Pension Benefits Standards Regulations, 1985

16 (1) For the purpose of the definition of “surplus” in subsection 2(1) of the Act, the amount by which the assets of the plan exceed its liabilities shall be determined by subtracting the liabilities of the plan from its assets, as those assets and liabilities are shown in an actuarial report filed with the Superintendent under subsection 12(3) of the Act and prepared in accordance with accepted actuarial practice, and, in the case of a plan that has not been fully terminated, as those assets and liabilities are valued in the report according to a going concern valuation.

(2) A refund of all or part of a surplus may be made if

• (a) in respect of a plan that has not been fully terminated, the surplus exceeds the greater of the following amounts that are attributable to the defined benefit provisions of the plan, namely,

  • (i) two times the employer’s contribution to the normal cost of the plan, and

  • (ii) 25% of the liabilities of the plan, determined according to a solvency valuation;

• (b) the administrator of the plan has given notice in writing to the plan members, former members and any other person who is entitled to a pension benefit under the terms of the plan that the employer intends to withdraw all or part of the surplus and that they may make any comments in writing to the Superintendent concerning the refund;

• (c) 30 days have gone by after the day on which the administrator gave notice under paragraph (b);

• (d) the Superintendent has consented to the refund of all or part of the surplus and has given notice of that consent in writing to the persons referred to in paragraph (b) who made comments in writing concerning the refund; and

• (e) 14 days have gone by after the day on which the Superintendent gave notice under paragraph (d).

(3) For the purpose of this section, liabilities accrued under the defined contribution provisions of a plan as the result of a conversion of defined benefit provisions to defined contribution provisions are deemed not to be attributable to the defined benefit provisions of the plan.

(4) In respect of a plan that has not been fully terminated, the surplus or part of it that may be refunded may be no greater than the amount by which the surplus exceeds the greater of the following amounts that are attributable to the defined benefit provisions of the plan:

• (a) two times the employer’s contribution to the normal cost of the plan, and

• (b) 25% of the liabilities of the plan, determined according to a solvency valuation.

(5) The following classes of persons are prescribed for the purpose of paragraph 9.2(3)(b) of the Act:

• (a) any persons who are entitled to pension benefits payable from the plan, but not including plan members;

• (b) survivors, spouses, former spouses, common-law partners and former common-law partners of members or former members if the survivor, spouse, former spouse, common-law partner or former common-law partner is entitled to pension benefits or pension benefit credits payable from the plan; and

• (c) any persons for whom the administrator has purchased annuities, other than life annuities purchased under section 26 of the Act, but not including plan members.