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The Pension Benefits Act
This is an unofficial archived version of The Pension Benefits Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.

R.S.M. 1987, 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

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

"common-law relationship" means the relationship between a man and a woman who are common-law spouses; ("relation maritale")

"common-law spouse" means a person publicly represented by another person as the spouse of that other person

(a) where either of the persons is prevented by law from marrying the other, for a period of not less than three years, or

(b) where neither of them is prevented by law from marrying the other, for a period of not less than one year; ("conjoint de fait")

"deferred life annuity" means a life annuity that commences at retirement age under a pension plan but in any event before the 71st birthday of the annuitant; ("rente viagère différée")

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

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

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

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

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

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

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

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

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

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

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

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

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

"qualification date" means

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

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

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

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

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

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

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

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

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

Period of common-law relationship.

1(2)

For the purposes of applying this Act and the regulations to a pension plan or a member of a pension plan, the period during which a member of a pension plan shall be considered a party to a common-law relationship commences on the day on which the administrator of the pension plan receives a declaration in the form prescribed in the regulations declaring that the member is a party to a common-law relationship with another person identified in the declaration and ending on the day the member notifies the plan administrator in writing that the existence of the common-law relationship has been terminated.

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, the provision of this Act prevails.

PART I

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.

Powers of inspection.

8

The superintendent or his duly authorized representative may, at any reasonable time

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

(b) require any employer, insurer, trustee of a pension plan or other person to furnish, in a form acceptable to the commission, such information as the commission considers necessary for the purpose of ascertaining whether this Act and the regulations have been or are being complied with.

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

The commission shall

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

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

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

(d) cancel the registration of any pension plan

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

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

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

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

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

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

Powers of commission respecting reciprocal agreements.

11

With the approval of the Lieutenant Governor in Council, the commission may

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

(b) delegate to the pension commission or the government of a designated province such functions and powers under this Act as the commission may determine:

(c) enter into agreements with authorized representatives of the governments of other provinces or territories of Canada and of the Government of Canada, or any of them, respecting the establishment of an association of pension commissions in Canada and authorizing such an association to carry out certain duties and functions of the commission for and on behalf of the commission.

Audit.

12

The Provincial Auditor 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.

Annual report.

13(1)

The commission shall make an annual report of the affairs of the commission to the minister.

Tabling report.

13(2)

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

Actions for deducting amounts.

14

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

Certain agreements void.

15

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

Pension agency.

16

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

Definitions.

17(1)

In this section,

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

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

Effect of designation of successor to beneficiary.

17(2)

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

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

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

Alteration of designations.

17(3)

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

Where Insurance Act applies.

17(4)

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

PART II

Registration of plans established before July 1, 1976.

18(1)

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

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

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

Registration of plans established after July 1, 1976.

18(2)

Subject to subsection (5), every employer who establishes a pension plan for employees in Manitoba on or after July 1, 1976 in respect of employment in Manitoba shall, unless under the terms of the plan the employer is not required to make contributions to or under the plan,

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

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

Filing of supplemental plans.

18(3)

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

Annual return.

18(4)

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

Where employer not involved with administering plan.

18(5)

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

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

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

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

Acceptance for registration.

19

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

Procedure on refusal to register.

20

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

Requirements respecting deferred life annuities.

21(1)

A pension plan filed for registration in accordance with section 18 shall provide contractually

(a) that a member of the pension plan who has been in the service of the employer for a continuous period of 10 years, for part of which period he was employed in the province, or has been a member of the plan for a continuous period of 10 years, for part of which period he was employed in the province, whichever first occurs, is entitled upon termination of his employment or upon transfer of his place of employment to a place outside the province or upon termination of his membership in the plan prior to his attaining retirement age, to a deferred life annuity commencing in accordance with the terms of the pension plan, as those terms were as of the date of termination of his employment, as though he had continued to be a member of the pension plan and that (except for pension benefits provided by voluntary additional benefits) is not less than the pension benefits in respect of service as an employee after July 1, 1976,

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

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

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

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

Requirements respecting deferred life annuities for 1985.

21(2)

Every pension plan shall provide

(a) that a member of the pension plan who has been in the service of the employer for a continuous period of five years, for part of which period he was employed in the province, or has been a member of the plan for a continuous period of five years, for part of which period he was employed in the province, whichever first occurs, is entitled upon termination of his employment or upon transfer of his place of employment to a place outside the province or upon termination of his membership in the plan prior to his attaining retirement age, to a deferred life annuity commencing in accordance with the terms of the pension plan, as those terms were as of the date of termination of his employment, as though he had continued to be a member of the pension plan and that (except for pension benefits provided by voluntary additional benefits) is not less than the pension benefits in respect of service as an employee after January 1, 1985,

(i) under the terms of the pension plan in respect of service on or after January 1, 1985, or

(ii) under an amendment to the terms of the pension plan made on or after January 1, 1985, or

(iii) by the creation of a new pension plan on or after January 1, 1985; and

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

No surrender or commutation.

21(3)

Notwithstanding any provision of a pension plan,

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

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

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

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

(i) the termination of his employment, or

(ii) the termination or winding up of the plan, prior to his attaining retirement age and in circumstances where he is not subject to clause (l)(b).

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

21(4)

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

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

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

(c) payment to an employee of an amount equal to the commuted value of the deferred life annuity or pension benefit to which the employee is entitled if the amount thereof payable to the employee at normal retirement age is less than $25. a month payable during his lifetime.

Partial commutation permitted.

21(5)

Notwithstanding subsections (1) and (3), where a pension plan so provides, an employee to whom clause (l)(a) or (l)(b) applies may receive in partial discharge of his rights under the plan as a lump sum, upon or after termination of employment or membership in the pension plan prior to his attaining normal retirement age as defined by the plan, an amount that in total does not exceed 25% of the commuted value of the deferred life annuity prescribed by subsection (1) in respect of service as an employee prior to January 1, 1985.

Alternative settlements.

21(6)

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

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

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

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

Normal retirement age.

21(7)

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

Vesting on retirement at normal retirement age.

21(8)

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

Continuing after retirement age.

21(9)

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

Early retirement provision.

21(10)

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

Employers share of deferred life annuity.

21(11)

Notwithstanding clause (l)(b), every pension plan shall provide that not less than 1/2 of the commuted value of any deferred life annuity provided in accordance with clause (2)(a) shall be provided by the contributions to the plan by the employer and where a member of a pension plan becomes entitled to a deferred life annuity under clause (2)(a), if the value of his contributions and accumulated interest thereon exceeds 1/2 of the commuted value of the deferred life annuity, the amount of the difference shall at the option of the member either

(a) be refunded to the member; or

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

Effect of temporary suspension of employment.

21(12)

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

(a) eligibility for membership in the pension plan;

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

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

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

Right to transfer benefits.

21(13)

Notwithstanding subsections (1), (2) and (6), no pension plan shall deny the right

(a) of an employee, upon termination of employment or upon termination of membership in the pension plan, otherwise than where the termination results in the commencement of payment of a pension forthwith; or

(b) of the surviving spouse of an employee other than the surviving spouse of an employee who has commenced receiving a pension under the pension plan;

to transfer, in a manner prescribed in the regulations, the commuted value of the accrued benefits under the pension plan.

Integration with government plan.

21(14)

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

Prohibition against reductions in pension.

21(15)

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

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

21(16)

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

Formula

Maximum amount of reduction = .03 B x Y

In this formula

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

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

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

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

Reduction for OAS prohibited.

21(17)

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

Discrimination based on sex prohibited.

21(18)

No pension plan shall provide for or permit

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

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

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

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

Compulsory eligibility and membership.

21(19)

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

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

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

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

Exemption.

21(20)

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

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

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

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

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

to become a member of the pension plan.

Winding up plan.

21(21)

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

Determination of benefits on winding up of plan.

21(22)

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

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

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

Reduction of additional benefits.

21(23)

Notwithstanding subsections (1) and (3) and notwithstanding any provision of a pension plan, upon the termination or winding up of a pension plan where,

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

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

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

Formula for contributions and benefits.

21(24)

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

Benefit not to be less than contributions.

21(25)

Notwithstanding any provision of this section and any provision of a pension plan, where,

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

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

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

Death of member.

21(26)

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

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

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

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

Refunds.

22

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

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

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

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

Joint pensions.

23(1)

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

Actuarial reduction for joint pension.

23(2)

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

Waiver of joint pension.

23(3)

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

Exemption for persons separated.

23(4)

For the purposes of applying subsection

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

Definitions.

23(5)

For the purposes of this section,

"married" includes being a party to a common law relationship; ("marié")

"member" includes a former member of a pension plan; ("participant") and

"spouse" where used to refer to the spouse of a member includes a person who is a party with the member to a common law relationship. ("conjoint")

Benefit under division of assets.

23(6)

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

No termination of survivor benefits on marriage.

24

No pension plan shall provide that a pension or pension benefit, payable to the surviving spouse of a member of the pension plan or former member of the pension plan who dies, terminates in the event of the remarriage of the surviving spouse.

Rate of interest on defined benefit pension plan.

25(1)

Every defined benefit pension plan shall provide that after January 1, 1984, interest shall be credited to contributions made after December 31, 1983, of members of the pension plan not less frequently than once every 12 months at either

(a) a rate within 1% of the income earned on the fund during the 12 months calculated on a book value of the assets of the fund or on the market value of the assets of the fund, as may be allowed by the superintendent for the purposes of that particular defined benefit pension plan; or

(b) a rate equal to the rate paid by a financial institution approved by the superintendent for the purposes of that particular defined benefit pension plan on deposits or investments with the financial institution of a type or class approved by the superintendent for the purposes of that particular defined benefit pension plan.

Consistent methods of calculating interest.

25(2)

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

Interest on other plans.

25(3)

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

Funding and solvency of plans.

26(1)

A pension plan filed for registration in accordance with section 18 shall contractually provide for,

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

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

Restriction on surplus refunds.

26(2)

No funds, including surplus, in a pension plan shall be paid out of the plan to an employer, unless the commission believes it equitable to do so and consents thereto in writing.

Liability on winding up of plan.

26(3)

Upon the termination or winding up of a pension plan filed or required to be filed for registration under section 18, the employer is liable to pay all amounts that would otherwise have been required to be paid to meet the tests for solvency prescribed by the regulations, up to the date of such termination or winding up, to the insurer, administrator or trustee of the pension plan.

Notification of termination of plan.

26(4)

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

No reduction of credits.

26(5)

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

Contents of plan.

27

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

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

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

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

Trust for contributions.

28(1)

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

Payroll deductions.

28(2)

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

Employer's contributions in trust.

28(3)

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

Enforcement of trust.

28(4)

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

Payment of trust moneys.

28(5)

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

Report on late payments.

28(6)

Where an employer fails to remit any amount which he is required under a pension plan to remit to the trustee or the person charged with the investment of the funds of the pension plan within 60 days after the date on which the amount is required to be remitted, the trustee or the person charged with the investment of the funds of the pension plan shall forthwith notify the superintendent in writing of the failure in the form prescribed by the regulations.

Information by employers.

29

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

Inspection of plan by members.

30

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

Pension benefits not alienable.

31(1)

Subject to subsection (2), moneys payable under a pension plan shall not be assigned, charged, anticipated or given as security and are exempt from execution, seizure or attachment, and any transaction purporting to assign, charge, anticipate or give as security such moneys is void.

Division of pension benefits on marriage breakup.

31(2)

Subject to subsection (3), where

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

(b) pursuant to an agreement between spouses, family assets of the spouses are divided between the spouses; or

(c) pursuant to an agreement between two persons who have been parties to a common-law relationship and who have terminated the relationship, assets which, if the parties had been spouses, would have been family assets of the parties, are divided between the parties;

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

Effective date of subsection (2).

31(3)

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

(a) spouses; or

(b) parties to a common-law relationship;

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

Transfer of marital property portions.

31(4)

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

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

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

Establishment of advisory committees.

32(1)

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

Purposes of committee.

32(2)

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

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

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

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

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

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

(iii) the documentation for the pension plan,

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

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

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

(vii) the compliance with the requirements of this Act and the regulations with respect to reporting, filing and registration, and (viii) the provision of relevant information to members of the pension plan in compliance with this Act and the regulations; and

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

Limitation on committee's powers.

32(3)

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

Declaration by commission as to winding up of plan.

33(1)

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

Notice of declaration.

33(2)

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

Objection to winding up.

33(3)

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

Continuation of benefits with successor employer.

34(1)

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

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

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

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

Re-employment not termination of membership.

34(2)

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

Service deemed continuous.

34(3)

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

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

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

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

Objection to refusal to register, etc.

35(1)

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

Service of notice of objection.

35(2)

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

Review on objection.

35(3)

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

Appeal to Court of Appeal.

36(1)

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

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

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

Filing appeal.

36(2)

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

Copies to superintendent.

36(3)

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

Relevant material to be sent to court.

36(4)

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

Disposal of appeal.

36(5)

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

Effect of decision.

36(6)

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

PART III

Regulations.

37

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

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

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

(c) prescribing the classes of investments and loans, both qualitative and quantitative, in which pension fund moneys heretofore or hereafter accumulated may be invested, and governing the making of such investments and loans;

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

(e) prescribing the conditions under which, upon termination of employment of an employee, upon termination of an employee's membership in a pension plan or upon the termination or winding up of a pension plan, pension benefit credits may be held in trust by the administrator, insurer or trustee of the pension plan, or transferred to the administrator, insurer or trustee of another pension plan or to a registered retirement savings plan or to the commission or to the agency designated under section 16;

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

(g) designating employees or pension plans, or any class thereof, that are excepted from the application of this Act or any provision thereof or the regulations or any provision thereof, or both;

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

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

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

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

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

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

(n) prescribing forms and providing for their use;

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

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

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

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

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

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

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

(v) fixing a rate of interest for the purposes of section 22;

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

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 $200. and not more than $10,000.

Payment of amounts withheld.

38(2)

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

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.

Clause 21(2)(a) am.

39

Clause 21(2)(a) is amended by striking out "five" where it appears twice therein and substituting therefor, in each case, "two".

Coming into force of s. 39.

40

Section 39 comes into force on the earlier of

(a) January 1, 1990; or

(b) a date earlier than January 1, 1990 to be fixed by proclamation.