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

Separate Pension Plan

Marginal note:Establishment of separate pension plan

• 10.4 (1) The Superintendent may direct the administrator of a pension plan that is subject to the pension legislation of more than one jurisdiction to

  • (a) establish a separate pension plan for members employed in included employment, former members who were employed in included employment and any survivors of those members or former members; and

  • (b) transfer assets and liabilities relating to the members and former members of the separate pension plan, as well as to any survivors of those members or former members, from the original pension plan to the separate pension plan.

• Marginal note:Comparable plan

  (2) A separate pension plan must be comparable, in the opinion of the Superintendent, to the original pension plan.

Directions of Compliance

Marginal note:Superintendent’s directions to administrators

• 11 (1) If, in the opinion of the Superintendent, an administrator, an employer or any person is, in respect of a pension plan, committing or about to commit an act, or pursuing or about to pursue any course of conduct, that is contrary to safe and sound financial or business practices, the Superintendent may direct the administrator, employer or other person to

  • (a) cease or refrain from committing the act or pursuing the course of conduct; and

  • (b) perform such acts as in the opinion of the Superintendent are necessary to remedy the situation.

• Marginal note:Directions in the case of non-compliance

  (2) If, in the opinion of the Superintendent, a pension plan does not comply with this Act or the regulations or is not being administered in accordance with this Act, the regulations or the plan, the Superintendent may direct the administrator, the employer or any person to

  • (a) cease or refrain from committing the act or pursuing the course of conduct that constitutes the non-compliance; and

  • (b) perform such acts as in the opinion of the Superintendent are necessary to remedy the situation.

• Marginal note:Opportunity for representations

  (3) Subject to subsection (4), no direction shall be issued under subsection (1) or (2) unless the Superintendent gives the administrator, employer or other person a reasonable opportunity to make written representations.

• Marginal note:Temporary direction

  (4) If, in the opinion of the Superintendent, the length of time required for representations to be made under subsection (3) might be prejudicial to the interests of the members, former members or any other persons entitled to pension benefits under the pension plan, the Superintendent may make a direction with respect to the matters referred to in subsection (1) or (2) that has effect for a period of not more than 15 days.

• Marginal note:Continued effect

  (5) A temporary direction under subsection (4) continues to have effect after the expiry of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the administrator, employer or other person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.

Marginal note:Revocation of registration

11.1 The Superintendent may revoke the registration and cancel the certificate of registration in respect of a pension plan if the administrator of the plan does not comply with a direction under section 11 within sixty days, or such longer period as the Superintendent may determine, after being informed by the Superintendent of the failure to comply. The Superintendent shall notify the administrator of the measures taken, including the date of the revocation and cancellation.

General Requirements

Duty to Provide Information

Marginal note:Annual reporting requirements

• 12 (1) The administrator of a pension plan shall file with the Superintendent — annually or at any other intervals or times that the Superintendent directs — an information return relating to that pension plan, containing the prescribed information.

• Marginal note:Actuarial reports, financial statements and other information

  (2) The administrator of a pension plan shall file with the Superintendent actuarial reports, financial statements, and any other information required by or under the regulations at any intervals or times that the Superintendent directs.

• Marginal note:Employer

  (3) The employer shall file with the Superintendent any information required by or under the regulations at any intervals or times that the Superintendent directs.

• Marginal note:Actuarial reports and financial statements

  (3.1) Except as otherwise specified by the Superintendent,

  • (a) the actuarial reports must be prepared in accordance with the standards of practice adopted by the Canadian Institute of Actuaries; and

  • (b) the financial statements must be prepared in accordance with generally accepted accounting principles, the primary source of which is the Handbook of the Chartered Professional Accountants of Canada.

• Marginal note:Form and manner of filings and time limit

  (4) Every document required to be filed under this section shall be filed in the form and manner, if any, that the Superintendent directs, and unless otherwise directed by the Superintendent, within six months after the end of the plan year to which the document relates.

Marginal note:Information to members

13 The administrator of a pension plan must provide the members, former members and any other persons entitled to pension benefits under the plan with any information that the Superintendent specifies, at the time and in the manner specified by the Superintendent.

Eligibility for Membership

Marginal note:Eligibility (full-time employees)

• 14 (1) Each employee who is engaged to work on a full-time basis for an employer and is a member of a class of employees for which a pension plan is provided by that employer shall be eligible to become a member of that pension plan on and after

  • (a) the day on which the employee completes twenty-four months of continuous employment with the employer, in the case of a pension plan other than a multi-employer pension plan; or

  • (b) in the case of a multi-employer pension plan, the day on which both the following requirements have been fulfilled, namely,

    • (i) twenty-four months have elapsed since the employee was first employed with a participating employer, and

    • (ii) the employee has earned, in respect of employment with the participating employers, at least thirty-five per cent of the Year’s Maximum Pensionable Earnings in each of two consecutive calendar years after December 31, 1984, or has fulfilled an alternative requirement that, in the Superintendent’s opinion, is reasonably equivalent.

• Marginal note:Optional provision

  (2) Notwithstanding subsection (1), a pension plan may provide, in respect of employees who are engaged to work on a full-time basis, that membership in the plan is compulsory, except for employees who, because of their religious beliefs, object to becoming members of the plan.

Marginal note:Eligibility (part-time employees)

• 15 (1) Subject to regulations made under subsection (5), where a pension plan is provided for members of a class of employees who are engaged to work on a full-time basis for an employer, each employee who is engaged to work on a part-time basis for that employer and is a member of that class of employees shall be eligible to become a member of that pension plan on and after the day on which both the following requirements have been fulfilled, namely,

  • (a) either

    • (i) the employee completes twenty-four months of continuous employment with the employer, or

    • (ii) in the case of a multi-employer pension plan, twenty-four months have elapsed since the employee was first employed with a participating employer; and

  • (b) the employee has earned, in respect of employment with the employer (or participating employers, in the case of a multi-employer pension plan), at least thirty-five per cent of the Year’s Maximum Pensionable Earnings in each of two consecutive calendar years after December 31, 1984, or has fulfilled an alternative requirement that, in the Superintendent’s opinion, is reasonably equivalent.

• Marginal note:Alternative: separate plan

  (2) An administrator may meet the requirements of subsection (1) by providing a separate pension plan for employees who are engaged to work on a part-time basis that, in the opinion of the Superintendent, is reasonably comparable, on balance, to the plan covering the employees who are engaged to work on a full-time basis.

• Marginal note:Drop in income

  (3) An employee who is engaged to work on a part-time basis, is a member of a pension plan and is employed continuously shall not cease to be a member of the plan by reason only of having earned less than thirty-five per cent of the Year’s Maximum Pensionable Earnings in a calendar year.

• Marginal note:Optional provision

  (4) Notwithstanding subsections (1) to (3), a pension plan may provide, in respect of employees who are engaged to work on a part-time basis, that membership in the plan is compulsory, except for employees who, because of their religious beliefs, object to becoming members of the plan.

• Marginal note:Regulations altering subsection (1) requirement

  (5) The Governor in Council may make regulations, in relation to one or more pension plans or to all pension plans, deeming subparagraphs (1)(a)(i) and (ii) to read as if the references therein to “twenty-four months” were references to such longer period as is prescribed and deeming paragraph (1)(b) to read as if the reference therein to “thirty-five per cent” were a reference to such lower percentage, including zero, as is prescribed.

Entitlement to Immediate Pension Benefit

Marginal note:Entitlement at pensionable age

• 16 (1) A pension plan shall provide that each member is entitled to an immediate pension benefit on attaining pensionable age.

• Marginal note:Early retirement

  (2) Notwithstanding the pensionable age specified by a pension plan, members and former members of the plan shall be eligible, commencing ten years before pensionable age, to receive an immediate pension benefit based on the period of employment and salary up to the actual retirement date, but a plan is not required to provide an immediate pension benefit commencing earlier than ten years before pensionable age.

• Marginal note:Minimum period of membership

  (3) A pension plan may require a minimum period of membership, not exceeding two years, in order for a member to be eligible to receive an immediate pension benefit.

• Marginal note:Pension reduced

  (4) An immediate pension benefit that commences before pensionable age pursuant to subsection (2) may be reduced, provided that its actuarial present value is not less than the aggregate of

  • (a) the actuarial present value of the pension that would have been payable commencing at pensionable age, and

  • (b) the actuarial present value of any other benefit to which the member would have been entitled had the member remained a member of the pension plan until pensionable age.

• Marginal note:Employment after pensionable age

  (5) Where a pension plan provides generally that a member’s period of employment or the member’s salary during that period, or both, affect the member’s pension benefit, it shall provide that, where a member continues employment after attaining pensionable age and is not receiving a pension benefit in respect of employment with the current employer, the member’s period of employment after pensionable age or the member’s salary during that period, or both, as the case may be, shall be taken into account in calculating the member’s pension benefit, subject to any term of the pension plan

  • (a) fixing a maximum number of years of employment that can be taken into account under the plan for purposes of determining the pension benefit; or

  • (b) fixing a maximum amount of the pension benefit.

• Marginal note:Variable amount

  (6) A pension plan may provide that a member or former member may elect to receive an immediate pension benefit the amount of which

  • (a) is varied by reference to the amount of any pension payable under

    • (i) the Old Age Security Act, and

    • (ii) either the Canada Pension Plan or a provincial pension plan as defined in section 3 of the Canada Pension Plan; or

  • (b) is varied on any other basis approved by the Superintendent.

Phased Retirement Benefit

Marginal note:Definitions

• 16.1 (1) The following definitions apply in this section.

  phased retirement benefit

  phased retirement benefit means a pension benefit that is equal to a portion of the immediate pension benefit to which a person is entitled under subsection 16(1) or which they are eligible to receive under subsection 16(2). (prestation de retraite progressive)

  phased retirement period

  phased retirement period means the period in respect of which the phased retirement benefit is to be paid. (période de retraite progressive)

• Marginal note:Phased retirement benefit

  (2) A pension plan may provide for the payment of a phased retirement benefit.

• Marginal note:Conditions

  (3) A phased retirement benefit is only to be paid to a person if

  • (a) the person enters into a written agreement with an employer who contributes to the pension plan from which the phased retirement benefit is to be paid, or with a prescribed administrator, that evidences their consent to its payment;

  • (b) in the case of a person who was receiving a joint and survivor pension benefit prior to the phased retirement period, the person’s spouse or common-law partner who would receive that joint and survivor pension benefit on the death of the person consents in the prescribed form to the cessation of the payment of the joint and survivor pension benefit;

  • (c) the employer provides a copy of the agreement referred to in paragraph (a) to the administrator of the pension plan from which the phased retirement benefit is to be paid;

  • (d) the person accrues a pension benefit during the phased retirement period under circumstances to which subsection 8503(19) of the Income Tax Regulations applies; and

  • (e) the whole of the pension plan from which the phased retirement benefit is to be paid has not been terminated.

• Marginal note:Rules — during phased retirement period

  (4) During a phased retirement period

  • (a) the person is deemed to be a member;

  • (b) subsection 2(3) does not apply and the person is deemed not to be receiving an immediate pension benefit;

  • (c) the administrator of the pension plan from which the phased retirement benefit is to be paid shall not pay the immediate pension benefit to which the person would otherwise be entitled under subsection 16(1) or which they would otherwise be eligible to receive under subsection 16(2);

  • (d) paragraph 18(1)(b) and subsections 36(1) and (4) do not apply to an agreement or arrangement that may be entered into for the payment of the phased retirement benefit;

  • (e) section 21 does not apply to the calculation of the phased retirement benefit;

  • (f) section 22 does not apply to the phased retirement benefit; and

  • (g) in the case of a person who, prior to the phased retirement period, was receiving an immediate pension benefit from the pension plan from which the phased retirement benefit is to be paid, the administrator of that pension plan shall not pay the immediate pension benefit and an election that was made under subsection 22(5) is void or, in Quebec, null unless it was made under provincial property law within the meaning of subsection 25(1).

• Marginal note:Rules — after phased retirement period

  (5) At the end of a phased retirement period

  • (a) the pension benefit accrued during the phased retirement period is to be treated as vested without regard to conditions as to age, period of membership in the pension plan or period of employment;

  • (b) the immediate pension benefit to which the person is entitled under subsection 16(1) or which they are eligible to receive under subsection 16(2) is, unless otherwise prescribed, to be calculated without regard to the amount of the phased retirement benefit received;

  • (c) an election under subsection 22(5) that is void or, in Quebec, null under paragraph (4)(g) remains void or, in Quebec, null;

  • (d) subsection 26(2) applies as if it contained no reference to “but before the commencement of payment of a pension benefit”; and

  • (e) in the case of a phased retirement period that ends as a result of the death of a person,

    • (i) the person is deemed to have retired for purposes of the survivor benefit,

    • (ii) the person is deemed to have been entitled to the joint and survivor pension benefit payable pursuant to section 22, without regard to subsection 22(5), in respect of the immediate pension benefit to which the person would otherwise be entitled under subsection 16(1) or which they would otherwise be eligible to receive under subsection 16(2), and

    • (iii) subsections 23(5) to (7) apply.