Pension Benefits Standards Act, 1985 (R.S.C., 1985, c. 32 (2nd Supp.))

Marginal note:Void or, in Quebec, null agreements

• 36 (1) Where any provision of this Act or the regulations requires an amount to be withheld, deducted, paid or credited, any agreement or arrangement by the person on whom the requirement is imposed not to withhold, deduct, pay or credit that amount is void or, in Quebec, null.

• Marginal note:Idem

  (2) Any agreement or arrangement to assign, charge, anticipate or give as security

  • (a) any benefit provided under a pension plan, or

  • (b) any money withdrawn from a pension fund pursuant to section 26

  is void or, in Quebec, null.

• Marginal note:Exception

  (3) Subsection (2) does not apply to prevent the assignment of a right or interest in a pension benefit, or in a life annuity of the prescribed kind resulting from a transfer or purchase under section 26, if the assignment

  • (a) is ordered by a court pursuant to provincial property law (within the meaning of subsection 25(1)); or

  • (b) is made under subsection 25(4) pursuant to a written agreement.

• Marginal note:Void or, in Quebec, null agreements

  (4) Any agreement or arrangement

  • (a) to surrender or commute a benefit, or any right or interest in the benefit, or

  • (b) to surrender or commute benefits payable as a result of a transfer or purchase under section 26

  that is inconsistent with the rules set out in subsection 18(1) is void or, in Quebec, null.

• Marginal note:Exception

  (5) Subsection (4) does not apply in respect of payments pursuant to paragraph 18(2)(b) or (c).

Marginal note:Amendments to pension plans

• 37 (1) Where an amendment to a pension plan may reasonably be regarded as having been made in contemplation of the termination or winding-up of the plan, either immediately or in the future, with a view to avoiding payment of any pension benefit or other benefit for which the plan provided, the amendment is subject to being declared void or, in Quebec, null, in the manner provided in this section.

• Marginal note:Application and declaration

  (2) A judge of the Federal Court may, on application to that Court by the Superintendent and after such notice to the administrator of the pension plan as the judge may direct, declare void or, in Quebec, null any amendment to that pension plan that under subsection (1) is subject to being declared void or, in Quebec, null, and thereon, except as otherwise determined on appeal, if any, the amendment shall be deemed to be and always to have been void or, in Quebec, null for all purposes.

• Marginal note:Proceedings on declaration

  (3) Where any declaration has been made under subsection (2), except with consent of the Superintendent, no process or proceedings shall be taken or instituted in consequence of that declaration within the time limit for the bringing of any appeal therefrom or while any such appeal remains to be disposed of.

Marginal note:Not statutory instruments

37.1 A direction issued under this Act by the Superintendent with respect to a particular pension plan is not a statutory instrument for the purposes of the Statutory Instruments Act.

Offences and Punishment

Marginal note:Offences

• 38 (1) Every person who

  • (a) contravenes any provision of this Act or the regulations or a direction of the Superintendent given under the authority of this Act or the regulations,

  • (b) to avoid compliance with this Act or the regulations,

    • (i) destroys, alters, mutilates, secretes or otherwise disposes of any record, writing or other document,

    • (ii) in any record, writing or other document, makes a false or deceptive statement or a false or deceptive entry, or

    • (iii) omits to furnish any material particular in any statement or in any record, writing or other document,

  • (c) prevents or obstructs, or attempts to prevent or obstruct, another person doing anything that that other person is authorized by or pursuant to section 34 to do or, unless unable to do so, fails to do anything that is required to be done by or pursuant to that section, or

  • (d) being an employer, fails to remit to the pension fund all amounts that the employer is liable so to remit,

  is guilty of an offence.

• Marginal note:Punishment

  (1.1) A person who commits an offence under subsection (1) is

  • (a) in the case of an individual, liable on summary conviction to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding twelve months, or to both; and

  • (b) in the case of a corporation or other body, liable on summary conviction to a fine not exceeding five hundred thousand dollars.

• Marginal note:Remittance of amount owing

  (2) If an employer is found guilty of not remitting all amounts to a pension fund, the court may, in addition to imposing a penalty under subsection (1.1), order the employer to remit to the pension fund all amounts owing with interest.

• Marginal note:Evidence

  (3) In any prosecution for an offence under this section, a certificate purporting to be signed by the Superintendent or by any person on the Superintendent’s behalf certifying that a copy of a pension plan or of an amendment to any such plan was not filed with the Superintendent as required by this Act, or certifying as to the registration of a pension plan, is admissible in evidence and, in the absence of any evidence to the contrary, is proof of the matters so certified.

• Marginal note:Limitation period

  (4) Proceedings in respect of an offence under this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the Superintendent.

• Marginal note:Certificate of Superintendent

  (4.1) A document appearing to have been issued by the Superintendent, certifying the day on which the subject-matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

• Marginal note:Corporations and other bodies

  (5) If a corporation or other body is guilty of an offence under this section, every officer, director, agent or mandatary or member of the corporation or body who directed, authorized, assented to, acquiesced in or participated in the offence is a party to and guilty of the offence and is liable on summary conviction to the punishment provided for the offence, whether or not the corporation or body has been prosecuted or convicted.

• Marginal note:Informations and complaints

  (6) An information or complaint under this section may be laid or made by any officer of the Office of the Superintendent of Financial Institutions, any member of the Royal Canadian Mounted Police or any person authorized in writing by the Minister.

Regulations

Marginal note:Regulations

• 39 (1) The Governor in Council may make regulations

  • (a) respecting applications for registration of pension plans;

  • (a.1) [Repealed, 2012, c. 16, s. 89]

  • (b) respecting the fees that may be charged for the registration of pension plans and for the supervision, including inspection, of registered pension plans;

  • (b.1) respecting the implementation of a federal-provincial agreement;

  • (b.2) exempting a federal-provincial agreement or any provision of that agreement from the application of subsection 6.2(1);

  • (b.3) respecting transitional matters in the event that the Government of Canada ceases to be a party to a federal-provincial agreement;

  • (c) prescribing the conditions under which, on the cessation of a member’s membership in a pension plan or on the termination or winding-up of a pension plan, pension benefit credits may be held in trust by the administrator of the plan, or transferred to the administrator of another pension plan or to a registered retirement savings plan of the prescribed kind;

  • (c.1) respecting the transfer of pension benefit credit of any person who cannot be located, as well as the assets relating to that credit to the entity designated under section 10.3, including the circumstances and conditions under which that credit and those assets may be transferred to that entity;

  • (c.2) respecting the entity designated under section 10.3;

  • (c.3) respecting the holding of pension benefit credit of any person who cannot be located, as well as the assets relating to that credit by the entity designated under section 10.3, the making of claims for that credit and the disbursement of that credit;

  • (c.4) respecting the transfer to Her Majesty in right of Canada of assets held by the entity designated under section 10.3;

  • (d) prescribing, for the purposes of this Act or any provision thereof, the manner of determining the portion of a pension benefit or other benefit that is attributable to membership in a plan after December 31, 1986;

  • (e) respecting the time by which contributions to a pension plan are required to be remitted to the pension fund by the administrator, and respecting the consequences of failure to remit contributions to the pension fund on time, including the liability of the administrator;

  • (e.1) respecting the interest to be paid on the amounts due to the pension fund from the employer or the administrator;

  • (e.2) respecting the letters of credit referred to in subsection 9.11(1), including regulations

    • (i) specifying the types of payments that may be replaced by a letter of credit,

    • (ii) specifying the circumstances in which a payment or part of a payment may be replaced by a letter of credit and the conditions and restrictions that apply,

    • (iii) specifying the eligibility criteria that the issuer of the letter of credit and the trustee referred to in section 9.13 must meet,

    • (iv) specifying the terms and conditions that a letter of credit and a trust agreement must contain,

    • (v) specifying the circumstances in which, on the direction of the employer, a letter of credit may be cancelled or its face value amended and the conditions that apply, and

    • (vi) specifying the circumstances in which a letter of credit must be cancelled or its face value reduced and the amount — or part of the amount — in respect of which it was obtained to be paid by the employer into the pension fund;

  • (e.3) respecting the reduction of payments referred to in section 9.16, including specifying the conditions under which they may be reduced and the types of payments that may be reduced;

  • (f) providing for the determination of the day on which a member or former member of a pension plan becomes entitled to a particular pension benefit or other benefit under the plan;

  • (g) prescribing the manner in which pension benefit credits are to be determined and fixing the time as of which the determination is to be made;

  • (h) for enabling the Superintendent to require administrators to provide up-to-date consolidations of their pension plans and respecting the form and certification of those consolidations;

  • (h.1) respecting refunds of surplus assets and arbitrations referred to in section 9.2;

  • (h.2) respecting solvency ratios and solvency ratio levels and the manner in which they are to be determined;

  • (h.3) respecting, for the purposes of paragraph 10.1(2)(c), amendments referred to in section 10.1 regarding negotiated contribution plans;

  • (i) authorizing the Superintendent to specify the information in respect of pension plans that is to be provided to the Superintendent by the administrator;

  • (i.1) authorizing the Superintendent to specify the information in respect of pension plans that is to be provided to the Superintendent by the employer;

  • (i.2) respecting the establishment of a separate pension plan under section 10.4, the determination of assets to be transferred to that plan and the transfer of assets and liabilities to that plan;

  • (j) respecting the distribution of the assets of a pension plan that is being wound up;

  • (j.1) respecting the manner in which the administrator of a pension plan must deal with complaints or inquiries from members of the pension plan, former members and any other persons entitled to pension benefits under the plan;

  • (k) exempting any employee or pension plan, any class of employee or pension plan or any benefit or kind of benefit under a pension plan from the application of this Act or any provision thereof;

  • (k.1) respecting phased retirement benefits;

  • (k.2) respecting variable benefits;

  • (l) defining the term disability;

  • (l.1) defining the term normal cost for the purposes of paragraph 29(6)(a) and subsections 29.07(1) and 29.1(2);

  • (m) respecting the meaning of impair the solvency for the purposes of section 26.1;

  • (m.1) respecting payment of the amount described in subsection 29(6.1);

  • (m.2) respecting the manner in which the amount described in subsection 29(6.1) is to be calculated, including the periodic adjustment of that amount between the date of termination and the date of the winding-up of the pension plan;

  • (m.3) respecting the determination of the portion referred to in subsection 29(6.3) and the reversion of that portion to the benefit of the employer;

  • (n) respecting the integration of

    • (i) the payment of any pension benefit or contribution under a pension plan

    with

    • (ii) the payment of any pension or contribution payable under the Old Age Security Act, the Canada Pension Plan, or any provincial pension plan as defined in section 3 of the Canada Pension Plan;

  • (n.1) respecting the distressed pension plan scheme provided for in sections 29.01 to 29.3, including regulations

    • (i) specifying the circumstances in which the election referred to in subsection 29.03(1) may not be made,

    • (ii) specifying the form and content of the notice to be provided under subsection 29.03(5) as well as the manner in which and the period within which it is to be provided,

    • (iii) respecting the negotiation process,

    • (iv) respecting the determination of the day on which the negotiation period is to end, and

    • (v) respecting the funding schedule, including what it may provide for and the requirements that it must meet;

  • (n.11) respecting the investment of the assets of a pension fund;

  • (n.2) respecting the process by which investment options are offered by an administrator and choices among those options are made;

  • (n.3) respecting investment options offered by an administrator;

  • (n.4) prescribing any measure necessary for the purposes of sections 31.1 and 31.2, including the time when and circumstances under which an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received;

  • (n.5) setting out the requirements under this Act to which subsections 31.1(1) and (2) do not apply;

  • (n.6) authorizing the Superintendent to specify the form of any information — including information in a document — required to be provided to him or her under the regulations, as well as the manner of providing that information;

  • (n.7) respecting the composition of a board of trustees or other similar body referred to in paragraph 7(1)(a);

  • (o) prescribing anything that by this Act is to be prescribed; and

  • (p) generally for carrying out the purposes and provisions of this Act.

• Marginal note:Classes

  (2) A regulation made under this Act may be made applicable generally to all pension plans or specifically to one or more classes of pension plans.

• Marginal note:General or specific application

  (3) A regulation made for the purposes of subsection 8(4.1) or 9(1), sections 9.11 to 9.15 or subsection 10.1(2) may be made applicable generally to all pension plans or specifically to one or more pension plans.