Proclamation Giving Notice that the Agreement on Social Security between Canada and the Federative Republic of Brazil Comes into Force on August 1, 2014 (SI/2014-67)

Agreement on Social Security Between Canada and the Federative Republic of Brazil

CANADA AND THE FEDERATIVE REPUBLIC OF BRAZIL (hereinafter “Brazil”), hereinafter referred to as the “Parties”,

RESOLVED to co-operate in the field of social security,

HAVE DECIDED to conclude an Agreement for this purpose, and

HAVE AGREED as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

• 1 For the purposes of this Agreement:

  benefit

  benefit means, for a Party, any cash benefit for which provision is made in the legislation of that Party and includes any supplements or increases applicable to such a cash benefit;

  competent authority

  competent authority means, for Canada, the Minister or Ministers responsible for the application of the legislation of Canada; for Brazil, the Minister responsible for the application of the legislation of Brazil;

  competent institution

  competent institution means, for Canada, the competent authority; and, as regards Brazil, the Instituto Nacional do Seguro Social;

  dependants

  dependants means, for Brazil, those persons included in the legislation specified in Article 2;

  legislation

  legislation means, for a Party, the laws and regulations specified in Article 2;

  period of coverage”

  period of coverage” means:

  for Canada, a period of contribution used to acquire the right to a benefit under the Canada Pension Plan; a period during which a disability pension is paid under that Plan; and a period of residence used to acquire the right to a benefit under the Old Age Security Act; and

  for Brazil, a period of actual or equivalent contribution used to acquire a right to a benefit under the legislation specified in Article 2.

• 2 Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

ARTICLE 2Material Scope of Application

• 1 This Agreement shall apply to the following legislation:

  • (a) with respect to Canada:

    • (i) the Old Age Security Act and the regulations made thereunder;

    • (ii) the Canada Pension Plan and the regulations made thereunder;

  • (b) with respect to Brazil:

    the legislation covering the general regime for social security and to the social security regimes for civil servants regarding age, disability and survivors pension insurance.

• 2 Subject to paragraph 3, this Agreement shall also apply to laws and regulations which amend, supplement, consolidate or replace the legislation specified in paragraph 1.

• 3 This Agreement shall further apply to laws and regulations which extend the legislation of a Party to new categories of beneficiaries or to new benefits unless the Party implementing the changes communicates to the other Party, within three months of the entry into force of such laws and regulations, that they shall not apply.

ARTICLE 3Personal Scope of Application

This Agreement shall apply to any person who is or who has been subject to the legislation of Canada or Brazil, and to persons who acquire rights from such a person within the meaning of the applicable legislation of either Party.

ARTICLE 4Equality of Treatment

Any person who is or who has been subject to the legislation of a Party, and persons who acquire rights from such a person, shall be subject to the obligations of the legislation of the other Party and shall be eligible for the benefits of that legislation under the same conditions as citizens of the latter Party.

ARTICLE 5Export of Benefits

• 1 Unless otherwise provided in this Agreement, benefits payable under the legislation of a Party to any person described in Article 3, including benefits acquired by virtue of this Agreement, shall not be reduced, modified, suspended or cancelled by reason only of the fact that the person resides in the territory of the other Party. These benefits shall be payable when that person resides in the territory of the other Party.

• 2 Benefits paid under this Agreement to a person described in Article 3 shall be paid when that person resides in the territory of a third State.

• 3 As regards Canada, an allowance and a guaranteed income supplement shall be payable to a person who is outside Canada only to the extent permitted by the Old Age Security Act.

PART IIProvisions Concerning the Applicable Legislation

ARTICLE 6Coverage for Employed and Self-Employed Persons

Subject to Articles 7 to 9:

• (a) An employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party.

• (b) A self-employed person who resides in the territory of a Party and who works for his or her own account in the territory of the other Party or in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the first Party.

ARTICLE 7Detachments

An employed person who is subject to the legislation of a Party and who is sent to work in the territory of the other Party for the same employer shall, in respect of that work, be subject only to the legislation of the first Party as though that work was performed in its territory. The maximum period of such detachments shall be for a duration of up to 60 months.

ARTICLE 8Government Employment

• 1 Notwithstanding any provision of this Agreement, the provisions regarding social security of the Vienna Convention on Diplomatic Relations of 18 April 1961 and the Vienna Convention on Consular Relations of 24 April 1963 shall continue to apply.

• 2 A public servant or government employee of a Party who is sent to work in the territory of the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.

• 3 Except as provided in paragraphs 1 and 2, a person who resides in the territory of a Party and who is engaged therein in government employment for the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.

ARTICLE 9Exceptions

The competent authorities of the Parties may, by mutual consent in writing, make exceptions to the application of the provisions of Articles 6 to 8 with respect to any person or categories of persons provided that the persons involved are subject to the legislation of one of the Parties.

ARTICLE 10Periods of Coverage under the Legislation of Canada

• 1 For the purpose of calculating the amount of benefits under the Old Age Security Act:

  • (a) If a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of presence or residence in Brazil, that period shall be considered as a period of residence in Canada for that person; it shall also be considered to be a period of residence in Canada for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the legislation of Brazil by reason of employment or self-employment;

  • (b) If a person is subject to the legislation of Brazil during any period of presence or residence in Canada, that period shall not be considered as a period of residence in Canada for that person; it shall also not be considered as a period of residence in Canada for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment or self-employment.

• 2 In the application of paragraph 1:

  • (a) A person shall be considered to be subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during a period of presence or residence in Brazil only if that person makes contributions pursuant to the plan concerned during that period by reason of employment or self-employment;

  • (b) A person shall be considered to be subject to the legislation of Brazil during a period of presence or residence in Canada only if that person makes compulsory contributions pursuant to that legislation during that period by reason of employment or self-employment.

PART IIIProvisions Concerning Benefits

Chapter ITotalizing

ARTICLE 11Periods under the Legislation of Canada and Brazil

• 1 If a person is not eligible for a benefit because that person has not accumulated sufficient periods of coverage under the legislation of a Party, the eligibility of that person for that benefit shall be determined by totalizing these periods and those specified in paragraphs 2 through 4, provided that the periods do not overlap.

• 2. (a) For the purpose of determining eligibility for a benefit under the Old Age Security Act of Canada, a period of coverage under the legislation of Brazil shall be considered as a period of residence in Canada;

  • (b) For the purpose of determining eligibility for a benefit under the Canada Pension Plan, a calendar year including at least 3 months which are periods of coverage under the legislation of Brazil shall be considered as a year of coverage under the Canada Pension Plan.

• 3 For the purpose of determining eligibility for an old age benefit under the legislation of Brazil:

  • (a) A calendar year which is a period of coverage under the Canada Pension Plan shall be considered as 12 months of coverage under the legislation of Brazil;

  • (b) A month which is a period of coverage under the Old Age Security Act of Canada and which does not overlap with a period of coverage under the Canada Pension Plan shall be considered as a month of coverage under the legislation of Brazil.

• 4 For the purpose of determining eligibility for a disability or death benefit under the legislation of Brazil, a calendar year which is a period of coverage under the Canada Pension Plan shall be considered as 12 months of coverage under the legislation of Brazil.

ARTICLE 12Periods under the Legislation of a Third State

• 1 If a person is not eligible for a benefit on the basis of the periods of coverage under the legislation of the Parties, totalized in accordance with Article 11, the eligibility of that person for that benefit shall be determined by totalizing these periods and periods of coverage completed under the legislation of a third State with which both Parties are bound by social security instruments which provide for the totalizing of periods, provided they do not overlap. In cases where periods of coverage completed under the legislation of a third State are applied by the competent institutions of both Parties, the periods shall not be counted twice.

• 2 If a person is not eligible for a benefit under the legislation of Brazil on the basis of periods of coverage completed under the legislation of Brazil, totalized in accordance with Article 11, or with paragraph (1), the eligibility of that person for that benefit shall be determined by totalizing those periods and periods of coverage completed under the legislation of a third State with which only Brazil is bound by a social security instrument which provides for the totalizing of periods.

ARTICLE 13Minimum Period for Totalization

If the total of the periods of coverage accumulated under the legislation of a Party is less than one year and if, taking into account only those periods, a right to a benefit does not exist under the legislation of that Party, the competent institution of that Party shall not be required to pay a benefit in respect of those periods by virtue of this Agreement. These periods of coverage shall, however, be taken into consideration by the competent institution of the other Party to determine eligibility for the benefits of that Party through the application of Chapter I.

Chapter IIBenefits under the Legislation of Canada

ARTICLE 14Benefits under the Old Age Security Act

• 1 If a person is eligible for a pension or allowance under the Old Age Security Act solely through the application of the totalizing provisions of Chapter I, the competent institution of Canada shall calculate the amount of the pension or allowance payable to that person in accordance with the provisions of that Act governing the payment of a partial pension or allowance, exclusively on the basis of the periods of residence in Canada which may be considered under that Act.

• 2 Paragraph 1 shall also apply to a person outside Canada who would be eligible for a full pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for the payment of a pension outside Canada.

• 3 Canada shall pay an Old Age Security pension to a person who is outside Canada only if that person’s periods of residence, when totalized as provided in Chapter I, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for the payment of a pension outside Canada.

ARTICLE 15Benefits under the Canada Pension Plan

If a person is eligible for a benefit solely through the application of the totalizing provisions of Chapter I, the competent institution of Canada shall calculate the amount of benefit payable to that person in the following manner:

• 1 the earnings-related portion of the benefits shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan;

• 2 the flat-rate portion of the benefit shall be pro-rated by multiplying:

  • (a) the flat-rate portion of the benefit determined in accordance with the provisions of the Canada Pension Plan

  by

  • (b) the fraction representing the ratio of the periods of contributions to the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish eligibility for that benefit, but in no case shall that fraction exceed the value of one.

Chapter IIIBenefits under the Legislation of Brazil

ARTICLE 16Calculating the Amount of Benefit Payable

• 1 If a person is eligible for a benefit under the legislation of Brazil without the application of the totalizing provisions of Chapter I, the competent institution of Brazil shall determine the amount of the benefit payable exclusively on the basis of the periods of coverage which that person has completed under the legislation of Brazil.

• 2 If a person is eligible for a benefit under the legislation of Brazil solely through the application of the totalizing provisions of Chapter I, the competent institution of Brazil:

  • (a) shall calculate the theoretical amount of the benefit which would be payable if the total periods of coverage had been completed under the legislation of Brazil;

  • (b) on the basis of that theoretical amount, shall then calculate the actual amount of the benefit payable according to the ratio between the periods of coverage completed under the legislation of Brazil and the total of the periods of coverage under the legislation of both Parties not to exceed the minimum period necessary to establish eligibility to the benefit;

  • (c) shall in no case apply sub-paragraph (a) so as to result in a theoretical benefit amount which is lower than the minimum guarantee provided under the legislation of Brazil.

PART IVAdministrative and Miscellaneous Provisions

ARTICLE 17Administrative Arrangement

• 1 The Parties shall conclude an administrative arrangement which establishes the measures necessary for the application of this Agreement.

• 2 The Parties shall designate the liaison agencies in that arrangement.

ARTICLE 18Exchange of Information and Mutual Assistance

• 1 The competent authorities and institutions responsible for the application of this Agreement shall:

  • (a) to the extent permitted by the laws which they administer, communicate to each other any information necessary for the application of this Agreement and the legislation to which the Agreement applies;

  • (b) to the extent permitted by the laws which they administer, communicate to each other any information necessary for the application of this Agreement and the legislation to which the Agreement applies;

  • (c) communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of this Agreement.

• 2 The assistance referred to in sub-paragraph 1(b) shall be provided free of charge, subject to any provision contained in the administrative arrangement concluded pursuant to Article 17 for the reimbursement of certain types of expenses.

• 3 Unless disclosure is required under the laws of a Party, any information about a person which is transmitted in accordance with this Agreement to that Party by the other Party is confidential and shall be used only for purposes of implementing this Agreement and the legislation to which this Agreement applies. Information about a person obtained by the receiving Party shall not be disclosed subsequently to any other person, body or country unless the sending Party is notified and is in concurrence and the information is disclosed only for the same purpose for which it was originally disclosed.

ARTICLE 19Exemption or Reduction of Dues, Fees and Charges

• 1 If any exemption from or reduction of legal dues, consular fees and administrative charges is included in the legislation of a Party to a category of persons in connection with the issuing of any certificate or document required for the application of that legislation, this exemption or reduction shall be extended by the first Party to the same category of persons for the application of the legislation of the other Party.

• 2 Documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities and similar formality.

ARTICLE 20Language of Communication

For the application of this Agreement, the competent authorities and institutions of the Parties may communicate directly with one another in any official language of either Party.

ARTICLE 21Submitting a Claim, Notice or Appeal

• 1 Claims, notices and appeals concerning eligibility for, or the amount of, a benefit under the legislation of a Party which should, for the purposes of that legislation, have been submitted within a prescribed period to a competent authority or institution of that Party, but which are submitted within the same period to a competent authority or institution of the other Party, shall be treated as if they had been submitted to the competent authority or institution of the first Party. The date of submission of claims, notices and appeals to the competent authority or institution of the other Party shall be deemed to be the date of submission to the competent authority or institution of the first Party.

• 2 The date that a claim for a benefit is submitted under the legislation of a Party shall be deemed to be the date of submission of a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant at the time of application provides information indicating that periods of coverage have been completed under the legislation of the other Party. This paragraph shall not apply to a claim submitted before the date of entry into force of this Agreement or if the applicant requests that the claim to the benefit under the legislation of the other Party be delayed.

• 3 The competent authority or institution to which a claim, notice or appeal has been submitted shall transmit it without delay to the competent authority or institution of the other Party.

ARTICLE 22Payment of Benefits

• 1 A Party shall pay benefits under this Agreement to a beneficiary who resides outside its territory in a freely convertible currency according to the legislation it applies.

• 2 A Party shall pay benefits under this Agreement without any deduction for its administrative expenses.

ARTICLE 23Resolution of Disputes

• 1 The competent authorities of the Parties shall resolve, to the extent possible, any disputes which arise in interpreting or applying this Agreement according to its fundamental principles.

• 2 Any dispute which has not been resolved in accordance with paragraph 1 shall be promptly settled by negotiations between the Parties.

ARTICLE 24Understandings with a Province of Canada

The relevant authority of Brazil and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada insofar as those understandings are not inconsistent with the provisions of this Agreement.

PART VTransitional and Final Provisions

ARTICLE 25Transitional Provisions

• 1 Any period of coverage completed before the date of entry into force of this Agreement shall be taken into account for the purposes of determining the right to a benefit under this Agreement and its amount.

• 2 The provisions of this Agreement shall not confer any right to receive payment of a benefit for a period before the date of entry into force of this Agreement.

• 3 Subject to paragraph 2, a benefit, other than a lump sum payment, shall be paid under this Agreement in respect of events which happened before the date of entry into force of this Agreement.

• 4 Subject to paragraph 2, a claim for calculating a Brazilian retirement benefit under the provisions of this Agreement which is presented within 12 months of the entry into force of this Agreement shall be payable once the necessary conditions have been met. In no case, however, shall the payment of a benefit be made for a period not permitted under the legislation of Canada specified in Article 2.

• 5 For the application of Article 7, in the case of a person whose detachment commenced prior to the date of entry into force of this Agreement, the period of such detachment shall be considered to have begun on the date of entry into force of this Agreement.

ARTICLE 26Duration and Termination

• 1 This Agreement shall remain in force without any limitation on its duration. It may be terminated at any time by either Party giving 12 months’ notice in writing to the other Party.

• 2 In the event that this Agreement is terminated, any right acquired by a person in accordance with its provisions shall be maintained. This Agreement shall continue to have effect in relation to all persons who, prior to its termination, had applied for rights, and would have acquired rights by virtue of this Agreement, had it not been terminated.

ARTICLE 27Entry into Force

This Agreement shall enter into force on the first day of the fourth month following the month in which each Party shall have received from the other Party written notification through the diplomatic channel that it has complied with all requirements for the entry into force of this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in duplicate at Brasilia, this 8th day of August 2011, in the English, French and Portuguese languages, each text being equally authentic.