Pension Benefits Standards Act, 1985

Marginal note:Refund of surplus to the employer

• 9.2 (1) If an actuarial report prepared by a designated actuary or filed under subsection 12(2) indicates that there is a surplus, no part of that surplus may be refunded to the employer unless

  • (a) the employer establishes that

    • (i) it is entitled to the surplus, or part of it, under the pension plan, or

    • (ii) it has a claim to the surplus, or part of it, under this section;

  • (b) the requirements of the regulations made under paragraph 39(1)(h.1) are met; and

  • (c) the Superintendent consents to the refund.

• Marginal note:Consent to surplus

  (2) In deciding whether to consent to a refund, the Superintendent shall recognize the claim of the employer to the surplus, or part of it, established under this section.

• Marginal note:Claim to surplus

  (3) An employer has a claim to the surplus, or part of it, if, after being notified of the employer’s proposal for a refund of that surplus or part of it, at least two thirds of the persons in each of the following categories notify the employer that they consent to the proposal:

  • (a) members of the pension plan; and

  • (b) former members of the plan and any other persons within a prescribed class.

• Marginal note:Submission to arbitration

  (4) Subject to subsection (5), if more than one half but fewer than two thirds of the persons in each of the categories referred to in subsection (3) consented to the proposal, the employer may, or if the whole of the pension plan is terminated shall, submit the proposal to arbitration. The employer shall notify the Superintendent and the persons in those categories if the proposal is to be submitted to arbitration.

• Marginal note:Liquidation of employer

  (5) The employer’s claim to the surplus, or part of it, shall be submitted to arbitration within 18 months after the termination of the whole of the pension plan, or any longer period specified by the Superintendent, if

  • (a) the employer has not established a claim to the surplus; and

  • (b) the employer is in the process of being liquidated.

  The employer shall notify the Superintendent and the persons in the categories referred to in subsection (3) that the claim is to be submitted to arbitration.

• Marginal note:Deemed agreement

  (6) If a proposal or claim is submitted to arbitration, the employer and all interested persons are deemed to have agreed to have the employer’s claim determined by the arbitration.

• Marginal note:Choice of arbitrator

  (7) The arbitrator shall be chosen by the employer and the persons in the categories set out in subsection (3). If they cannot agree on an arbitrator within the prescribed period, the Superintendent shall choose the arbitrator.

• Marginal note:Arbitration

  (8) The arbitrator is not bound by any legal or technical rules of evidence in conducting any matter that comes before the arbitrator, and shall deal with it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

• Marginal note:Retention of experts

  (9) An arbitrator may retain any experts that the arbitrator considers necessary.

• Marginal note:Costs of arbitration

  (10) Subject to the provisions of the pension plan, the parties to an arbitration shall pay its costs in the amount, subject to the approval of the Superintendent, and in the proportion that the arbitrator determines.

• Marginal note:Issuance of decision

  (11) The arbitrator shall issue a written decision with reasons, file them with the Superintendent within ten days after issuing them and make them available for inspection by any interested person.

• Marginal note:Scheme of division

  (12) In respect of a claim submitted to arbitration under subsection (5), the arbitrator may impose a scheme of division of the surplus, or of part of it, between the parties to the arbitration.

• Marginal note:Decision binding

  (13) An arbitrator’s decision is final and binding on the parties and on any other person affected by it.

• Marginal note:Notification to unions

  (14) All notifications to unionized members under this section must also be made to the executive of their union.

• Marginal note:Union represents members

  (15) Unless otherwise provided by the relevant collective agreement, the executive of a union shall represent its members, other than former members of the plan, for the purposes of this section.