Proclamation giving notice of the Convention on Social Security between Canada and the Republic of Peru and the Administrative Agreement between the Government of Canada and the Government of the Republic of Peru for the Implementation of the Convention on Social Security between Canada and the Republic of Peru Come into Force on March 1, 2017 (SI/2017-15)

Convention on Social Security Between Canada and the Republic of Peru

CANADA AND THE REPUBLIC OF PERU,

hereinafter referred to as the “Parties”,

RESOLVED to co-operate in the field of social security,

HAVE DECIDED to conclude a convention for this purpose, and

HAVE AGREED as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

• 1 For the purposes of this Convention:

  benefit

  benefit means, any cash benefit that is provided for in the legislation of a Party and includes any supplement or increase applicable to that cash benefit;

  competent authority

  competent authority means,

  for Canada, the Minister or Ministers responsible for the application of the legislation of Canada specified in Article 2; and

  for the Republic of Peru (“Peru”), the Ministry of Labour and Employment Promotion and the Ministry of Economy and Finance;

  competent institution

  competent institution means:

  for Canada, the competent authority; and

  for Peru, the institution or agency responsible for the application of the legislation referred to in Article 2;

  creditable period

  creditable period means:

  for Canada, a period of contribution used to acquire the right to a benefit under the Canada Pension Plan; a period during which a disability pension is paid under that Plan; and a period of residence used to acquire the right to a benefit under the Old Age Security Act; and

  for Peru, a period of contribution used to acquire the right to a benefit under the legislation of Peru and includes any period deemed as equivalent to a period of contribution;

  legislation

  legislation means the laws and regulations and provisions specified in Article 2;

  liaison agency”

  liaison agency” means the agency that is responsible for co-ordinating the Convention, exchanging information between the institutions of the Parties, and informing persons concerned of the rights and obligations stemming from this Convention.

• 2 A term that is not defined in this Article shall have the meaning assigned to it in the applicable legislation.

ARTICLE 2Legislative Scope

• 1 This Convention shall apply to the following legislation:

  • (a) with respect to Canada:

    • (i) the Old Age Security Act and the Regulations made thereunder;

    • (ii) the Canada Pension Plan and the Regulations made thereunder;

  • (b) with respect to Peru:

    legislation concerning old age, disability and survivor pensions under the National Pension System (SNP) and the Private Pension Fund System (SPP).

• 2 This Convention shall also apply to future laws, regulations and provisions that amend, supplement, consolidate, or supersede the legislation specified in paragraph 1.

• 3 This Convention shall also apply to future laws and regulations and provisions that extend the legislation of a Party to new categories of beneficiaries or to new benefits, unless the Party implementing the changes advises the other Party of its objection not later than three months following the entry into force of those laws and regulations.

ARTICLE 3Personal Scope

• 1 The Parties shall apply this Convention to any person who is or who has been subject to the legislation of Canada or Peru, or both, and to any person who derives a right from that person under the legislation of either Party.

• 2 This Convention shall not affect benefits obtained by any person in accordance with other treaties that are concluded between one Party and a third State.

ARTICLE 4Equality of Treatment

All persons described in Article 3 shall be treated equally in regard to rights and obligations within the legislation of a Party.

ARTICLE 5Export of Benefits

• 1 Unless otherwise provided in this Convention, a benefit payable under the legislation of a Party to any person described in Article 3, including a benefit paid by virtue of this Convention, shall not be reduced, modified, suspended, cancelled, or withheld by reason only of the fact that the person resides in or is present in the territory of the other Party or in the territory of a third State.

• 2 Canada shall pay an allowance and a guaranteed income supplement to a person who is outside Canada only to the extent permitted by the Old Age Security Act.

PART IIProvisions Concerning the Applicable Legislation

ARTICLE 6General Rules for Employed and Self-Employed Persons

Subject to Articles 7 to 10:

• (a) An employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party.

• (b) A self-employed person who resides in the territory of a Party and who works for his or her own account in the territory of the other Party or in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the first Party.

ARTICLE 7Special Provisions for Detached Workers

An employed person who is subject to the legislation of a Party and who is sent by their employer to work in the territory of the other Party shall, in respect of that work, be subject only to the legislation of the first Party as though that work was performed in its territory. The maximum period of a detachment is 36 months, unless the competent authorities of both Parties consent to an extension.

ARTICLE 8Government Employment

• 1 Notwithstanding any provision of this Convention, the provisions regarding social security of the Vienna Convention on Diplomatic Relations of 18 April 1961, and the Vienna Convention on Consular Relations of 24 April 1963, continue to apply.

• 2 A person employed by the government of a Party, who is not covered by the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations, and who is sent to work in the territory of the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.

ARTICLE 9Exceptions

The Parties may, by mutual consent, modify the application of Articles 6 to 8 in the interest of any person or categories of persons.

ARTICLE 10Coverage and Residence under the Legislation of Canada

• 1 For the purposes of calculating a benefit under the Old Age Security Act:

  • (a) If a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of presence or residence in Peru, that period shall be considered as a period of residence in Canada for that person; it shall also be considered to be a period of residence in Canada for that person’s spouse or common-law partner and dependants who reside with that person and who are not subject to the legislation of Peru by reason of employment or self-employment;

  • (b) If a person is subject to the legislation of Peru during any period of detachment in Canada, that period for that person, and for that person’s spouse or common-law partner and dependants who reside with him or her, shall be determined according to the provisions of Canadian legislation.

• 2 In the application of paragraph 1:

  • (a) A person shall be considered to be subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during a period of presence or residence in Peru only if that person makes contributions pursuant to the plan concerned during that period by reason of employment or self-employment;

  • (b) A person shall be considered to be subject to the legislation of Peru during a period of presence or residence in Canada only if that person makes contributions pursuant to that legislation during that period by reason of employment or self-employment.

PART IIIProvisions Concerning Benefits

CHAPTER 1Totalizing

ARTICLE 11Periods under the Legislation of Canada and Peru

• 1 If a person is not eligible for a benefit due to insufficient creditable periods under the legislation of a Party, that person’s eligibility shall be determined by totalizing these periods and those specified in paragraphs 2 through 4, provided that the periods do not overlap.

• 2

  • (a) For the purposes of determining eligibility for a benefit under the Old Age Security Act, a creditable period under the legislation of Peru shall be considered as a period of residence in Canada;

  • (b) For the purposes of determining eligibility for a benefit under the Canada Pension Plan, three months in a calendar year which are creditable under the legislation of Peru shall be considered as a calendar year that is creditable under the Canada Pension Plan.

• 3 For the purposes of determining eligibility for an old age benefit under the legislation of Peru:

  • (a) A calendar year that is a creditable period under the Canada Pension Plan shall be considered as 12 months that are creditable under the legislation of Peru;

  • (b) A month that is a creditable period under the Old Age Security Act of Canada and that does not overlap with a creditable period under the Canada Pension Plan shall be considered as a month that is creditable under the legislation of Peru.

• 4 For the purposes of determining eligibility for a disability benefit, survivor’s benefit, or funeral costs under the legislation of Peru, a calendar year that is a creditable period under the Canada Pension Plan shall be considered as 12 months that are creditable under the legislation of Peru.

• 5 All creditable periods under the legislation of Peru, including those creditable periods completed prior to the date on which the contributor reaches the age of 18, shall be taken into account to determine an applicant’s eligibility to a benefit under the legislation of Canada. However, a benefit shall not be paid unless the deceased or disabled person’s contributory period is at least equivalent to the minimum qualifying period required under the Canada Pension Plan to establish eligibility to that benefit for that person.

ARTICLE 12Periods under the Regime of a Third State

If a person is not eligible for a benefit on the basis of the creditable periods under the legislation of the Parties, totalized as provided in Article 11, the eligibility of that person for that benefit shall be determined by totalizing these periods and periods completed under the regime of a third State with which both Parties are bound by social security instruments that provide for the totalizing of periods.

ARTICLE 13Minimum Period to be Totalized

If the total duration of the creditable periods accumulated under the legislation of a Party is less than one year and if, taking into account only those periods, the right to a benefit does not exist under the legislation of that Party, that Party shall not be required to pay a benefit in respect of those periods. The other Party shall, however, take these creditable periods into consideration to determine whether a person is eligible for the benefit under the legislation of that other Party through the application of Chapter 1.

CHAPTER 2Benefits under the Legislation of Canada

ARTICLE 14Benefits under the Old Age Security Act

• 1 If a person is eligible for a pension or allowance under the Old Age Security Act based solely on the totalizing provisions of Chapter 1, Canada shall calculate the amount of the pension or allowance payable to that person in accordance with the provisions of that Act governing the payment of a partial pension or allowance, based solely on the periods of residence in Canada that may be considered under that Act.

• 2 Paragraph 1 shall also apply to a person outside Canada who would be eligible for a full pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for the payment of a pension outside Canada.

• 3 Canada shall pay an Old Age Security pension to a person who is outside Canada only if that person’s periods of residence, when totalized in accordance with Chapter 1, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for the payment of a pension outside Canada.

ARTICLE 15Benefits under the Canada Pension Plan

If a person is eligible for a benefit based solely on the totalizing provisions of Chapter 1, Canada shall calculate the amount of benefit payable to that person in the following manner:

• (a) The amount of the earnings-related portion of the benefit shall be determined in accordance with the provisions of the Canada Pension Plan, based solely on the pensionable earnings under that Plan;

• (b) The amount of the flat-rate portion of the benefit shall be pro-rated by multiplying:

  the amount of the flat-rate portion of the benefit determined in accordance with the provisions of the Canada Pension Plan

  by

  the fraction representing the ratio of the periods of contribution to the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish eligibility for that benefit. That fraction shall not exceed the value of one.

CHAPTER 3Benefits under the Legislation of Peru

ARTICLE 16Calculating the Amount of Benefit Payable

• 1 If the conditions for eligibility for a benefit are met under the legislation of Peru without the creditable periods accumulated under the legislation of Canada, Peru shall determine the amount of that benefit based solely on the creditable periods accumulated under its legislation.

• 2 If eligibility for a benefit under the legislation of Peru can be established only through the application of the totalizing provisions of Chapter 1, Peru shall:

  • (a) calculate the theoretical amount of the benefit which would be paid if the totalized creditable periods had been accumulated under the legislation of Peru alone; and

  • (b) on the basis of the theoretical amount of the benefit calculated in accordance with subparagraph (a), determine the amount of benefit payable by applying the ratio of the length of the creditable periods accumulated under the legislation of Peru to the totalized creditable periods.

PART IVAdministrative and Miscellaneous Provisions

ARTICLE 17Administrative Agreements

• 1 The Parties shall conclude Administrative Agreements that establish the measures necessary for the application of this Convention.

• 2 The Parties shall designate their competent institutions and liaison agencies in the Administrative Agreements.

ARTICLE 18Exchange of Information and Mutual Assistance

• 1 The Parties shall:

  • (a) communicate to each other, to the extent permitted by the laws of each Party, any information necessary for the application of this Convention;

  • (b) provide assistance to one another for the purpose of determining eligibility for, and the amount of, any benefit under this Convention, or under the legislation, as if the matter involved the application of their own legislation;

  • (c) communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Convention or about changes in their respective legislation, if these changes affect the application of this Convention.

• 2 The Parties shall provide the assistance referred to in paragraph 1(b) free of charge, unless otherwise specified in an Administrative Agreement concluded pursuant to Article 17 for the reimbursement of certain types of expenses.

• 3 Unless disclosure is required under the laws of a Party, any information about a person which is transmitted in accordance with this Convention from one Party to the other Party is confidential and shall be used only for purposes of implementing this Convention and the legislation to which this Convention applies. Information about a person obtained by the receiving Party shall not be disclosed subsequently to any other person, body or country unless the sending Party is notified and considers it advisable and the information is disclosed only for the same purpose for which it was originally disclosed.

ARTICLE 19Exemption or Reduction of Dues, Fees or Charges

• 1 If one Party’s legislation provides that a person shall be exempt from paying all or part of an administrative fee for issuing a certificate or document required to apply its legislation, the same exemption shall apply to any fee for a certificate or document required to apply the legislation of the other Party. This exemption shall not apply if a medical report is required by the competent institution of a Party solely in support of a claim for a benefit under the legislation of that Party.

• 2 Documents of an official nature required for the application of this Convention shall be exempt from any authentication by diplomatic or consular authorities.

ARTICLE 20Language of Communication

The Parties may communicate directly with one another in English, French, or Spanish.

ARTICLE 21Submitting an Application, a Notice or an Appeal

• 1 The Parties shall treat applications, notices, and appeals concerning eligibility for, or the amount of, a benefit under the legislation of a Party which should, for the purposes of that legislation, have been submitted within a prescribed period to a competent authority or liaison agency of that Party, but which are submitted within the same period to a competent authority or liaison agency of the other Party, as if they had been submitted to the competent authority or liaison agency of the first Party. The date of submission of applications, notices and appeals to the competent authority or liaison agency of the other Party shall be deemed to be the date of their submission to the competent authority or liaison agency of the first Party.

• 2 The date that an application for a benefit is submitted under the legislation of a Party shall be deemed to be the date of submission of an application for the corresponding benefit under the legislation of the other Party, provided that the applicant at the time of application provides information indicating that creditable periods have been completed under the legislation of the other Party. The preceding sentence shall not apply to an application submitted before the date of entry into force of this Convention or if the applicant requests that the payment of the benefit under the legislation of the other Party be delayed.

• 3 The Party to which an application, a notice or an appeal has been submitted shall transmit it without delay to the other Party.

ARTICLE 22Payment of Benefits

A Party shall pay benefits under this Convention in a freely convertible currency directly to a beneficiary, or representative authorized under the laws of that Party, who resides outside its territory without any deduction for its administrative expenses.

ARTICLE 23Resolution of Disputes

• 1 The Parties, through their liaison agencies or competent authorities, shall resolve all disputes of an administrative nature that arise in interpreting or applying this Convention in accordance with the spirit and fundamental principles of this Convention.

• 2 The Parties shall promptly settle any dispute that is not resolved in accordance with paragraph 1.

PART VSpecial Provision

ARTICLE 24Understandings with a Province of Canada

The relevant authority of Peru and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada provided that those understandings are not inconsistent with the provisions of this Convention.

PART VITransitional and Final Provisions

ARTICLE 25Transitional Provisions

• 1 The Parties shall take into account any creditable period completed before the date of entry into force of this Convention for the purposes of determining the right to a benefit and the amount of that benefit under this Convention.

• 2 This Convention does not confer the right, under any circumstances, to receive payment of a benefit for a period that precedes the date of entry into force of this Convention.

• 3 The Parties shall pay a benefit, other than a lump sum death benefit, in respect of events that precede the date of entry into force of this Convention.

• 4 For the purposes of Article 7, if a person’s detachment commences prior to the date of entry into force of this Convention, the period of that detachment shall be considered to begin on the date of entry into force of this Convention.

• 5 Subject to paragraphs 1 and 2, if a person submitted an application for a benefit under the legislation of a Party and that application was denied prior to the entry into force of this Convention, that person may submit a new application for that benefit and the relevant Party shall determine the person’s eligibility for that benefit according to the terms and conditions of this Convention and the legislation to which this Convention applies.

ARTICLE 26Duration and Denunciation

• 1 This Convention shall remain in force indefinitely.

• 2 A Party may terminate this Convention at any time by providing the other Party with 12 months’ notice in writing through diplomatic channels.

• 3 If this Convention is terminated, any benefit obtained by a person or any concurrent period of detachment shall be maintained in accordance with the provisions of this Convention. This Convention shall continue to have effect in relation to all persons who, prior to its termination, applied for rights, and would have acquired those rights by virtue of this Convention if it had not been terminated.

ARTICLE 27Entry into Force

• 1 Each Party shall notify the other by diplomatic note that it has completed the internal legal procedures necessary for the entry into force of this Convention. This Convention enters into force on the first day of the fourth month following the month in which the last note is received.

• 2 The Parties may, by mutual agreement, make amendments to this Convention in accordance with the entry into force provisions of paragraph 1.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention.

DONE in duplicate at Ottawa, this 10th day of April 2014, in the English, French and Spanish languages, each text being equally authentic.

Administrative Agreement Between the Government of Canada and the Government of the Republic of Peru for the Implementation of the Convention on Social Security Between Canada and the Republic of Peru

PURSUANT to Article 17 of the Convention on Social Security between Canada and the Republic of Peru, done at Ottawa on 10 April 2014, hereinafter referred to as the “Convention”,

The Parties have agreed as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

In this Administrative Agreement:

• (a) The term Convention means the Convention on Social Security between Canada and the Republic of Peru, done at Ottawa on 10 April 2014.

• (b) The term Administrative Agreement means the Administrative Agreement between the Government of Canada and the Government of the Republic of Peru for the Implementation of the Convention on Social Security between Canada and the Republic of Peru.

• (c) Any other term shall have the meaning assigned to it in the Convention.

ARTICLE 2Liaison Agencies and Competent Institutions

• 1 The Parties designate the following organizations as their liaison agencies:

  • (a) for Canada:

    • (i) the International Operations Division, Service Canada, Department of Human Resources and Skills Development, in regard to all provisions except Articles 6 to 9 of the Convention and Article 3 of this Administrative Agreement; and

    • (ii) the Legislative Policy Directorate, Canada Revenue Agency for the application of Articles 6 to 9 of the Convention and Article 3 of this Administrative Agreement.

  • (b) for the Republic of Peru (“Peru”):

    • (i) the Oficina de Normalización Previsional (ONP) for all provisions of the Convention regarding the rights of insured persons of the National Pension System (SNP), except Articles 6 to 9 of the Convention and Article 3 of this Administrative Agreement;

    • (ii) the Superintendencia de Banca, Seguros y Administradoras Privadas de Fondos de Pensiones (SBS), for all provisions of the Convention regarding the supervision of the rights of members of the Private Pension System (SPP), except Articles 6 to 9 of the Convention and Article 3 of this Administrative Agreement; and

    • (iii) the Ministry of Labour and Employment Promotion for the provisions relating to Articles 6 to 9 of the Convention and Article 3 of this Administrative Agreement.

• 2 Peru designates the following organizations as its competent institutions:

  • (a) for Article 6 to 9 of the Convention, the Ministry of Labour and the Promotion of Employment;

  • (b) for retirement, disability and survival pensions and, if applicable, burial expenses:

    • (i) the Private Pension Fund Administrators (AFP) for members of the Private Pension System; and

    • (ii) the Oficina de Normalización Previsional (ONP) for persons insured under the National Pension System.

  • (c) for medical evaluations, the determination of disability and eligibility for a pension, as appropriate and in accordance with its legislation:

    • (i) the Medical Committee of the Private Administrators of Pension Funds (COMAFP), and the Medical Commissions of the Superintendency (COMEC) for members of the Private Pension System;

    • (ii) the Medical Commissions of ESSALUD (Health Social Security), Ministry of Health (MINSA), and Private Health Institutions (EPS) are the authorities for the state of incapacity or disability in the National Pension System.

PART IIApplicable Legislation

ARTICLE 3Issuing a Certificate of Detachment

• 1 In the cases set out in Articles 6 to 9 of the Convention, the Party whose legislation applies shall, on request, issue a certificate of fixed duration certifying that, in respect of the work in question, the employed person and that person’s employer or the self-employed person are subject to that legislation. That Party shall send a copy of the certificate to the employed person, that person’s employer, or the self-employed person, and the liaison agency or competent institution of the other Party.

• 2 The consent referred to in Article 7 of the Convention should be requested before the end of the current term of the detachment. If the request for the extension is received after the certificate of detachment expires, the Party that receives the request shall examine the reasons for the delay and, if it determines that the delay is justifiable, shall send the request to the liaison agency or the competent institution of the other Party to obtain consent.

PART IIIBenefits

ARTICLE 4Processing an Application

• 1 A Party that receives an application for a benefit under the legislation of the other Party shall promptly send the application to the liaison agency or competent institution of the other Party, and indicate the date of receipt of the application.

• 2 Along with the application, a Party shall transmit any documentation available to it that may be necessary for the liaison agency or competent institution of the other Party to establish the applicant’s eligibility for a benefit. If the legislation of a Party requires that the documentation be certified, and if it cannot be exempted under Article 19 of the Convention, the certification by the respective liaison agency or competent institution of the other Party alone shall be accepted.

• 3 A Party shall certify the personal information contained in the application, and shall confirm that the information is corroborated by documentary evidence. Once a Party transmits the certified forms to the liaison agency or competent institution of the other Party, it shall be exempt from sending the documentary evidence. The Parties shall mutually decide on the type of information to which this exemption applies.

• 4 A Party shall, to the extent permitted by law, provide free of charge, to the liaison agency or competent institution of the other Party, available medical examination reports, information and documentation concerning the disability of an applicant or beneficiary.

• 5 In addition to the application and documentation, a Party shall send to the liaison agency or competent institution of the other Party a liaison form which shall indicate, in particular, the creditable periods under the legislation which it applies.

• 6 A Party shall determine the applicant’s eligibility and shall notify the liaison agency or competent institution of the other Party of its decision to grant or deny the benefit and the reason for its denial.

PART IVMiscellaneous Provisions

ARTICLE 5Exchange of Statistics

The Parties shall exchange statistics on an annual basis regarding the payments that each has made under the Convention. These statistics shall include data on the number of beneficiaries and the total amount of benefits paid, by type of benefit.

ARTICLE 6Forms and Detailed Procedures

• 1 The Parties shall decide on the forms and detailed procedures necessary to implement the Convention and this Administrative Agreement.

• 2 The Parties shall use the mutually accepted forms to communicate with each other.

ARTICLE 7Entry into Force

This Administrative Agreement shall enter into force on the date of receipt of the second notification by which the Parties notify each other by diplomatic note that they have completed the internal legal procedures necessary for the entry into force of this Administrative Agreement. This Administrative Agreement shall remain in force for the same period as the Convention.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Administrative Agreement.

DONE in duplicate at Ottawa, this 10th day of April 2014, in the English, French and Spanish languages, each version being equally authentic.