Pension Benefits Standards Act, 1985

Marginal note:Amounts to be held in trust

• 8 (1) An employer shall ensure, with respect to its pension plan, that the following amounts are kept separate and apart from the employer’s own moneys, and the employer is deemed to hold the amounts referred to in paragraphs (a) to (c) in trust for members of the pension plan, former members, and any other persons entitled to pension benefits under the plan:

  • (a) the moneys in the pension fund,

  • (b) an amount equal to the aggregate of the following payments that have accrued to date:

    • (i) the prescribed payments, and

    • (ii) the payments that are required to be made under a workout agreement; and

  • (c) all of the following amounts that have not been remitted to the pension fund:

    • (i) amounts deducted by the employer from members’ remuneration, and

    • (ii) other amounts due to the pension fund from the employer, including any amounts that are required to be paid under subsection 9.14(2) or 29(6).

• Marginal note:Where bankruptcy, etc., of employer

  (2) In the event of any liquidation, assignment or bankruptcy of an employer, an amount equal to the amount that by subsection (1) is deemed to be held in trust shall be deemed to be separate from and form no part of the estate in liquidation, assignment or bankruptcy, whether or not that amount has in fact been kept separate and apart from the employer’s own moneys or from the assets of the estate.

• Marginal note:Administration of pension plan and fund

  (3) The administrator shall administer the pension plan and pension fund as a trustee for the employer, the members of the pension plan, former members, and any other persons entitled to pension benefits under the plan.

• Marginal note:Standard of care

  (4) In the administration of the pension plan and pension fund, the administrator shall exercise the degree of care that a person of ordinary prudence would exercise in dealing with the property of another person.

• Marginal note:Manner of investing assets

  (4.1) The administrator shall invest the assets of a pension fund in accordance with the regulations and in a manner that a reasonable and prudent person would apply in respect of a portfolio of investments of a pension fund.

• Marginal note:Investment choices

  (4.2) A pension plan may permit a member, former member, survivor or former spouse or former common law partner of a member or former member to make investment choices with respect to their account maintained in respect of a defined contribution provision or with respect to their account maintained for additional voluntary contributions.

• Marginal note:Administrator’s duty

  (4.3) If a pension plan permits a member, former member, survivor or former spouse or former common law partner of a member or former member to make investment choices, the administrator must offer investment options of varying degrees of risk and expected return that would allow a reasonable and prudent person to create a portfolio of investments that is well adapted to their retirement needs.

• Marginal note:Deemed compliance with subsection (4.1)

  (4.4) With respect to the account for which an investment choice is made by a member, former member, survivor or former spouse or former common law partner of a member or former member, if an administrator offers investment options in accordance with subsection (4.3) and the regulations, that administrator is deemed to comply with subsection (4.1).

• Marginal note:Special knowledge or skill

  (5) Without limiting the generality of subsection (4), an administrator who in fact possesses, or by reason of profession or business ought to possess, a particular level of knowledge or skill relevant to the administration of a pension plan or pension fund shall employ that particular level of knowledge or skill in the administration of the pension plan or pension fund.

• Marginal note:Administrator not liable

  (5.1) An administrator is not liable for contravening subsection (4), (4.1) or (5) if the contravention occurred because the administrator relied in good faith on

  • (a) financial statements of the pension plan prepared by an accountant, or a written report of the auditor or auditors of the plan, that have been represented to the administrator as fairly reflecting the financial condition of the plan; or

  • (b) a report of an accountant, an actuary, a lawyer, a notary or another professional person whose profession lends credibility to the report.

• Marginal note:Conflict of interest

  (6) A person shall not accept an appointment to a body referred to in paragraph 7(1)(a) or (b) or subparagraph 7(1)(c)(ii) if there would be a material conflict of interest between that person’s role as a member of that body and that person’s role in any other capacity.

• Marginal note:Not a conflict of interest

  (6.1) For the purposes of subsection (6), merely being entitled to a pension benefit or having an interest in a pension benefit credit does not constitute a conflict of interest.

• Marginal note:Eliminating conflict of interest

  (7) A person described in subsection (6) shall, within ninety days after becoming aware that a material conflict of interest exists,

  • (a) eliminate that conflict of interest; or

  • (b) resign as a member of that body.

• Marginal note:Validity of documents

  (8) A document issued by a board of trustees or other similar body or a pension committee is valid notwithstanding a material conflict of interest of a member thereof.

• Marginal note:Removal of member

  (9) If a person contravenes subsection (6) or (7), the Superintendent or any other interested person may apply to a court of competent jurisdiction for an order that that person be replaced, and the court may make an order on such terms as it considers appropriate.

• Marginal note:Other conflicts of interest

  (10) If there is a material conflict of interest between the role of an employer who is an administrator and their role in any other capacity, the administrator

  • (a) shall, within thirty days after becoming aware that a material conflict of interest exists, declare that conflict of interest to the pension council or to the members of the pension plan; and

  • (b) shall act in the best interests of the members of the pension plan.

• Marginal note:Court order

  (11) If an administrator contravenes subsection (10), a court of competent jurisdiction may, on application by the Superintendent or any other interested person, make any order on such terms as the court considers appropriate.