Jobs and Economic Growth Act (S.C. 2010, c. 12)
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Assented to 2010-07-12
PART 9R.S., c. 32 (2nd Supp.)PENSION BENEFITS STANDARDS ACT, 1985
Amendments to the Act
Marginal note:1998, c. 12, s. 5
1789. Paragraph 7.5(2)(b) of the Act is replaced by the following:
(b) require the administrator to invite members, former members or any other persons entitled to pension benefits under the pension plan to attend the meeting; and
1790. The Act is amended by adding the following after section 7.5:
Marginal note:Appointment of replacement administrator
7.6 (1) If the administrator of a pension plan is insolvent or unable to act or the Superintendent is of the opinion that it is in the best interests of the members or former members, or any other persons entitled to pension benefits under the plan, that the administrator be removed, the Superintendent may remove the administrator and appoint a replacement administrator. A replacement administrator may recover their reasonable fees and expenses from the pension fund.
Marginal note:Notification
(2) The Superintendent must notify a replaced administrator of their removal as soon as feasible.
Marginal note:Effect of replacement
(3) The replacement administrator is seized of the pension fund as of the date of the notification under subsection (2).
Marginal note:Notice
(4) If the whole of a pension plan is terminated, the replacement administrator must, on receiving approval of the termination report under subsection 29(10), give notice to the members, former members and any other persons who are entitled to pension benefits under the pension plan of the replacement administrator’s intention to distribute the assets of the plan in accordance with the report.
Marginal note:Publication
(5) The replacement administrator must publish the notice in the Canada Gazette and, except as otherwise directed by the Superintendent, once a week for two consecutive weeks in one or more newspapers in general circulation in each province.
Marginal note:Subrogation
(6) The members, former members and any other persons who were entitled to pension benefits under the pension plan immediately before the appointment of the replacement administrator are subrogated to those rights and claims of the replacement administrator that the replacement administrator has elected in writing not to pursue. They may maintain an action in respect of those rights and claims in their own name.
Marginal note:Discharge
(7) The Superintendent may discharge the replacement administrator when the assets of the pension plan have been distributed in accordance with this Act and the regulations.
1791. (1) The portion of subsection 8(1) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Amounts to be held in trust
8. (1) An employer shall ensure, with respect to its pension plan, that the following amounts are kept separate and apart from the employer’s own moneys, and the employer is deemed to hold the amounts referred to in paragraphs (a) to (c) in trust for members of the pension plan, former members, and any other persons entitled to pension benefits under the plan:
Marginal note:1998, c. 12, s. 6(1)
(2) Paragraph 8(1)(b) of the Act is replaced by the following:
(b) an amount equal to the aggregate of the following payments that have accrued to date:
(i) the prescribed payments, and
(ii) the payments that are required to be made under a workout agreement; and
(3) The portion of paragraph 8(1)(c) of the English version of the Act before subparagraph (i) is replaced by the following:
(c) all of the following amounts that have not been remitted to the pension fund:
(4) The portion of subsection 8(1) of the Act after subparagraph (c)(i) is replaced by the following:
(ii) other amounts due to the pension fund from the employer, including any amounts that are required to be paid under subsection 9.14(2) or 29(6).
(5) Subsection 8(3) of the Act is replaced by the following:
Marginal note:Administration of pension plan and fund
(3) The administrator shall administer the pension plan and pension fund as a trustee for the employer, the members of the pension plan, former members, and any other persons entitled to pension benefits under the plan.
1792. The Act is amended by adding the following before section 9:
Required Funding
1793. (1) Subsection 9(1) of the Act is replaced by the following:
Marginal note:Funding of pension plan
9. (1) A pension plan shall be funded in accordance with the prescribed tests and standards for solvency.
Marginal note:Payments by employer
(1.1) In respect of a pension plan that is not a multi-employer pension plan, the employer shall pay into the pension fund all amounts required to meet the prescribed tests and standards for solvency.
Marginal note:Multi-employer pension plan
(1.2) In respect of a multi-employer pension plan, each participating employer shall pay into the pension fund all contributions that they are required to pay under an agreement between participating employers or a collective agreement, statute or regulation.
(2) The portion of subsection 9(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Actuarial reports
(2) In the case of an actuarial report required under subsection 12(2), if the Superintendent is of the opinion that the report has not been prepared
1794. The Act is amended by adding the following after section 9:
Marginal note:Designation of actuary
9.01 (1) If the Superintendent is of the opinion that it is in the best interests of the members or former members, or any other persons entitled to pension benefits under a pension plan, the Superintendent may designate an actuary to prepare, in accordance with subsection 12(3.1), an actuarial report or a termination report required under subsection 12(2) or 29(9), respectively, and to provide the administrator with the report within the period specified by the Superintendent.
Marginal note:Notification
(2) The Superintendent must notify the administrator in writing of the designation. If the administrator is not the employer, the administrator must notify the employer in writing.
Marginal note:Obligation to provide information
(3) The administrator and employer must, if requested to do so, provide the designated actuary with any information in their possession or control that the designated actuary considers necessary for the preparation of the report.
Marginal note:Comments on draft report
(4) Before finalizing the report, the designated actuary must provide the administrator with a copy of the draft report and give the administrator an opportunity to submit comments.
Marginal note:Report to be filed
(5) The administrator must file with the Superintendent the report prepared by the designated actuary within the period specified by the Superintendent.
Marginal note:Power of Superintendent
(6) If the administrator fails to file the report within the specified period, the Superintendent may require the designated actuary to provide a copy of the report.
Marginal note:Replacement report
(7) If the administrator has already filed the report in respect of which an actuary is designated, subsection 9(2) does not apply to that report and the designated actuary’s report replaces it.
Marginal note:Funding of pension plan
(8) A pension plan must be funded in accordance with the report prepared by the designated actuary, once the report has been filed under subsection (5) or provided to the Superintendent under subsection (6).
Marginal note:Fees and expenses
(9) The administrator must pay out of the pension fund the reasonable fees and expenses of the designated actuary that are associated with the preparation of the report.
1795. The Act is amended by adding the following after section 9.1:
Letters of Credit
Marginal note:Letters of credit
9.11 (1) Subject to the regulations, an employer may provide a trustee with, or transfer to a trust, a letter of credit made out to the trustee for the benefit of the pension plan, instead of paying into the pension fund an amount that is required to be paid under subsection 9(1.1).
Marginal note:Copy to administrator
(2) As soon as feasible after the letter of credit is issued, the employer must provide the administrator with a copy of it.
Marginal note:Deductions from remuneration
(3) The employer may not obtain a letter of credit in respect of an amount that it has deducted from members’ remuneration.
Marginal note:Non-application
(4) Subsection (1) does not apply in respect of a pension plan that has been terminated in whole.
Marginal note:Duty of employer
9.12 The employer must ensure that the letter of credit and the trust agreement comply with this Act and the regulations and must, at any intervals or times and in the form that the Superintendent directs, provide the Superintendent and the administrator with a written statement confirming that compliance.
Marginal note:Obligation of trustee
9.13 (1) The trustee must hold the letter of credit in trust for the pension plan.
Marginal note:Disclosure
(2) The trustee must file with the Superintendent any information in respect of a letter of credit that the Superintendent requires at any intervals or times that the Superintendent directs.
Marginal note:No liability
(3) No civil action lies against the trustee for having, in good faith and in accordance with the regulations, on the direction of the employer, allowed the letter of credit to be cancelled or its face value to be reduced.
Marginal note:Demand for payment
9.14 (1) In the prescribed circumstances, the trustee must make a demand to the issuer for payment into the pension fund of an amount equal to the face value of the letter of credit.
Marginal note:Payment by employer
(2) If the issuer fails to honour the letter of credit, the employer must pay an amount equal to its face value into the pension fund without delay.
Marginal note:Non-application of subsection 8(1)
(3) Subsection 8(1) does not apply to an amount in respect of which the employer has obtained a letter of credit unless the issuer fails to honour the letter of credit.
Marginal note:Bankruptcy, etc., of employer
(4) In the event of any liquidation, assignment or bankruptcy of the employer, an amount equal to the amount of a letter of credit that has not been honoured by the issuer is deemed to be separate from and form no part of the estate in liquidation, assignment or bankruptcy.
Marginal note:Costs
9.15 The costs that are associated with obtaining, holding, amending or cancelling a letter of credit may not be paid out of the pension fund.
Crown Corporations
Marginal note:Reduction of payments
9.16 If the employer is a Crown corporation, a payment that it is required to make under subsection 9(1.1) may be reduced, provided the payment does not relate to any amount that the employer has deducted from members’ remuneration and the prescribed conditions have been met.
Surplus
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