendar years, not less than the percentage of the YMPE specified by the plan, which cannot exceed 35%.

Entitlement to join plan

21(19.2)    When a pension plan is in effect for a class of employees, the plan must permit

(a) every employee of that class; and

(b) every non-full-time employee who would come within that class if he or she were working full time;

to become a member on a date specified by the plan, which cannot be more than 30 days after the employee has completed the minimum period of continuous employment specified by the plan for that class, which cannot exceed two years.

No separate plan for non-full-time employees

21(19.3)    When a pension plan is in effect for a class of employees, the employer cannot provide a separate pension plan for non-full-time employees who are in that class or would come within that class if they were working full time.

Exemption

21(20)      The provisions of a pension plan for employees of an employer required under subsections (19) and (19.1) 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 non-full-time employee of the employer, was so employed as a non-full-time 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 interruptions in employment; or

(e) a person who retires from the employment of the employer and is in receipt of a pension, 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.

Termination or winding up of 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 pension 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.

Determination of benefits on winding up of plan

21(22)      For the purpose of determining the pension 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 employment with 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) to (3) and notwithstanding any provision of a pension plan, upon the termination or winding up of a pension plan where,

(a) a pension includes an additional pension 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 employment prior to such amendment or creation; and

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

the amount of such additional pension 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.

Minimum benefit for pre-1985 membership

21(25)      When a member of a defined benefit pension plan ceases to be an active member, the commuted value of the member's pension in respect of membership in the plan before 1985 must not be less than the member's contributions for that period of membership plus interest on those contributions. The member's pension must be increased, if necessary, for it to comply with this subsection.

Survivor benefit on pre-retirement death

21(26)      If a member of a pension plan dies before his or her pension commences, the plan must

(a) subject to subsection (26.2), provide a pension under the plan to the member's spouse or common-law partner, unless

(i) at the time of death the member was living separate and apart from the spouse or common-law partner by reason of a breakdown of their relationship, or

(ii) the spouse or common-law partner has waived his or her entitlement to the pension in accordance with subsection (26.3) and the waiver has not been revoked under subsection (26.4); or

(b) if there is no spouse or common-law partner entitled to a pension under clause (a), pay an amount to

(i) the member's designated beneficiary, other than the member's spouse or common-law partner, or

(ii) the member's estate, if there is no such designated beneficiary.

Value of pension or payment

21(26.1)    The commuted value of the pension to be provided under clause (26)(a), or the amount to be paid under clause (26)(b), must not be less than the commuted value of the pension to which the member

(a) was entitled at the time of his or her death; or

(b) would have been entitled at the time of his or her death if he or she had ceased to be an active member immediately before that time;

less any amount that is or may become payable under subsection 31(2) in respect of the member's pension benefit credit.

Transfer of commuted value

21(26.2)    Subject to the regulations, a person entitled to a pension under clause (26)(a) may transfer the commuted value of the pension to a prescribed plan or other prescribed arrangement.

Waiver

21(26.3)    A person who is or might become entitled to a pension under clause (26)(a) may, after being given prescribed information in accordance with the regulations, waive that entitlement by signing and filing with the administrator of the pension plan a waiver in a form approved by the superintendent.

Joint revocation of waiver

21(26.4)    A waiver under subsection (26.3) may be revoked before the death of the member by filing with the administrator a written revocation signed by the member and the spouse or common-law partner who granted the waiver.

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 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; S.M. 2011, c. 23, s. 5; S.M. 2012, c. 40, s. 34.

Ancillary benefits

21.1(1)     A pension plan may provide one or more prescribed ancillary benefits.

Entitlement to ancillary benefit

21.1(2)     An ancillary benefit becomes part of a member's pension, and is to be included in calculating the member's pension benefit credit or the commuted value of the pension, when and only when the member has met all the eligibility requirements under the pension plan necessary to exercise the right to receive the benefit.

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

Optional ancillary benefits

21.2(1)     A defined benefit pension plan may permit a member, at his or her option, to make optional ancillary contributions for conversion to enhanced benefits, in this section called "optional ancillary benefits", that

(a) are elected by a member or his or her surviving spouse or common-law partner; and

(b) are partly or entirely funded by optional ancillary contributions made by the member.

Plan to provide for method of conversion

21.2(2)     A pension plan that provides for optional ancillary contributions and optional ancillary benefits

(a) must provide, in accordance with the regulations, for the method of converting the optional ancillary contributions to optional ancillary benefits when the member ceases to be an active member; and

(b) may provide that optional ancillary contributions, to the extent that they exceed the maximum that under the Income Tax Act (Canada) can be converted into optional ancillary benefits, are to be forfeited to the plan.

Accounting and interest

21.2(3)     Optional ancillary contributions are to be accounted for separately from other contributions, and are to be credited with interest in accordance with the regulations.

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

"Non-resident" defined

21.3(1)     In this section, "non-resident" means not resident in Canada for the purposes of the Income Tax Act (Canada).

Withdrawal of money from plan by non-resident

21.3(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) a non-resident person entitled to a pension under a pension plan may, if the plan so provides and the pension has not commenced, make a lump sum withdrawal of the commuted value of the pension; and

(b) a non-resident owner of a prescribed plan may, if the plan so provides, make a lump sum withdrawal of the balance owing to him or her under the plan.

Application for withdrawal

21.3(3)     A person may withdraw 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 withdrawal in accordance with the regulations.

Consent of cohabiting spouse or common-law partner

21.3(4)     If the person applying for a withdrawal under subsection (2)

(a) is

(i) a member of a pension plan seeking to withdraw the commuted value of his or her pension, or

(ii) a former member of a pension plan seeking to withdraw an amount from a prescribed plan to which he or she directly or indirectly transferred the commuted value of his or her pension under the pension plan;

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

(c) at the time of applying for the withdrawal, 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 withdrawal unless the spouse or common-law partner, after being given prescribed information in accordance with the regulations, consents in writing to the withdrawal, in a form approved by the superintendent.

No withdrawal of amount payable on division

21.3(5)     The amount that may be withdrawn under subsection (2)

(a) from a pension plan by a member of the plan; or

(b) from a prescribed plan by a former member of a pension plan who directly or indirectly transferred the commuted value of his or her pension to the prescribed plan;

must be reduced by any amount that is or may become payable under subsection 31(2) from the plan to a person who is living separate and apart from the non-resident member or former member at the time of the application for the withdrawal.

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

"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.

Phased retirement

21.5        Subject to the regulations, a pension plan may provide for benefits to be paid to an active member of the plan if

(a) the member's hours of work and remuneration are reduced by agreement between the member and the employer;

(b) the member has reached the normal retirement age under the plan or is within 10 years of reaching it; and

(c) the plan also provides for the member's pension to be adjusted in accordance with the regulations when he or she retires.

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

Refund of contributions

22(1)       When a person becomes entitled to a refund of contributions to a pension plan, the administrator must make the refund, with interest as prescribed and within the time prescribed.

Transfer of benefits

22(2)       When a person becomes entitled to transfer the value of the pension and other benefits under a pension plan, the administrator must complete the transfer within the time prescribed.

S.M. 2005, c. 2, s. 13.

Joint pension entitlement

23(1)       Every pension plan must provide that the pension payable to a member who, when the pension commences, has a spouse or common-law partner must be a joint pension payable

(a) to the member during his or her lifetime; and

(b) after the member dies, to the spouse or common-law partner for his or her lifetime if he or she survives the member;

unless

(c) immediately before the pension commences, the member is living separate and apart from the spouse or common-law partner by reason of a breakdown of their relationship; or

(d) the spouse or common-law partner has waived his or her entitlement to the joint pension in accordance with subsection (4), and the waiver has not been revoked under subsection (5).

Minimum pension payable to survivor

23(2)       The periodic pension payment payable to the surviving spouse or common-law partner must be at least 60% of the periodic pension payment that was payable to the member.

Actuarial value of joint pension

23(3)       The actuarial value of the joint pension must not be less than the actuarial value of the pension that would have been payable to the member if this section had not applied.

Waiving joint pension

23(4)       The spouse or common-law partner may, after being given prescribed information in accordance with the regulations, waive his or her entitlement to a joint pension by signing and filing with the administrator of the pension plan a waiver in a form approved by the superintendent.

Revoking waiver

23(5)       A spouse or common-law partner who has provided a waiver under subsection (4) may revoke the waiver at any time before the pension commences by filing a written revocation with the administrator.

S.M. 1992, c. 36, s. 8; S.M. 2001, c. 37, s. 7; S.M. 2005, c. 2, s. 14.

No termination of survivor benefits

24          No pension plan shall provide that a pension payable to the surviving spouse or common-law partner of a member 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; S.M. 2005, c. 2, s. 15.

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)       A pension plan other than a defined benefit pension plan must provide for interest to be credited on member and employer contributions in accordance with the regulations.

S.M. 1992, c. 36, s. 10; S.M. 2005, c. 2, s. 16.

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 and other benefits required to be paid under the terms of the plan;

(b) investment of the pension fund in accordance with this Act and 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) one of the following conditions is satisfied:

(i) the employer has demonstrated to the satisfaction of the commission that the employer is entitled under the terms governing the plan to the surplus,

(ii) a judge of the Court of Queen's Bench, upon application of the employer, has determined that the employer is entitled under the terms governing the plan to the surplus,

(iii) the employer has made a proposal, in accordance with the regulations, to the members and other beneficiaries of the plan for the payment of the surplus, and has provided to the commission the following written consents to the proposed payment:

(A) the consent of every bargaining agent who represents members in relation to the proposed payment,

(B) the consents of at least 2/3 of the active members, if any, who are not represented by a bargaining agent in relation to the proposed payment,

(C) the consents of at least 2/3 of the non-active members, if any, who are not represented by a bargaining agent in relation to the proposed payment, and

(D) the consents of such number or proportion, as determined by the superintendent, of the other beneficiaries who have an absolute entitlement to a pension or other benefits under the 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.

For the purpose of subclause (a)(iii), "bargaining agent" has the same meaning as in The Labour Relations Act, and a bargaining agent may represent its members in relation to a proposed payment of surplus, unless the relevant collective agreement provides otherwise.

26(2.2)     Repealed, S.M. 2005, c. 2, s. 17.

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.

Trustee Act does not apply

26(2.4)     If the requirements of this Act and the regulations have been met for making a payment of surplus in accordance with a proposal made under subclause (2.1)(a)(iii), the payment may be made despite the provisions of The Trustee Act.

Liability on termination or 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, up to the date of the termination or winding up, to meet the prescribed tests for solvency.

Notification of termination or winding up of plan

26(4)       Before a pension plan that has been or is required to be filed for registration under section 18 is terminated or wound up, the person responsible for filing the annual information return for the pension plan under that section must notify the commission in writing of the date as of which the pension plan will be terminated or wound up. That date may not be earlier than the date the commission is notified.

No reduction of accrued benefits

26(5)       A pension plan amendment that adversely affects the pension or the pension benefit credit of any person in respect of a period of employment or membership in the plan before the effective date of the amendment is void, unless it meets prescribed requirements and

(a) the amendment is necessary for the plan to comply with the Income Tax Act (Canada) and does not affect any pension or pension benefit credit any more than is necessary for the plan to comply; or

(b) the amendment

(i) is permitted by the terms of a multi-unit pension plan,

(ii) is necessary for the plan to meet prescribed solvency requirements, and does not affect any pension or pension benefit credit any more than is necessary for the plan to meet those requirements, and

(iii) is approved in writing by the superintendent.

S.M. 1992, c. 36, s. 11; S.M. 2005, c. 2, s. 17; S.M. 2011, c. 23, s. 6.

Definitions

26.1(1)     In this section,

"collective agreement" means a collective agreement as defined in The Labour Relations Act; (« convention collective »)

"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. (« employeur participant »)

Designation of multi-unit pension plan

26.1(2)     Upon the written request of the administrator of a pension plan, the superintendent may designate the plan as a multi-unit pension plan if the plan complies with this Act and the regulations and

(a) the plan is organized and administered for employees of one employer, who is required under two or more collective agreements to make contributions to the plan;

(b) the plan

(i) is organized and administered for employees of two or more employers who are required under one collective agreement to make contributions to the plan, and none of whom employs more than 95% of the active members of the plan, and

(ii) provides a pension determined with reference to periods of employment with those employers; or

(c) the plan

(i) is organized and administered for employees of two or more employers each of whom is required by two or more collective agreements to make contributions to the plan, and none of whom employs more than 95% of the active members of the plan, and

(ii) provides a pension determined with reference to periods of employment with those employers.

For the purpose of this subsection, two or more employers who are affiliated with each other for the purposes of The Corporations Act are to be treated as one employer.

26.1(3)     Repealed, S.M. 2005, c. 2, s. 18.

Board of trustees

26.1(4)     The administrator of a multi-unit pension plan must be a board of trustees with

(a) at least as many trustees representing members of the plan as there are trustees representing the participating employer or employers; and

(b) at least one trustee representing non-active members of the plan.

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.

Employment with two or more employers

26.1(6)     In determining when an employee who has been employed at different times by two or more participating employers is eligible or required to become a member of a multi-unit pension plan, all those periods of employment must be treated as one period of continuous employment with one employer.

26.1(7) and (8)  Repealed, S.M. 2005, c. 2, s. 18.

Forfeiture of minimal benefit

26.1(9)     If

(a) a member's pension benefit credit under a multi-unit pension plan is less than a prescribed amount;

(b) no contributions have been made by or behalf of the member for a period of two years; and

(c) the administrator is unable to locate the member, having made a reasonable effort to do so;

the member's pension benefit credit may be forfeited to the plan in accordance with the regulations.

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, in accordance with the regulations, the circumstances when a member ceases to be an active member of the plan;

(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.

No partial termination

26.1(12)    The suspension or cessation of contributions by a participating employer to a multi-unit pension plan does not constitute a partial termination of the plan unless

(a) the plan expressly provides that it does; or

(b) the superintendent, upon application by the administrator, declares that it does.

S.M. 1992, c. 36, s. 12; S.M. 2005, c. 2, s. 18; S.M. 2011, c. 23, s. 7.

Contents of plan

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

(a) repealed, S.M. 2011, c. 23, s. 8;

(b) provisions for computation of the employer's contributions and of the pension 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.

S.M. 2005, c. 2, s. 19; S.M. 2011, c. 23, s. 8.

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.

Notice to be given of any late payment by employer

28(3.1)     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 administrator or fund holder to whom the sum was to be remitted shall immediately notify the superintendent in writing.

Minister may enforce trust

28(4)       The minister may, on the government's behalf, enforce a trust created under this section even though the government is not a beneficiary of the trust.

Lien on employer's assets

28(5)       For the purpose of enforcing a trust created under this section, the government has a lien and charge on every estate or interest in real property and personal property of the employer, to secure payment of the following amounts:

(a) the contributions referred to in subsections (1) and (3) that have not been paid into the pension plan on the date the lien takes effect;

(b) all additional contributions referred to in subsections (1) and (3) that become due after the lien takes effect and before it is discharged, including any interest on the contributions that becomes due or payable after the lien takes effect;

(c) costs reasonably incurred by the superintendent

(i) for the registration and discharge of the lien, or

(ii) in retaking, holding, repairing, processing, preparing for disposition or disposing of property in respect of which the lien is registered.

Effect of failure to proceed

28(6)       The lien and its priority are not lost or impaired by the government's taking or failing to take proceedings to recover the amounts referred to in subsection (5), or by the employer's making a payment on account of those amounts.

Registration against real property

28(7)       The superintendent may register a lien in a land titles office against specific lands of the employer by filing a certificate or certificates, signed by the superintendent, stating

(a) the superintendent's address for service;

(b) the employer's full name and the amount of the contributions, interest and costs giving rise to the lien;

(c) the legal description of the land to be charged; and

(d) the provisions of this Act that give rise to the lien.

Registration on production

28(8)       A certificate is registerable upon being presented for registration. It does not require an affidavit of execution.

Enforcement of lien on real property

28(9)       Upon registration of the certificate in the land titles office, the lien becomes enforceable as if it were a certificate of judgment under The Judgments Act. The certificate does not need to be renewed and remains in effect until the superintendent files a notice of discharge.

Superintendent may postpone, amend or discharge lien

28(10)      The superintendent may, by filing the appropriate document in the land titles office in which the lien was registered,

(a) postpone the government's interest under the lien;

(b) amend the certificate to correct an error, but not to extend the lien to other land; or

(c) discharge the lien.

Registration against personal property

28(11)      The superintendent may register a lien or liens against personal property of the employer by filing in the Personal Property Registry a financing statement, or financing statements, that states

(a) the superintendent's address for service;

(b) the employer's full name and address; and

(c) the provisions of this Act that give rise to the lien.

Effect of registration

28(12)      Upon registration of the lien in the Personal Property Registry,

(a) the government is deemed to be a secured party under The Personal Property Security Act and the employer is deemed to be a debtor under that Act;

(b) the employer is deemed to have signed a security agreement stating that a security interest is taken in all the employer's present and after-acquired personal property, and the lien is deemed to be a perfected security interest in that property;

(c) the lien is enforceable under The Personal Property Security Act as if it were a lien under the agreement referred to in clause (b) and the employer were in default under that agreement; and

(d) The Personal Property Security Act and the regulations under that Act apply, with necessary changes, to the lien except as otherwise provided by this section.

Exceptions to priority

28(13)      The lien does not have priority over the following:

(a) a purchase money security interest in collateral, as defined in The Personal Property Security Act, that was perfected when the debtor obtained possession of the collateral or within 15 days after the debtor obtained possession of it;

(b) a mortgage that is registered in a land titles office before the lien is registered under this section except in respect of any advance made under the mortgage after the certificate is registered;

(c) a garage keeper's lien under The Garage Keepers Act and a lien that, under any other Act, may be enforced as a lien under The Garage Keepers Act;

(d) a security interest that was perfected by registration under The Personal Property Security Act before the lien is registered under this section.

Superintendent may postpone, amend, renew or discharge lien

28(14)      The superintendent may, by filing the appropriate document in the Personal Property Registry,

(a) postpone the government's interest under a financing statement; or

(b) amend, renew or discharge a financing statement.

Payment of trust money

28(15)      Where the government recovers any money under this section, the money must be paid, after deductions of any costs and disbursements incurred by the government in recovering the money, to the fund holder for the pension plan as "fund holder" is described in the regulations.

S.M. 1997, c. 15, s. 5; S.M. 2005, c. 2, s. 20; S.M. 2011, c. 23, s. 9.

Corporate director's liability for unpaid contributions

28.0.1(1)   If an employer that is a corporation fails to pay contributions to a pension plan when they become due, the persons who are the directors of the corporation at the time of the failure are liable to pay the following contributions in relation to that failure:

(a) employee contributions referred to in subsection 28(1); and

(b) employer contributions referred to in subsection 28(3), other than special payments required to be made under the regulations to amortize an unfunded liability or a solvency deficiency in the plan.

Subject to subsections (2) to (5), the liability to pay the contributions may be enforced against any or all of those persons.

Limits on liability

28.0.1(2)   A person is not liable under subsection (1) unless one of the following has occurred:

(a) a certificate for the amount of the corporation's liability referred to in subsection (1) has been filed in the Court of Queen's Bench under subsection 8.1(1) and execution for that amount has been returned unsatisfied in whole or in part;

(b) the corporation has been dissolved or has started liquidation or dissolution proceedings in any jurisdiction;

(c) a receiver, trustee or other similar person has taken control or possession of the corporation's property;

(d) the corporation has made an assignment, or a receiving order has been made against it, under the Bankruptcy and Insolvency Act (Canada);

(e) a compromise or arrangement has been proposed under the Companies' Creditors Arrangement Act (Canada) or a proposal has been made under the Bankruptcy and Insolvency Act (Canada) in respect of the corporation.

Prudent director not liable

28.0.1(3)   A person is not liable under subsection (1) if he or she exercised the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances to prevent the corporation's failure to pay contributions.

Two-year limitation period

28.0.1(4)   A person is not liable under subsection (1) unless

(a) the superintendent makes an order under clause 8(3)(b.1) requiring the person to pay money to a pension plan; and

(b) serves a copy of the order in accordance with section 8 on the person no more than two years after he or she last ceased to be a director.

Amount recoverable

28.0.1(5)   Where execution referred to in clause (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.

Manager liable after board resigns or is removed

28.0.1(6)   A person who manages or supervises the management of a corporation's business and affairs and who is deemed by section 114.1 of The Corporations Act to be a director of the corporation for the purpose of that Act is liable under subsection (1) as if the person were a director of the corporation.

Corporate director may recover

28.0.1(7)   If a director or former director of a corporation who is liable under this section pays contributions to a pension plan, he or she

(a) is entitled to recover the amount paid as a debt owing to the person by the corporation; and

(b) is entitled to contribution in relation to that amount from other directors or former directors who are liable under this section.

Lien on assets

28.0.1(8)   When a director or former director of a corporation is liable under this section, the government has a lien and charge on every estate or interest in real property and personal property of the director or former director, to secure payment of all amounts payable by the director or former director. For that purpose, subsections 28(6) to (15) apply with necessary changes.

S.M. 2011, c. 23, s. 10.

Who may be administrator

28.1(1)     A pension plan must be administered by the following person or body:

(a) in the case of a multi-unit pension plan, by a board of trustees in accordance with subsection 26.1(4);

(b) in the case of a jointly trusteed plan, by a board of trustees with at least as many trustees representing members of the plan as there are trustees representing the employer;

(c) in the case of a simplified money purchase pension plan, by an administrator as defined in the regulations;

(d) in the case of a plan with fewer than the prescribed number of members, by the employer;

(e) where an Act of the Legislature makes a board, agency or commission responsible for its administration, by that board, agency or commission;

(f) in any other case, by a pension committee or as otherwise prescribed.

Administration by superintendent or appointee

28.1(1.1)   Subsection (1) does not apply to a pension plan while it is being administered by the superintendent or a person appointed under subsection 8(3).

Pension committee

28.1(1.2)   A pension plan that is required by clause (1)(f) to be administered by a pension committee must provide for the appointment or election of the committee members in accordance with the regulations, and, in doing so, must ensure that

(a) the active members, as a group, are required to appoint or elect at least one voting member of the committee;

(b) the non-active members, as a group, are required to appoint or elect at least one voting member of the committee;

(c) each of those groups may appoint or elect one additional non-voting member of the committee; and

(d) committee members are given prescribed rights and obligations.

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 the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person.

Investing pension assets

28.1(2.1)   The administrator of a pension plan shall invest the assets of the pension fund, and manage those investments, in accordance with the regulations and in a manner that a reasonable and prudent person would apply in investing and managing a portfolio of investments of a pension fund.

Non-financial considerations

28.1(2.2)   Unless a pension plan otherwise provides, an administrator who uses a non-financial criterion to formulate an investment policy or to make an investment decision does not thereby commit a breach of trust or contravene this Act if, in formulating the policy or making the decision, he or she has complied with subsections (2) and (2.1).

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), (2.1), (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 board or committee

28.1(10)    If the administrator is a board, committee or other body of persons, subsection (9) applies with necessary modifications to each member of that body.

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; S.M. 2005, c. 2, s. 21.

Administrator to provide information

29          The administrator of a pension plan must provide information about the plan and benefits under the plan in accordance with the regulations to such persons and in such circumstances as are prescribed.

S.M. 2005, c. 2, s. 22.

Administrator to make documents available

30          The administrator of a pension plan must make plan documents and related documents available in accordance with the regulations to such persons and in such circumstances as are prescribed.

S.M. 2005, c. 2, s. 22; S.M. 2008, c. 42, s. 75.

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 on breakdown of relationship

31(2)       Subject to subsections (3), (4) and (6), a member's pension or, if the pension has not commenced, the member's or former member's pension benefit credit must be divided in accordance with the regulations if

(a) pursuant to an order of the Court of Queen's Bench made under The Family Property Act, family assets of the member or former member or his or her spouse, former spouse or common-law partner are required to be divided;

(b) pursuant to a written agreement between the member or former member and his or her spouse, former spouse or common-law partner, their family assets are divided; or

(c) a division of the pension or the pension benefit credit, as the case may be, is required by

(i) an order of a court of competent jurisdiction in another province or territory of Canada, or

(ii) an order of the Court of Queen's Bench made under subsection (3.4).

Manner of division

31(2.1)     The division of a pension or pension benefit credit under subsection (2) must be made in accordance with the regulations even if an agreement or court order requires it to be made in a different manner.

Limitation

31(3)       Subsection (2) applies only to

(a) spouses who began living separate and apart from each other after 1983; and

(b) common-law partners who

(i) began living separate and apart from each other on or after June 30, 2004,

(ii) began living separate and apart from each other after 1983 and before June 30, 2004, if a declaration was filed in respect of the relationship under subsection (5) as it read before it was repealed on June 30, 2004, or

(iii) were living separate and apart on June 30, 2004, but resumed cohabiting with each other for a period of at least 90 days after that day.

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

Application for court order

31(3.2)     A common-law partner may apply to the Court of the Queen's Bench for an order requiring a member's pension or a member's or former member's pension benefit credit to be divided under subsection (2), if

(a) the applicant and the member or former member are common-law partners referred to in clause (3)(b);

(b) they cohabited with each other for at least one year but less than three years while neither of them was married, and their relationship was never registered under section 13.1 of The Vital Statistics Act; and

(c) their last common habitual residence was in Manitoba.

Limitation period

31(3.3)     The application under subsection (3.2) must be made

(a) within three years after the common-law partner and the member or former member last began to live separate and apart; or

(b) within six months after the grant of letters probate of the member's or former member's will or of letters of administration;

whichever occurs first.

Court may order division

31(3.4)     Upon being satisfied that the application meets the requirements of subsections (3.2) and (3.3), the court may order the member's pension or the member's or former member's pension benefit credit, as the case may be, to be divided under subsection (2).

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, 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, if that is permitted by the terms of that other pension plan; or

(b) to a prescribed retirement savings plan or a prescribed retirement benefit plan.

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

Opting out

31(6)       A member or former member of a pension plan and a person who is entitled to a division of the member's pension or the member's or former member's pension benefit credit may, after each has received

(a) independent legal advice; and

(b) prescribed information in accordance with the regulations;

enter into a written agreement, containing prescribed terms, not to divide the pension or pension benefit credit between them. Subsection (2) no longer applies to require that division when the agreement is filed with the administrator who would otherwise be required to give effect to the division.

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

31(8)       Repealed, S.M. 2005, c. 2, s. 23.

Waiver after death of member

31(9)       A person who is entitled to a division under subsection (2) in respect of a member or former member who has died, or by obtaining a court order would be so entitled, may, after being given prescribed information in accordance with the regulations, waive the entitlement by signing and filing with the administrator a waiver in a form approved by the superintendent.

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 or other beneficiary of a pension plan or the owner of a prescribed plan, the member, other beneficiary or owner 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 his or her rights under the plan, the lesser of

(a) the amount determined by the formula

A − B

where

A

is the pension benefit credit on that day, and

B

is the total of all amounts each of which is the portion of the 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, other beneficiary's or owner's entitlement if the amount of the entitlement were determined under this clause.

S.M. 1995, c. 3, s. 39; S.M. 2005, c. 2, s. 24.

32          Repealed.

S.M. 2005, c. 2, s. 25.

Declaration by commission as to termination 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 terminated 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 terminated in whole or in part, it shall notify the administrator by registered mail of the declaration.

Objection to declaration

33(3)       The administrator may object to the declaration by serving on the commission, within 60 days after the date of mailing of the declaration, a notice of objection, in a form approved by the superintendent, setting out the reasons for the objection and all the relevant facts.

Review on objection

33(4)       As soon as practicable after receiving a notice of objection, the commission must

(a) reconsider its declaration;

(b) confirm, revoke or vary the declaration; and

(c) notify the administrator by registered mail of its decision.

S.M. 2005, c. 2, s. 26; S.M. 2011, c. 23, s. 11.

Regulations re successor employers or plans

34          The Lieutenant Governor in Council may make regulations

(a) prescribing circumstances in which an employer or a pension plan is to be treated as the successor in relation to another employer or plan;

(b) respecting the rights and obligations of employers, and of pension plan administrators and members, in circumstances where an employer or pension plan is to be treated as a successor in relation to another employer or plan.

S.M. 2005, c. 2, s. 27.

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 administrator 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 administrator of its actions by registered mail.

S.M. 1992, c. 36, s. 14; S.M. 2005, c. 2, s. 28.

Appeal to Court of Appeal

36(1)       Where an administrator 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 administrator 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.

S.M. 2005, c. 2, s. 29.

PART III

GENERAL PROVISIONS

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 the commuted value of a pension;

(b) respecting the variation and co-ordination of pension benefits and pensions 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) respecting the investment of pension fund moneys and the management of those investments;

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

(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) respecting the withdrawal of money by non-residents from pension plans and prescribed plans under section 21.3;

(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) respecting benefits under section 21.5, and related adjustments to pension benefits;

(e.6) prescribing circumstances or conditions, in addition to those provided for in the Act, under which a person entitled to a pension may withdraw or surrender all or part of a pension, an interest in a pension or the commuted value of a pension;

(e.7) respecting the commutation of a small pension as permitted or required by subsection 21(4);

(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 pension 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 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;

(g.1) prescribing classes of employees for the purpose of subsection 21(18.1);

(g.2) prescribing plans, schemes or arrangements that are to be excluded from the definition "pension plan" under subsection 1(1);

(g.3) specifying provisions of this Act or the regulations which do not bind the Crown;

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

(h.1) respecting reciprocal agreements under section 11, including

(i) specifying circumstances under which any provision of this Act applies to a pension plan or class of pension plans despite a provision of a reciprocal agreement that has a contrary effect,

(ii) providing for any matter the Lieutenant Governor in Council considers necessary or advisable for the implementation of an agreement under section 11;

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

(j) respecting payments under subsection 21(6) to persons with a shortened life expectancy;

(k) respecting the termination or winding up of a pension plan, including the disposition of the assets of a pension plan that is terminated or wound up;

(l) respecting the disposition of surplus in a pension plan;

(m) establishing reporting requirements for employers and administrators;

(n) repealed, S.M. 2005, c. 2, s. 31;

(n.1) respecting the registration of pension plans;

(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) respecting the provision of information under section 29 and documents under section 30;

(r) repealed, S.M. 2005, c. 2, s. 31;

(s) respecting the division of pensions or pension benefit credits under 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;

(s.2) respecting the transfer of a portion of a pension benefit credit under subsection 31(4), including prescribing time limits for exercising an option to transfer under that subsection and specifying the consequences of a failure to comply with a time limit;

(t) respecting the provision of information in relation to

(i) a waiver under subsection 21(26.3), 23(4) or 31(9),

(ii) an agreement under subsection 31(6) that a pension or pension benefit credit is not to be divided,

(iii) a withdrawal under section 21.3, or

(iv) a transfer under section 21.4;

(u) repealed, S.M. 2005, c. 2, s. 31;

(v) establishing rates of interest, or the manner of determining rates of interest, for the purposes of this Act, and respecting the manner in which interest is to be calculated and credited;

(w) respecting the provision of information relating to a pension plan

(i) by an employer to the administrator of the plan, to enable the administrator to comply with the terms of the plan, this Act and the regulations, or

(ii) by an employer to his or her employees;

(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;

(z) defining "simplified money purchase pension plan" and "administrator" in relation to a simplified money purchase pension plan;

(aa) prescribing the number of members for the purpose of clause 28.1(1)(d);

(bb) respecting pension committees, and the appointment of pension committee members;

(cc) for the purpose of section 21.2, respecting the conversion of optional ancillary contributions into optional ancillary benefits;

(dd) respecting procedures and related matters for the conduct of hearings, reviews and appeals by the commission;

(ee) respecting administrative penalties under section 37.1, including but not limited to, regulations

(i) prescribing provisions of this Act or the regulations for which a notice of administrative penalty may be issued,

(ii) prescribing the form and content of the notice of administrative penalty and the notice of appeal,

(iii) respecting the determination of amounts of administrative penalties, which may vary according to the nature and frequency of the contravention and the number of members affected.

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; S.M. 2011, c. 23, s. 12.

Administrative penalty

37.1(1)     Subject to the regulations, an administrative penalty under this section may be imposed in respect of a person's failure to comply with

(a) an order of the superintendent made under section 8 requiring the person to comply with a provision of the Act or regulations; or

(b) a provision of this Act or the regulations prescribed by regulation.

How penalty may be imposed

37.1(2)     The superintendent may impose the administrative penalty by issuing a notice of administrative penalty and serving it on the person liable to pay it.

Amount of penalty

37.1(3)     The amount of the penalty for non-compliance is the amount prescribed by regulation, to be determined by taking into account such factors as the number of members affected by the contravention, the nature of the contravention and the frequency of contraventions.

Maximum penalty

37.1(4)     The maximum administrative penalty is $10,000.

Content of notice

37.1(5)     The notice of administrative penalty must set out

(a) the name of the person liable to pay the penalty;

(b) the amount of the penalty;

(c) when and how the penalty must be paid;

(d) a description of the non-compliance, including a reference to the provision not being complied with; and

(e) a description of the person's right to appeal the penalty to the commission.

Serving the notice

37.1(6)     The notice of administrative penalty must be served on the person required to pay the penalty. The notice may be served personally or may be sent by registered mail to the person's last known address.

Superintendent may recover penalty

37.1(7)     The penalty payable under this section is a debt due to the government and may be recovered by the superintendent in the same manner as contributions may be recovered under this Act.

No offence to be charged if penalty is paid

37.1(8)     A person who pays an administrative penalty for an incident of non-compliance cannot be charged with an offence in respect of that non-compliance, unless the non-compliance continues after the penalty is paid.

S.M. 2011, c. 23, s. 13.

Appeal to commission

37.2(1)     Within 14 days after being served with a notice, the person required to pay the administrative penalty may appeal the matter to the commission by filing a notice of the appeal. The requirement to pay the penalty is stayed until the commission decides the matter.

Notice of hearing

37.2(2)     Upon receiving a notice of appeal, the commission must

(a) fix a date, time and place for hearing the appeal; and

(b) give the person appealing, and the superintendent, written notice of the hearing at least five days before the hearing date.

Decision of the commission

37.2(3)     After hearing the appeal, the commission must

(a) confirm or revoke the administrative penalty; or

(b) vary the amount of the penalty if the commission considers that it was not established in accordance with the regulations.

S.M. 2011, c. 23, s. 13; S.M. 2012, c. 40, s. 34.

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 administrator shall comply with

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

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

(c) an order under section 59.3 of The Family Maintenance Act to preserve assets.

S.M. 1995, c. 3, s. 41; S.M. 2005, c. 2, s. 32.

Review every five years

38.2        The commission must review this Act at least once every five years after 2004 and report its findings and recommendations to the minister.

S.M. 2005, c. 2, s. 33.

39 and 40   Repealed.

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

 

 


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