C-5513853-54Elizabeth II2004-2005An Act to establish a program for making payments to individuals in respect of wages owed to them by employers who are bankrupt or subject to a receivershipWage Earner Protection Program ActWage Earner Protection Program201303
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W-0.847, s. 12005[Enacted by section 1 of chapter 47 of the Statutes of Canada, 2005, in force July 7, 2008, see SI/2008-78.]SHORT TITLEShort titleThis Act may be cited as the Wage Earner Protection Program Act.INTERPRETATIONDefinitionsThe following definitions apply in this Act.eligible wagessalaire admissibleeligible wages meanswages other than severance pay and termination pay that were earned during the longer of the following periods:the six-month period ending on the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer, andthe period beginning on the day that is six months before the day on which a proposal under Division I of Part III of the Bankruptcy and Insolvency Act is filed by or in respect of the employer or the day on which proceedings under the Companies’ Creditors Arrangement Act are commenced and ending on the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer; andseverance pay and termination pay that relate to employment that ended during the period referred to in paragraph (a).wagessalairewages includes salaries, commissions, compensation for services rendered, vacation pay, severance pay, termination pay and any other amounts prescribed by regulation.Employers subject to a receivershipFor the purposes of this Act, an employer is subject to a receivership when any property of the employer is under the possession or control of a receiver.Meaning of receiverIn this Act, receiver means a receiver within the meaning of subsection 243(2) of the Bankruptcy and Insolvency Act.Words and expressionsUnless otherwise provided, words and expressions used in this Act have the same meaning as in the Bankruptcy and Insolvency Act.Related personsDespite subsection 4(5) of the Bankruptcy and Insolvency Act,for the purposes of paragraph 6(d), an individual is considered to deal at arm’s length with a related person if the Minister is satisfied that, having regard to the circumstances — including the terms and conditions of the individual’s employment with the former employer, their remuneration and the duration, nature and importance of the work performed for the former employer — it is reasonable to conclude that the individual would have entered into a substantially similar contract of employment with the former employer if they had been dealing with each other at arm’s length; andfor the purposes of subsection 21(4), individuals who are related to each other are, in the absence of evidence to the contrary, deemed not to deal with each other at arm’s length while so related.
2005, c. 47, s. 1 “2”;
2007, c. 36, s. 83;
2009, c. 2, s. 342;
2011, c. 24, s. 163;
2012, c. 19, s. 697(E).
Previous VersionDESIGNATION OF MINISTERPower of Governor in CouncilThe Governor in Council may designate a member of the Queen’s Privy Council for Canada to be the Minister for the purposes of this Act.PROGRAM ESTABLISHEDEstablishmentThe Wage Earner Protection Program is established to make payments to individuals in respect of wages owed to them by employers who are bankrupt or subject to a receivership.ELIGIBILITY FOR PAYMENTSConditions of eligibilityAn individual is eligible to receive a payment ifthe individual’s employment ended for a reason prescribed by regulation;the former employer is bankrupt or subject to a receivership; andthe individual is owed eligible wages by the former employer.[Repealed, 2009, c. 2, s. 343]
2005, c. 47, s. 1 “5”;
2007, c. 36, s. 84;
2009, c. 2, s. 343.
Previous VersionExceptionsAn individual is not eligible to receive a payment in respect of any wages earned during, or that otherwise relate to, a period in which the individualwas an officer or director of the former employer;had a controlling interest within the meaning of the regulations in the business of the former employer;occupied a managerial position within the meaning of the regulations with the former employer; orwas not dealing at arm’s length withan officer or director of the former employer,a person who had a controlling interest within the meaning of the regulations in the business of the former employer, oran individual who occupied a managerial position within the meaning of the regulations with the former employer.
2005, c. 47, s. 1 “6”;
2007, c. 36, s. 85;
2009, c. 2, s. 344.
Previous VersionAMOUNTS COVERED BY PROGRAMAmount of paymentThe amount that may be paid under this Act to an individual is the amount of eligible wages owing to the individual up to a maximum of the greater of the following amounts, less any amount prescribed by regulation:$3,000; andan amount equal to four times the maximum weekly insurable earnings under the Employment Insurance Act.Bankruptcy and receivershipIf the former employer is both bankrupt and subject to a receivership, the amount that may be paid is the greater of the amount determined in respect of the bankruptcy and the amount determined in respect of the receivership.
2005, c. 47, s. 1 “7”;
2007, c. 36, s. 86;
2009, c. 2, s. 345.
Previous VersionAPPLICATION FOR PAYMENTApplicationTo receive a payment, an individual is to apply to the Minister in the manner and during the period provided for in the regulations.
2005, c. 47, s. 1 “8”;
2007, c. 36, s. 87.
Previous VersionMinister’s determination of eligibilityIf the Minister determines that the applicant is eligible to receive a payment, the Minister shall make the payment.
2005, c. 47, s. 1 “9”;
2007, c. 36, s. 87.
Previous VersionNotificationThe Minister is to inform the applicant of their eligibility or ineligibility to receive a payment.
2005, c. 47, s. 1 “10”;
2007, c. 36, s. 87.
Previous VersionREVIEW BY MINISTERRequest for reviewAn applicant who is informed under section 10 may request a review of their eligibility or ineligibility, as the case may be.
2005, c. 47, s. 1 “11”;
2007, c. 36, s. 87.
Previous VersionReviewThe Minister may confirm, vary or rescind a determination of eligibility made under section 9. If the Minister varies the determination, the Minister shall make any payment resulting from the variation.
2005, c. 47, s. 1 “12”;
2007, c. 36, s. 87.
Previous VersionReview is finalSubject to the right of appeal under section 14, the Minister’s confirmation, variation or rescission, as the case may be, is final and may not be questioned or reviewed in any court.
2005, c. 47, s. 1 “13”;
2007, c. 36, s. 87.
Previous VersionAPPEAL TO ADJUDICATORAppeal on question of law or jurisdictionThe applicant may appeal the decision made by the Minister under section 12 to an adjudicator only on a question of law or jurisdiction.
2005, c. 47, s. 1 “14”;
2007, c. 36, s. 87.
Previous VersionAppointment of adjudicatorAn appeal is to be heard by an adjudicator appointed by the Minister.Appeal on the recordThe appeal is to be an appeal on the record and no new evidence is admissible.
2005, c. 47, s. 1 “16”;
2007, c. 36, s. 88.
Previous VersionAdjudicator’s decisionThe adjudicator may confirm, vary or rescind the decision made by the Minister under section 12. If the adjudicator varies the decision, the Minister shall make any payment resulting from the variation.
2005, c. 47, s. 1 “17”;
2007, c. 36, s. 88.
Previous VersionCopies of decisionThe adjudicator must send a copy of his or her decision, and the reasons for it, to each party to the appeal.No review by certiorari, etc.No order may be made to review, prohibit or restrain and no process entered or proceeding taken to question, review, prohibit or restrain in any court — whether by way of injunction, certiorari, prohibition, quo warranto or otherwise — an action of an adjudicator under this Act.
2005, c. 47, s. 1 “19”;
2007, c. 36, s. 89.
Previous VersionDecision is finalThe adjudicator’s decision is final and may not be questioned or reviewed in any court.
2005, c. 47, s. 1 “20”;
2007, c. 36, s. 89.
Previous VersionADMINISTRATIONDuties of Trustees and ReceiversGeneral dutiesFor the purposes of this Act, a trustee or a receiver, as the case may be, shallidentify each individual who is owed eligible wages;determine the amount of eligible wages owing to each individual;inform each individual other than one who is in a class prescribed by regulation of the existence of the program established by section 4 and of the conditions under which payments may be made under this Act;provide the Minister and each individual other than one who is in a class prescribed by regulation with the information prescribed by regulation in relation to the individual and with the amount of eligible wages owing to the individual; andinform the Minister of when the trustee is discharged or the receiver completes their duties, as the case may be.Compliance with directionsA trustee or receiver shall comply with any directions of the Minister relating to the administration of this Act.Duty to assistA person, other than one described in subsection (4), who has or has access to information described in paragraph (1)(d) shall, on request, provide it to the trustee or the receiver, as the case may be.Duty to assist — payroll contractorsIn the case of a person who is dealing at arm’s length with and providing payroll services to a bankrupt or insolvent person, they shall provide a description of the information that they do not have access to, an estimate of the cost of providing the information that they have and an estimate of the cost of providing the information that they only have access to.
2005, c. 47, s. 1 “21”;
2007, c. 36, s. 89;
2009, c. 2, s. 346.
Previous VersionFees and expensesThe trustee’s or receiver’s fees and expenses, in relation to the performance of their duties under this Act, are to be paid out of the estate of the bankrupt employer or the property of the insolvent employer, as the case may be.Minister to pay fees and expensesThe Minister shall, in the circumstances prescribed by regulation, pay the fees or expenses that are prescribed by regulation.
2005, c. 47, s. 1 “22”;
2007, c. 36, s. 89.
Previous VersionPowers of MinisterDirections to trustees and receiversThe Minister may give directions to trustees and receivers in respect of the performance of their duties under this Act.Directions not statutory instrumentsA direction given by the Minister is not a statutory instrument within the meaning of the Statutory Instruments Act.Power to summon, etc.For the purposes of the administration of this Act, the Minister maysummon any person before him or her and require the person to give evidence, orally or in writing, and on oath or, if the person is entitled to affirm in civil matters, on solemn affirmation;require any person to provide the Minister with any information or document that the Minister considers necessary; andrequire any person to provide an affidavit or a statutory declaration attesting to the truth of any information provided by the person.Taking oaths, etc.Any person, if designated by the Minister for the purpose, may administer oaths and take and receive affidavits, statutory declarations and solemn affirmations for the purpose of or incidental to the administration of this Act. Every person so designated has, with respect to any such oath, affidavit, declaration or affirmation, all the powers of a commissioner for administering oaths or taking affidavits.Acceptance of oaths, etc.The Minister may, for the purposes of administering this Act, accept any oath administered or any affidavit, statutory declaration or solemn affirmation taken or received by any person who has the powers of a commissioner for taking affidavits and who is an officer or employee ofa department or other portion of the federal public administration specified in any of Schedules I, IV and V to the Financial Administration Act; ora department of the government of a province.InspectionsA person designated by the Minister for the purpose may, at any reasonable time, enter any place in which he or she reasonably believes there is any information or document relevant to the administration of this Act and may, in that place,inspect any books, records, electronic data or other documents that he or she reasonably believes may contain information that is relevant to the administration of this Act;use or cause to be used any computer system to examine any data contained in or available to the computer system;reproduce or cause to be reproduced any record from the data in the form of a print-out or other intelligible output;take any document or other thing from the place for examination or, in the case of a document, for copying; anduse or cause to be used any copying equipment to make copies of any documents.Prior authorizationIf any place referred to in subsection (1) is a dwelling-house, the designated person may not enter the dwelling-house without the consent of the occupant, except under the authority of a warrant issued under subsection (3).Warrant to enter dwelling-houseA judge may issue a warrant authorizing the designated person to enter a dwelling-house subject to the conditions specified in the warrant if, on ex parte application, the judge is satisfied by information on oath thatthere are reasonable grounds to believe that the dwelling-house is a place referred to in subsection (1);entry into the dwelling-house is necessary for any purpose related to the administration of this Act; andentry into the dwelling-house has been, or there are reasonable grounds to believe that entry will be, refused.Orders if entry not authorizedIf the judge is not satisfied that entry into the dwelling-house is necessary for any purpose related to the administration of this Act, the judge may, to the extent that access was or may be expected to be refused and that information or documents are or may be expected to be kept in the dwelling-house,order the occupant of the dwelling-house to provide the Minister, or a person designated by the Minister for the purpose, with reasonable access to any information or document that is or should be kept in the dwelling-house; andmake any other order that is appropriate in the circumstances to carry out the purposes of this Act.Duty to assistThe owner or person in charge of a place that is entered by the designated person and every person found there mustgive the designated person all reasonable assistance to enable him or her to exercise his or her powers and perform his or her duties; andprovide the designated person with any information relevant to the administration of this Act that he or she requires.Information must be made available to MinisterPersonal information relating to an applicant that is collected or obtained by the Canada Employment Insurance Commission must, if requested by the Minister, be made available to the Minister to determine the applicant’s eligibility to receive a payment under this Act.
2005, c. 47, ss. 1 “27”, 140;
2012, c. 19, s. 312.
Previous Version[Repealed, 2005, c. 47, s. 140]Previous VersionSocial Insurance NumberNo person may knowingly use, communicate or allow to be communicated a Social Insurance Number that was obtained for a purpose related to an application for a payment under this Act except for the purpose of the administration or enforcement of this Act or the Income Tax Act.
2005, c. 47, s. 1 “29”;
2007, c. 36, s. 90.
Previous VersionDelegationThe Minister may delegate to any person the exercise of any power or the performance of any duty or function that may be exercised or performed by the Minister under this Act.Audit of applicationsSubject to subsections (2) to (4), the Minister may, on his or her initiative, conduct an audit of any application for payment under this Act.Applications with paymentAn audit of an application in respect of which a payment was made may be conducted at any time within three years after the day on which the payment was made.ExceptionIf the Minister has reasonable grounds to believe that a payment was made on the basis of any false or misleading information, an audit of the application in respect of which the payment was made may be conducted at any time within six years after the payment was made.Other applicationsAn audit of an application in respect of which no payment was made may be conducted at any time within three years after the day on which the applicant was sent a notice informing the applicant that he or she was not eligible to receive a payment.Determination of overpaymentIf the Minister determines that an individual received a payment in an amount greater than the amount that they were eligible to receive, the Minister shall send them a noticeinforming them of the determination; andspecifying the amount that they were not eligible to receive.Debt due to Her MajestyThe amount specified in the notice constitutes a debt due to Her Majesty in right of Canada and may be recovered by the Minister of National Revenue.Certificate of defaultThe amount of any debt referred to in subsection (2) that remains unpaid 30 days after the day on which the notice is sent may be certified by the Minister, and registration of the certificate in the Federal Court has the same effect as a judgment of that Court for the amount specified in the certificate and all related registration costs.
2005, c. 47, s. 1 “32”;
2007, c. 36, s. 91.
Previous VersionGarnishmentIf the Minister is of the opinion that a person is or is about to become liable to pay an amount to an individual who is indebted to Her Majesty under section 32, the Minister may, by written notice, order the person to pay to the Receiver General on account of the individual’s liability all or part of the amount otherwise payable to the individual.
2005, c. 47, s. 1 “33”;
2007, c. 36, s. 91.
Previous VersionNo payment or partial paymentIf the Minister determines that an individual did not receive all or part of a payment that they were eligible to receive, the Minister shall make a payment to them in an amount equal to the amount that they did not receive.
2005, c. 47, s. 1 “34”;
2007, c. 36, s. 92(E).
Previous VersionFinancial ProvisionsPayments out of C.R.F.There may be paid out of the Consolidated Revenue Fund all payments authorized to be made under this Act.SubrogationIf a payment is made under this Act to an individual in respect of unpaid wages, Her Majesty in right of Canada is, to the extent of the amount of the payment, subrogated to any rights the individual may have in respect of the unpaid wages againstthe bankrupt or insolvent employer; andif the bankrupt or insolvent employer is a corporation, a director of the corporation.Maintaining an actionFor the purposes of subsection (1), Her Majesty in right of Canada may maintain an action in the name of the individual or Her Majesty in right of Canada.
2005, c. 47, s. 1 “36”;
2007, c. 36, s. 93.
Previous VersionAmount not assignableAn amount that is payable under this Act is not capable of being assigned, charged, attached, anticipated or given as security and any transaction appearing to do so is void or, in Quebec, null.
2005, c. 47, s. 1 “37”;
2007, c. 36, s. 93.
Previous VersionOffences and PenaltiesOffencesEvery person commits an offence whomakes a false or misleading entry, or omits to enter a material particular, in any record or book of account that contains information that supports an application under this Act;in relation to an application under this Act, makes a representation that the person knows to be false or misleading;in relation to an application under this Act, makes a declaration that the person knows to be false or misleading because of the nondisclosure of facts;being required under this Act to provide information, does not provide it or makes a representation that the person knows to be false or misleading;obtains a payment under this Act by false pretence;being the payee of any cheque issued as a payment under this Act, knowingly negotiates or attempts to negotiate it knowing that the person is not entitled to the payment or any part of the payment; orparticipates in, consents to or acquiesces in an act or omission mentioned in any of paragraphs (a) to (f).Trustees and receiversEvery person who fails to comply with any of the requirements of subsection 21(1), (3) or (4) commits an offence.Limitation of prosecutionsA prosecution for an offence under subsection (1) or (2) may be commenced at any time within six years after the day on which the subject matter of the prosecution arose.Due diligenceNo person may be convicted of an offence under subsection (2) if the person establishes that they exercised due diligence to prevent the commission of the offence.
2005, c. 47, s. 1 “38”;
2007, c. 36, s. 93.
Previous VersionObstructionEvery person commits an offence who delays or obstructs a person in the exercise of their powers or the performance of their duties under this Act.Limitation of prosecutionsA prosecution for an offence under subsection (1) may be commenced at any time within two years after the day on which the subject matter of the prosecution arose.
2005, c. 47, s. 1 “39”;
2007, c. 36, s. 93.
Previous VersionPunishmentEvery person who is guilty of an offence under section 38 or 39 is liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.RegulationsRegulationsThe Governor in Council may make regulations generally for carrying out the purposes of this Act, including regulationsprescribing amounts for the purposes of subsection 2(1);prescribing reasons for the purposes of paragraph 5(a);defining controlling interest and managerial position for the purposes of section 6;prescribing an amount for the purposes of subsection 7(1);respecting the allocation of payments to the different components of wages;respecting the period during which and the manner in which applications for payments are to be made under section 8;respecting the period during which and the manner in which a review may be requested under section 11 or an appeal may be made under section 14;prescribing the classes of individuals that the trustee or receiver is not required to inform under paragraph 21(1)(c) or to whom they are not required to provide information under paragraph 21(1)(d);respecting the information that is to be provided by trustees and receivers to the Minister and to individuals for the purposes of paragraph 21(1)(d) and respecting the period during which and the manner in which that information is to be provided;respecting the period during which and the manner in which the information referred to in paragraph 21(1)(c) and subsections 21(3) and (4) is to be provided; andprescribing fees and expenses for the purposes of subsection 22(2) and the circumstances in which they are to be paid.
2005, c. 47, s. 1 “41”;
2007, c. 36, s. 94;
2009, c. 2, s. 347.
Previous VersionREVIEW OF ACTReviewWithin five years after the day on which this section comes into force, the Minister must cause a review of this Act and its administration and operation to be conducted, and cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.RELATED PROVISIONS
— 2005, c. 47, s. 132, as amended by 2007, c. 36, s. 107Wage Earner Protection Program ActThe Wage Earner Protection Program Act, as enacted by section 1 of this Act, applies in respect of wages owing by an employer only ifthe employer becomes bankrupt on or after the day on which that section comes into force; orall or part of the employer’s property comes into the possession or under the control of a receiver on or after the day on which that section comes into force.
— 2009, c. 2, s. 357ApplicationThe provisions of the Wage Earner Protection Program Act and the Wage Earner Protection Program Regulations as amended by sections 342 to 354 applyin respect of wages owing to an individual by an employer who becomes bankrupt after January 26, 2009; andin respect of wages owing to an individual by an employer any of whose property comes under the possession or control of a receiver within the meaning of subsection 243(2) of the Bankruptcy and Insolvency Act after January 26, 2009.
— 2011, c. 24, s. 164TransitionalThe Wage Earner Protection Program Act, as amended by section 163, appliesin respect of wages owing to an individual by an employer who becomes bankrupt after June 5, 2011; andin respect of wages owing to an individual by an employer any of whose property comes under the possession or control of a receiver as defined in subsection 243(2) of the Bankruptcy and Insolvency Act, after June 5, 2011.