Wage Earner Protection Program Regulations (SOR/2008-222)

Regulations are current to 2016-06-21 and last amended on 2009-03-12. Previous Versions

Wage Earner Protection Program Regulations

SOR/2008-222

WAGE EARNER PROTECTION PROGRAM ACT

Registration 2008-07-04

Wage Earner Protection Program Regulations

P.C. 2008-1317 2008-07-04

Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to section 41 of the Wage Earner Protection Program ActFootnote a, hereby makes the annexed Wage Earner Protection Program Regulations.

Interpretation

 The following definitions apply in these Regulations.

Act

Act means the Wage Earner Protection Program Act. (Loi)

Minister

Minister means the Minister of Labour. (ministre)

Wages

 The following amounts are prescribed for the purposes of subsection 2(1) of the Act:

  • (a) gratuities accounted for by the employer;

  • (b) disbursements of a travelling salesperson properly incurred in and about the business of a bankrupt or the business of a person subject to a receivership; and

  • (c) production bonuses and shift premiums.

Termination of Employment

 An individual’s employment has ended for the purposes of paragraph 5(a) of the Act if it has ended for any of the following reasons:

  • (a) the individual resigned or retired;

  • (b) the individual’s employment has terminated; or

  • (c) the term of the individual’s employment has expired.

  • 2009, c. 2, s. 348.

Controlling Interest

 For the purpose of paragraph 6(b) of the Act, an individual had a controlling interest in the business of their former employer if the individual owned

  • (a) more than 40% of the voting shares in the business;

  • (b) a block of voting shares that is large enough such that no one shareholder or coalition of shareholders can block a motion; or

  • (c) enough shares in the business to control the business’s policy.

Excluded Managers

 For the purpose of paragraph 6(c) of the Act, an individual occupied a managerial position with their former employer if the responsibilities of the individual included making binding

  • (a) financial decisions affecting the business of the former employer; or

  • (b) decisions with respect to the payment or the non-payment of wages by the former employer.

Offsets

 The following amounts are prescribed for the purpose of subsection 7(1) of the Act:

  • (a) any amount that the individual has received after the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer by virtue of his or her rights in respect of the eligible wages; and

  • (b) an amount equal to 6.82% of the amount determined under that subsection.

  • 2009, c. 2, s. 349.

 [Repealed, 2009, c. 2, s. 350]

Allocation of Payments

 Payments to an individual under the Act are to be allocated in the following order:

  • (a) firstly, to wages other than those referred to in paragraphs (b) to (e);

  • (b) secondly, to disbursements of a travelling salesperson properly incurred in and about the business of a bankrupt or the business of a person subject to a receivership to the extent referred to in subsections 81.3(3) and 81.4(3) of the Bankruptcy and Insolvency Act;

  • (c) thirdly, to vacation pay;

  • (d) fourthly, to termination pay; and

  • (e) lastly, to severance pay.

  • 2009, c. 2, s. 351.

Applications

 An application for payment shall, unless circumstances beyond the control of the applicant necessitate a longer period, be made within 56 days after the latest of the day

  • (a) of the bankruptcy or receivership of the applicant’s former employer;

  • (b) on which the applicant’s employment ends for any of the reasons referred to in section 3; and

  • (c) on which the receiver terminates the applicant’s employment.

  • 2009, c. 2, s. 352.

 An application shall be made in writing using the form provided by the Minister.

Review

 An applicant shall, unless circumstances beyond the control of the applicant necessitate a longer period, request a review under section 11 of the Act in writing no more than 30 days after the day on which the applicant is informed of the Minister’s determination of eligibility or ineligibility, as the case may be.

 The Minister shall notify the applicant in writing of the Minister’s decision.

Appeal

 An appeal to an adjudicator under section 14 of the Act shall, unless circumstances beyond the control of the applicant necessitate a longer period, be made within 60 days after the day on which the applicant is notified of the Minister’s decision.

 The appeal shall be made in writing and contain a statement of the grounds of appeal.

Information to Be Provided to the Minister

  •  (1) For the purpose of paragraph 21(1)(d) of the Act, the trustee or receiver shall provide the Minister with the following information in the form provided by the Minister:

    • (a) the date of bankruptcy or receivership;

    • (b) the name, address, telephone number, social insurance number, employee number and job title of the individual;

    • (c) the dates on which wages, other than severance pay or termination pay, were earned and the basis upon which they were calculated;

    • (c.1) the date on which any employment in respect of which severance pay or termination pay is owing ended;

    • (d) a statement as to whether or not the individual submitted a proof of claim for wages owing under section 124 of the Bankruptcy and Insolvency Act; and

    • (e) the names of the employer’s officers, directors and owners and of the person responsible for the employer’s payroll.

  • (2) The trustee or receiver shall provide the information within

    • (a) 45 days from the date of bankruptcy or from the first day on which there was a receiver in relation to the former employer, as the case may be, unless circumstances beyond the control of the trustee or receiver necessitate a longer period; or

    • (b) if the trustee or receiver requests the information under subsection 21(3) or (4) of the Act, 15 days after receiving the information.

  • 2009, c. 2, s. 353.

Information to Be Provided to an Individual

  •  (1) For the purpose of paragraph 21(1)(d) of the Act, the trustee or receiver shall provide each individual with the following information:

    • (a) the date of bankruptcy or receivership;

    • (b) a statement informing the individual of their requirement under section 124 of the Bankruptcy and Insolvency Act to submit a proof of claim for wages owing;

    • (c) a copy of the information and documents that they provided to the Minister with respect to the individual; and

    • (d) an application form for the Wage Earner Protection Program.

  • (2) The trustee or receiver shall provide the information within 45 days from the date of bankruptcy or from the first day on which there was a receiver in relation to the former employer, as the case may be, unless circumstances beyond the control of the trustee or receiver necessitate a longer period.

  • 2009, c. 2, s. 354.

Duty to Assist — Deadlines

  •  (1) A person shall provide information under subsection 21(3) or (4) of the Act within 10 days after the day on which they receive the request unless circumstances beyond the control of the person necessitate a longer period and the person provides a written request to the Minister for extension before the 10 days have elapsed.

  • (2) A copy of the request for extension shall also be provided to the trustee or receiver, as the case may be.

Fees and Expenses

  •  (1) For the purpose of subsection 22(2) of the Act, the Minister shall, on application by the trustee or receiver, pay the fees and expenses in relation to the performance of their duties under the Act if

    • (a) the trustee or receiver provides a copy of their final statement of receipts and disbursements for the bankruptcy or receivership;

    • (b) the final statement of receipts and disbursements for the bankruptcy or receivership shows a deficit;

    • (c) no guarantee has been provided by a creditor of the employer in respect of the fees and expenses; and

    • (d) the fees in relation to the performance of duties under section 21 of the Act are equal to at least 10% of the total fees charged for the administration of the bankruptcy or receivership.

  • (2) The amount payable is equal to the lesser of

    • (a) the amount of the deficit shown in the final statement of receipts and disbursements, and

    • (b) the amount obtained by adding $600 for the first wage claim to the amount determined by multiplying $35 by the number of subsequent claims.

  •  (1) For the purposes of subsection 22(2) of the Act, the Minister shall, on application by the trustee or receiver, pay the fees and expenses for their administration of the estate or property if

    • (a) the trustee or receiver provides a copy of their final statement of receipts and disbursements for the bankruptcy or receivership;

    • (b) the final statement of receipts and disbursements for the bankruptcy or receivership shows a deficit;

    • (c) the amount determined in accordance with the following formula is greater than zero and less than or equal to the value of the rights under sections 81.3 and 81.4 of the Bankruptcy and Insolvency Act:

      X - Y

      where

      X 
      is equal to the current assets realized, and
      Y 
      is the sum of the value of the rights under sections 81.1 and 81.2 of the Bankruptcy and Insolvency Act and the amounts referred to in subsection 67(3) of that Act that have been deemed to be held in trust; and
    • (d) the value of the rights under sections 81.3 and 81.4 of the Bankruptcy and Insolvency Act constitutes the entire value of the property in the possession of the trustee or receiver.

  • (2) The amount payable is equal to the least of the following amounts, minus any amount paid under section 18:

    • (a) the sum of

      • (i) 95% of the value of current assets realized that are worth less than $2,000,

      • (ii) 50% of the value of current assets realized that are worth between $2,000 and $4,000,

      • (iii) 35% of the value of current assets realized that are worth between $4,000.01 and $10,000,

      • (iv) 5% of the value of current assets realized that are worth $10,000.01 or more, and

      • (v) the fees and expenses

        • (A) for taking possession of the property, making an inventory and securing and insuring the property,

        • (B) for mail-outs to creditors to advise them of the meeting of creditors and the discharge hearing of the trustee,

        • (C) for the cost of publishing a newspaper notice of the bankruptcy,

        • (D) of the official receiver and the registrar, and

        • (E) for other items that may be allowed by the court on the taxation of the statement of receipts and disbursements to a maximum of $1,000;

    • (b) if a guarantee has been provided by a creditor of the employer in respect of the fees and expenses, the value of that guarantee; and

    • (c) the value of the rights under sections 81.3 and 81.4 of the Bankruptcy and Insolvency Act.

Coming into Force

Footnote * These Regulations come into force on the day on which the Wage Earner Protection Program Act, as enacted by section 1 of chapter 47 of the Statutes of Canada, 2005, comes into force.

RELATED PROVISIONS

  • — 2009, c. 2, s. 357

    • Application

      357 The provisions of the Wage Earner Protection Program Act and the Wage Earner Protection Program Regulations as amended by sections 342 to 354 apply

      • (a) in respect of wages owing to an individual by an employer who becomes bankrupt after January 26, 2009; and

      • (b) in 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.

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