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

Regulations are current to 2021-10-07 and last amended on 2016-09-30. 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 the definition wages in 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.

  • SOR/2016-258, s. 1

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 justify a longer period, be made within 56 days after the latest of the following days:

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

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

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

  • 2009, c. 2, s. 352
  • SOR/2016-258, s. 2(E)

 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 justify 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.

  • SOR/2016-258, s. 3(E)

 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 justify a longer period, be made within 60 days after the day on which the applicant is notified of the Minister’s decision.

  • SOR/2016-258, s. 4(E)

 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 delivered 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 after the date of bankruptcy or after 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 justify 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
  • SOR/2016-258, s. 5(E)

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 deliver 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 after the date of bankruptcy or after 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 justify a longer period.

  • 2009, c. 2, s. 354
  • SOR/2016-258, s. 6

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 justify a longer period and the person makes a written request to the Minister for an 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.

  • SOR/2016-258, s. 7

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

AMENDMENTS NOT IN FORCE

  • — SOR/2021-196, s. 1

    • 1 The Wage Earner Protection Program RegulationsFootnote 1 are amended by adding the following after section 3:

      Foreign Proceedings

      • 3.1 For the purposes of subsection 5(2) of the Act, a court may determine whether the foreign proceeding is in respect of a former employer that has terminated all of its employees in Canada other than any retained to wind down its business operations.

      Proceedings Under Bankruptcy and Insolvency Act or Companies’ Creditors Arrangement Act

      • 3.2 For the purposes of subsection 5(5) of the Act, a court may determine whether the former employer is the former employer all of whose employees in Canada have been terminated other than any retained to wind down its business operations.

  • — SOR/2021-196, s. 2

    • 2 Section 6 of the Regulations is replaced by the following:

      • 6 Any amount that an individual has received in respect of eligible wages or in respect of the termination of employment that is paid by the former employer or from any other source, excluding any amounts received through other federal or provincial programs, after the date of the bankruptcy or receivership, or the day on which a court determines that the former employer meets the criteria set out in section 3.1 or 3.2, as the case may be, is the amount for the purposes of subsection 7(1.1) of the Act.

  • — SOR/2021-196, s. 3

    • 3 Section 9 of the Regulations is replaced by the following:

        • 9 (1) An application for payment shall be made within 56 days after the latest of the following days:

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

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

          • (c) the day on which a court determines that the former employer meets the criteria set out in section 3.1 or 3.2, as the case may be.

        • (2) The application may be submitted after the expiry of the 56-day period if circumstances beyond the control of the applicant prevented them from submitting the application during that period.

  • — SOR/2021-196, s. 4

    • 4 Section 11 of the Regulations is replaced by the following:

        • 11 (1) An applicant shall request a review under section 11 or 32.1 of the Act in writing within 30 days after the day on which the applicant is informed under subsection 10(1) or 32(1) of the Act, as the case may be, of the Minister’s determination.

        • (2) The request may be submitted after the expiry of the 30-day period if circumstances beyond the control of the applicant prevented them from submitting the request during that period.

  • — SOR/2021-196, s. 5

    • 5 The heading before section 13 and sections 13 and 14 of the Regulations are repealed.

  • — SOR/2021-196, s. 6

    • 6 Paragraph 15(1)(a) of the Regulations is replaced by the following:

      • (a) the date of bankruptcy or receivership, or the day on which a court determines that the former employer meets the criteria set out in section 3.1 or 3.2, as the case may be;

  • — SOR/2021-196, s. 7

    • 7 Paragraph 16(1)(a) of the Regulations is replaced by the following:

      • (a) the date of bankruptcy or receivership, or the day on which a court determines that the former employer meets the criteria set out in section 3.1 or 3.2, as the case may be;

  • — SOR/2021-196, s. 8

    • 8 Sections 18 to 20 of the Regulations are replaced by the following:

        • 18 (1) For the purposes of section 22.1 of the Act, the Minister shall, on application by the trustee, pay the fees and expenses if

          • (a) the trustee has submitted a claim in the form approved by the Minister;

          • (b) the claim indicates a deficit; and

          • (c) the amount of any third-party deposits and guarantees in respect of the fees and expenses is less than the deficit.

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

          • (a) the amount by which the deficit exceeds the amount of any third-party deposits and guarantees; and

          • (b) the amount determined by the formula

            A + B

            where

            A
            is the amount obtained by adding $1,000, as adjusted, to
            • (i) $150, as adjusted, for each of the first 10 claims, and

            • (ii) $100, as adjusted, for each additional claim; and

            B
            is, the total of the fees and expenses to a maximum of $6,000, as adjusted, not including applicable sales taxes, incurred
            • (i) for taking possession of the property, making an inventory and securing and insuring the property,

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

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

            • (iv) for the official receiver and the registrar, and

            • (v) for all of the 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, as adjusted.

        • (3) Despite subsection (2), the amount determined for B in paragraph (2)(b) is equal to 0 if the amount determined in accordance with the following formula is more than $10,000, as adjusted:

          X – Y

          where

          X
          is equal to the total value of the former employer’s assets; and
          Y
          is the total value of the claims that have priority over the fees and expenses of the trustee.
        • (4) The Minister may request that the trustee provide a copy of the final statement of receipts and disbursements.

        • 19 (1) The amounts, as indicated in subsections 18(2) and (3), that are to be adjusted are to be done so on January 1 of each year in accordance with the percentage increase to the consumer price index for the year ending on September 30 of the previous year.

        • (2) The consumer price index is the annual average all-items consumer price index for Canada (not seasonally adjusted) published by Statistics Canada.

        • (3) The adjusted amounts are to be rounded

          • (a) in the case of those set out in the description of A in paragraph 18(2)(b), to the nearest dollar;

          • (b) subject to paragraph (c), in the case of those set out in the description of B in paragraph 18(2)(b) and in subsection 18(3), to the nearest $500 increment; and

          • (c) in the case of those set out in subparagraph (v) of the description of B in paragraph 18(2)(b), to the nearest $100 increment.

        • (4) If, as a result of rounding, an amount set out in the description of B in subsection (2) remains the same as it was for the previous year, the unrounded adjusted amount is to be used for the purposes of the adjustment for the following year.

      • 20 The notice referred to in subsections 36(1.1) and (1.2) of the Act is to be provided to the Minister within 30 days after the day on which the individual becomes aware of the action, proceeding, decision or order, as the case may be, and include

        • (a) the name, address, telephone number and social insurance number of the individual;

        • (b) in the case of a notice referred to in subsection 36(1.1),

          • (i) the date the action or proceeding was commenced,

          • (ii) the nature of the action or proceeding,

          • (iii) the name of the person who commenced the action or proceeding and their contact information; and

        • (c) in the case of a notice referred to in subsection 36(1.2), the date the decision or order was made and, if a payment has been received as a result of the decision or order,

          • (i) the amount of the payment broken down by the components of wages to which it relates and by recipient,

          • (ii) the contact information of the recipients,

          • (iii) the time period for which the payment relates, and

          • (iv) the source of the payment.

  • — SOR/2021-196, s. 9

    • 9 The Wage Earner Protection Program Regulations, as they read immediately before the day on which these Regulations come into force, continue to apply where the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer occurs before the day on which these Regulations come into force.

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