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S.M. 2011, c. 23
Bill 33, 5th Session, 39th Legislature
The Pension Benefits Amendment Act
(Assented to June 16, 2011)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Pension Benefits Act is amended by this Act.
Subsection 8(3) is amended by adding the following after clause (b):
(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;
Subsection 8(5) is replaced with the following:
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.
The following is added after subsection 8(9):
The superintendent has standing to appear before the commission on any matter before it, and may be represented by counsel.
Subsection 8(11) is replaced with the following:
Appeal from commission's decision
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.
The following is added after subsection 8(11):
Commission and superintendent entitled to be heard on appeal
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.
The following is added after section 8:
Superintendent may file order in court
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.
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
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.
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).
Reciprocal enforcement of orders
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
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.
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.
Subsection 11(3) is replaced with the following:
Reciprocal agreements re application of laws
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.
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
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.
The section heading for subsection 21(21) is replaced with "Termination or winding up of plan".
Subsection 21(22) of the English version is amended by striking out "winding-up" wherever it occurs and substituting "winding up".
Subsection 26(2.3) of the English version is amended in the part after clause (b) by striking out "winding-up" and substituting "winding up".
The section heading for subsection 26(3) is replaced with "Liability on termination or winding up of plan".
Subsection 26(4) is replaced with the following:
Notification of termination or winding up of plan
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.
Clauses 26.1(11)(a) and (b) of the English version are amended by striking out "winding-up" and substituting "winding up".
Subsections 28(4) and (5) are replaced with the following:
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.
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.
Subsection 28(6) is renumbered as subsection 28(3.1).
The following is added as subsections 28(6) to (15):
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
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.
A certificate is registerable upon being presented for registration. It does not require an affidavit of execution.
Enforcement of lien on real property
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
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
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.
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.
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
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.
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.
The following is added after section 28:
Corporate director's liability for unpaid contributions
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.
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.
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.
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.
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
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
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.
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.
Subsection 33(1) is amended
(a) in the section heading, by striking out "winding up" and substituting "termination"; and
(b) in the section, by striking out "wound up" and substituting "terminated".
Subsection 33(2) is amended by striking out "wound up" and substituting "terminated".
Clause 37(a) is amended by striking out "and pension benefits".
Clause 37(b) is amended by adding "and co-ordination" after "variation".
The following is added after clause 37(h):
(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;
Clause 37(k) is replaced with the following:
(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;
The following is added after clause 37(s.1):
(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;
The following is added after clause 37(cc):
(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.
The following is added after section 37:
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.
The superintendent may impose the administrative penalty by issuing a notice of administrative penalty and serving it on the person liable to pay it.
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.
The maximum administrative penalty is $10,000.
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.
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
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
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.
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.
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.
After hearing the appeal, the commission must determine whether or not the person has failed to comply with the superintendent's order and either
(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.
This Act comes into force on January 1, 2012.