Bill C-25

1st Session, 41st Parliament,

60 Elizabeth II, 2011

house of commons of canada

BILL C-25

An Act relating to pooled registered pension plans and making related amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Pooled Registered Pension Plans Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“administrator” means the holder of a licence issued under section 11 or an entity designated by the Superintendent under subsection 21(1).

“common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year.

“common-law partnership” means the relationship between two persons who are common-law partners of each other.

“designated province” means a province designated in the regulations.

“electronic document” means any form of representation of information or of concepts fixed in any medium by electronic, optical or other similar means that can be read or perceived by a person or by any means.

“employee” means an individual who holds a position that entitles that individual to a fixed or ascertainable stipend or remuneration and includes an individual who holds the position of an officer or director of a corporation or other organization or of an agent or mandatary acting for a principal or mandator.

“employer”, in relation to an employee, means the person or organization that employs the employee and includes their assigns or successors.

“employment” means the performance by an employee of work for an employer under an express or implied contract of service or apprenticeship, and includes the tenure of an office.

“included employment” means employment — other than employment by Her Majesty in right of Canada or any employment that is excluded by the regulations — on or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada.

“member” means a person who holds an account with a pooled registered pension plan.

“Minister” means the Minister of Finance.

“multilateral agreement” means an agreement entered into under subsection 6(1).

“pooled registered pension plan” means a plan registered under section 12.

“prescribed” means prescribed by regulation.

“spouse”, in relation to an individual, includes a person who is party to a void marriage or, in Quebec, null marriage with the individual.

“Superintendent” means the Superintendent of Financial Institutions appointed under section 5 of the Office of the Superintendent of Financial Institutions Act.

“survivor”, in relation to a deceased member, means

(a) if there is no person described in paragraph (b), the member’s spouse at the time of the member’s death; or

(b) the common-law partner of the member immediately before the member’s death.

“winding-up”, in relation to a pooled registered pension plan, means the distribution of the assets of a plan that has been terminated.

“Year’s Maximum Pensionable Earnings” has the same meaning as in subsection 2(1) of the Canada Pension Plan.

(2) Except in section 53, a reference to a “spouse or common-law partner” in respect of a member means the common-law partner of the member in the case where the member has both a spouse from whom they are separated and a common-law partner with whom they are cohabiting.

PURPOSE OF ACT

3. The purpose of this Act is to provide a legal framework for the establishment and administration of a type of pension plan that is accessible to employees and self-employed persons and that pools the funds in members’ accounts to achieve lower costs in relation to investment management and plan administration.

APPLICATION

4. This Act does not apply in respect of a member of a pooled registered pension plan who

(a) is not employed in included employment, other than a member who is a self-employed person in Yukon, the Northwest Territories or Nunavut; or

(b) is employed in included employment but whose employer does not participate in the plan, other than a member who is employed in included employment in Yukon, the Northwest Territories or Nunavut.

AGREEMENTS

5. The Minister may, with the approval of the Governor in Council, enter into a bilateral agreement with a designated province to

(a) authorize the prescribed supervisory authority of that province to exercise any of the Superintendent’s powers under this Act; and

(b) authorize the Superintendent to exercise any powers of that prescribed supervisory authority.

6. (1) The Minister may, with the approval of the Governor in Council, enter into an agreement with two or more designated prov-inces respecting any matter relating to pooled registered pension plans that are subject to the legislation of at least one designated province that is a party to the agreement.

(2) The multilateral agreement may, among other things,

(a) limit the application of the legislation of a designated province that is a party to the agreement to a pooled registered pension plan and adapt that legislation to that plan;

(b) limit the application of this Act to a pooled registered pension plan and adapt the Act to that plan;

(c) exempt a pooled registered pension plan from the application of this Act or the legislation of a designated province that is a party to the agreement;

(d) provide for the administration and enforcement of this Act and the legislation of a designated province that is a party to the agreement;

(e) authorize a prescribed supervisory authority of a designated province that is a party to the agreement or the association referred to in section 9 to exercise any of the Superintendent’s powers under this Act;

(f) authorize the Superintendent to exercise any powers of a prescribed supervisory authority of a designated province that is a party to the agreement or the association referred to in section 9;

(g) establish requirements — in addition to any other requirements under this Act and the legislation of a designated province that is a party to the agreement — with respect to a pooled registered pension plan, an administrator or an employer; and

(h) confer powers on the Superintendent.

(3) The Minister must cause to be tabled in each House of Parliament every multilateral agreement.

(4) The Minister must cause to be published in the Canada Gazette

(a) every multilateral agreement and a notice of the date on which the agreement comes into effect with respect to pooled registered pension plans;

(b) every amendment to a multilateral agreement and a notice of the date on which the amendment comes into effect with respect to pooled registered pension plans; and

(c) a notice of the effective date of the Government of Canada’s withdrawal from the multilateral agreement or of the effective date of termination of that agreement, whichever comes first.

(5) In addition to the publishing requirements under subsection (4), the Minister must ensure that every multilateral agreement and every amendment to it is accessible to the public on the Internet or by any other means that the Minister considers appropriate.

7. (1) The provisions of a multilateral agreement, other than those exempted from the application of this subsection by regulation, have the force of law during the period that the agreement is in effect with respect to pooled registered pension plans and are enforceable during that period as if those provisions formed part of this Act.

(2) The provisions of a multilateral agreement that have the force of law prevail over any provision of this Act and the regulations to the extent of any inconsistency or conflict between them.

8. (1) A decision of a prescribed supervisory authority of a designated province that is made under the authority of a multilateral agreement and that relates to the application of this Act is deemed to be a decision of a federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act, and is subject to judicial review under that Act.

(2) A decision of the Superintendent that is made under the authority of a multilateral agreement and that relates to the application of the legislation of a designated province is deemed to be a decision of the prescribed supervisory authority of that province and is not subject to judicial review under the Federal Courts Act.

9. The Minister may, with the approval of the Governor in Council, enter into an agreement with any designated province respecting the establishment and operation in Canada of an association of supervisory authorities.

POWERS OF SUPERINTENDENT

10. (1) The Superintendent, under the direction of the Minister, is responsible for the control and supervision of the administration of this Act.

(2) The Superintendent may

(a) conduct studies, surveys and research programs and compile statistical and other information relating to pooled registered pension plans and their operation;

(b) disclose information collected under paragraph (a) or any of subsection 12(2) and sections 13 and 58 to any government agency or regulatory body; and

(c) collect information from a prescribed supervisory authority of a designated prov-ince and disclose information to that authority for the purposes of implementing a multilateral agreement.

(3) Any approval, authorization, consent or permission of the Superintendent given under this Act may be subject to terms and conditions.

11. (1) The Superintendent may issue a licence authorizing a corporation to be an administrator if the prescribed conditions are satisfied.

(2) A licence issued under this section may be subject to terms and conditions.

REGISTRATION

12. (1) A plan that is to be administered by an administrator to provide members of the plan with a means of retirement savings may be registered by the Superintendent as a pooled registered pension plan, except

(a) a pension plan as defined in subsection 2(1) of the Pension Benefits Standards Act, 1985;

(b) an employees’ profit sharing plan or a deferred profit sharing plan as defined in sections 144 and 147, respectively, of the Income Tax Act;

(c) a registered retirement savings plan or a retirement compensation arrangement as defined in subsection 248(1) of the Income Tax Act or an arrangement to provide a retiring allowance as defined in that subsection; or

(d) any other prescribed plan or prescribed arrangement.

(2) The administrator of a plan that wishes to have that plan registered must file with the Superintendent, in the form and manner that the Superintendent may direct,

(a) a copy of the plan;

(b) a copy of every document that creates or supports the plan; and

(c) a declaration, signed by the administrator, that the plan complies with the provisions of this Act and the regulations.

(3) Subject to subsection (4), the Superintendent must register a plan and issue a certificate of registration in respect of the plan if the administrator of the plan has filed the documents required under subsection (2).

(4) The Superintendent may refuse to register a plan if the plan does not comply with the provisions of this Act and the regulations.

(5) If the Superintendent refuses to register a plan, he or she must notify the administrator of the particulars of the non-compliance.

(6) An administrator must not accept any members before the plan is registered.

13. The administrator of a plan must file with the Superintendent, within 60 days after an amendment is made to any document referred to in subsection 12(2), in the form and manner that the Superintendent may direct, a copy of the amendment and a declaration, signed by the administrator, that the plan as amended complies with the provisions of this Act and the regulations.

ADMINISTRATION OF POOLED REGISTERED PENSION PLANS

Administrator

14. The administrator of a pooled registered pension plan must, before entering into a contract with any person with respect to the plan, provide proof to the person that it has a valid licence and that the plan is registered under this Act.

15. The administrator of a pooled registered pension plan must ensure that the plan complies with the provisions of this Act and the regulations.

16. (1) The administrator of a pooled registered pension plan must, in accordance with the provisions of this Act and the regulations, administer the plan and its assets and file the required documents with the Superintendent.

(2) The administrator must inform the Superintendent, in the form and manner that the Superintendent may direct, of any change to the administrator’s name or the address of its Canadian head office within 30 days after the change.

17. An administrator of a pooled registered pension plan must keep records that are sufficient to allow a member’s share of the assets of the plan to be determined.

18. The administrator must notify the Superintendent if an employer fails to comply with the provisions of the contract between the employer and the administrator respecting the amounts and frequency of remittances to the administrator.

19. If an employer terminates their participation in a pooled registered pension plan, the administrator of the plan must, within the prescribed period, notify in writing the Superintendent and the members of the plan who are employees of the employer of the termination and the effective date of the termination.

20. (1) An administrator must hold a meeting, within the period specified by the Superintendent, to consider any matters set out in a written notice from the Superintendent requiring the administrator to hold a meeting.

(2) The Superintendent may

(a) participate in the meeting;

(b) require the administrator to invite members to attend the meeting; and

(c) require any other interested persons to attend the meeting.

21. (1) If the administrator is insolvent or unable to act or the Superintendent is of the opinion that it is in the best interests of the members, the Superintendent may order the administrator to transfer every pooled registered pension plan that it administers and all of their assets to any entity that is designated by the Superintendent.

(2) The designated entity has, with respect to every pooled registered pension plan that is transferred to it, all the contractual rights and obligations of the administrator.

22. (1) The administrator must administer the pooled registered pension plan and its assets as a trustee for the members.

(2) In the administration of the pooled registered pension plan and its assets, the administrator must exercise the degree of care that a reasonably prudent person would exercise in dealing with the property of another person and the diligence and skill that it possesses, or ought to possess, taking into account the administrator’s business.

(3) The funds in members’ accounts may be pooled for the purposes of investing the assets of a pooled registered pension plan.

(4) The administrator must invest the funds in members’ accounts and must do so in a manner that a reasonable and prudent person would apply in respect of a portfolio of investments appropriate for retirement savings.

(5) The administrator is entitled to engage the services of any investment manager it chooses for the purposes of investing the funds in members’ accounts.

23. (1) A pooled registered pension plan may permit a member to make investment choices from among the investment options offered by the administrator.

(2) If a pooled registered pension plan permits a 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 appropriate for retirement savings.

(3) If a member does not make an investment choice referred to in subsection (1) within the prescribed period, the investment option chosen by the administrator as the default option will apply to the account of the member. The administrator will make all the decisions with respect to investing the funds in accounts to which the default option applies.

(4) With respect to an account in respect of which an investment choice is made by a member, if the administrator offers investment options in accordance with subsection (2) and the regulations, that administrator is deemed to comply with subsection 22(4).

24. Subject to the regulations, an administrator must not give, offer or agree to give or offer to an employer an inducement to enter into a contract with the administrator in respect of a pooled registered pension plan.

25. The administrator must not change an investment choice made by a member except on the request of the member or in the circumstances specified in the regulations.

26. An administrator must provide the pooled registered pension plan to its members at a low cost.

Employer

27. An employer must not offer a plan whose purpose is retirement savings to those of its employees who are employed in included employment, unless it is a plan registered under subsection 12(1) or a plan or arrangement described in any of paragraphs (a) to (d) of that subsection.

28. An employer that enters into a contract with an administrator to provide a pooled registered pension plan to a class of employees must provide it to all the members of that class.

29. The contract between the employer and the administrator must provide for the amounts in respect of employee contributions and employer contributions, if any, that must be remitted to the administrator and the frequency of those remittances, and for the consequences if the employer fails to comply with the provisions of the contract respecting those remittances.

30. An employer is not liable for the acts and omissions of the administrator.

31. (1) An employer must ensure that it keeps separate and apart from its own money all of the following amounts that have not been remitted to the administrator:

(a) amounts deducted by the employer from employees’ remuneration;

(b) amounts of employer contributions; and

(c) any other amounts required to be remitted to the administrator.

The employer is deemed to hold those amounts in trust for members of the plan.

(2) In the event of the winding-up, assignment or bankruptcy of an employer, an amount equal to the amount that by subsection (1) is deemed to be held in trust is 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.

32. An employer must provide the administrator with the information that is required by the administrator to comply with the terms of the plan and to discharge its duties under subsection 16(1).

33. Subject to the regulations, an employer must not demand, accept or offer or agree to accept any inducement from an administrator to enter into a contract with the administrator in respect of a pooled registered pension plan.

DIRECTIONS OF COMPLIANCE

34. (1) If, in the opinion of the Superintendent, an administrator, an employer or any person is, in respect of a pooled registered pension plan, committing or about to commit an act, or pursuing or about to pursue any course of conduct, that is contrary to safe or sound financial or business practices, the Superintend-ent 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 those acts that, in the opinion of the Superintendent, are necessary to remedy the situation.

(2) If, in the opinion of the Superintendent, a pooled registered pension plan or its administration does not comply with the provisions of this Act and the regulations, the administration of the plan does not comply with the plan itself, an employer has failed to comply with the provisions of the contract between the employer and the administrator or an administrator has failed to comply with the terms and conditions of its licence, the Superintendent may direct the administrator, the employer or any person to take any of the measures referred to in paragraphs (1)(a) and (b).

(3) Subject to subsection (4), a direction under subsection (1) or (2) must not be issued unless the Superintendent gives the administrator, employer or other person a reasonable opportunity to make written representations.

(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, the Superintendent may make a direction with respect to the matters referred to in subsection (1) or (2) that has effect for a specified period of not more than 15 days.

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

35. If the Superintendent issues a direction in respect of a pooled registered pension plan under section 34, he or she may also issue a direction to the administrator to refrain from entering into any new contracts with employers or accepting any new members with respect to the plan.

36. If the administrator of a pooled registered pension plan does not comply with a direction under section 34 or 35, the Superintendent may — at least 60 days after the day on which the administrator is notified of the failure to comply with the direction — revoke the registration and cancel the certificate of registration in respect of the plan. In that case, the Superintendent must notify the administrator of the measures taken, including the date of the revocation and cancellation.

OBJECTIONS AND APPEALS

37. (1) An administrator may, within 60 days after the day on which the notification is provided under subsection 12(5) or on which the revocation and cancellation referred to in section 36 occurs, send to the Superintendent a notice of objection setting out the reasons for the objection and all facts relevant to it.

(2) On receipt of the notice, the Superintendent must, without delay, reconsider the refusal or the revocation and cancellation, as the case may be, and vary or confirm the action taken. The Superintendent must, without delay, notify the administrator of the decision.

38. (1) If an administrator has sent a notice of objection, the administrator may appeal to the Federal Court for an order referred to in paragraph (5)(b)

(a) within 90 days after the Superintendent has confirmed the action taken under subsection 37(2); or

(b) not less than 90 days and not more than 180 days after the day on which the notice of objection was sent if the Superintendent has not notified the administrator that the Superintendent has varied or confirmed the action taken under subsection 37(2).

(2) An appeal to the Federal Court must be made by filing in the Registry of the Court, or by sending by registered mail addressed to it at Ottawa, three copies of a notice of appeal in prescribed form.

(3) On receipt of the copies of the notice of appeal, the Registry of the Court must transmit two copies to the Superintendent.

(4) On receipt of a copy of the notice of appeal, the Superintendent must forward to the Registry of the Court copies of all documents relevant to the appeal.

(5) The Federal Court may dispose of an appeal

(a) by dismissing it and ordering the appellant to take any measures necessary to ensure that the pooled registered pension plan complies with the provisions of this Act and the regulations; or

(b) by allowing it and ordering the Superintendent to register the pooled registered pension plan or to reinstate the registration of the plan, as the circumstances require, and issue a certificate of registration.

(6) An order referred to in paragraph (5)(b) may include conditions imposed on the appellant that are conditions precedent to the registration or reinstatement of registration of the pooled registered pension plan.

GENERAL REQUIREMENTS

Membership

39. (1) Every employee in a class of employees who is employed in included employment and is engaged to work on a full-time basis for an employer that provides a pooled registered pension plan to that class is a member of the plan, except for employees who terminate their membership under subsection 41(5) or who object to becoming members of the plan because of their religious beliefs.

(2) In this section, “full-time basis” means, in relation to an employee of a particular class, engaged to work throughout the year all or substantially all of the normally scheduled hours of work established for persons in that class of employees.

40. (1) Every employee in a class of employees who is employed in included employment and is engaged to work on a part-time basis for an employer that provides a pooled registered pension plan to that class is a member of the plan on and after the day on which the employee completes 24 months of continuous employment with the employer, except for employees who terminate their membership under subsection 41(5) or who object to becoming members of the plan because of their religious beliefs.

(2) The Governor in Council may make regulations extending the period of 24 months referred to in subsection (1).

(3) In this section, “continuous” means, in relation to employment, without regard to periods of temporary interruption of the employment.

(4) In this section, “part-time basis” means, in relation to an employee, engaged to work on other than a full-time basis.

41. (1) At least 30 days before entering into a contract with an administrator to provide a pooled registered pension plan to a class of employees, an employer must notify in writing each employee of that class of

(a) its intention to enter into the contract;

(b) any existing business relationships it has with the administrator of the plan; and

(c) the right of any employee to object to being a member of the plan because of their religious beliefs.

(2) As soon as feasible after the employer enters into the contract with the administrator to provide a pooled registered pension plan to a class of employees, either the administrator or the employer must notify in writing each employee of that class of their membership in the plan. The notice must

(a) inform them of a member’s right to terminate their membership in the plan by notifying the employer within 60 days after receiving the notice; and

(b) include the prescribed information.

(3) The contract referred to in subsection (2) must specify whether it is the employer or the administrator who has the duty to provide the notification under that subsection.

(4) As soon as feasible after the employer hires an employee who is part of the class of employees who are members of the pooled registered pension plan, the notice referred to in subsection (2) must be provided to that employee.

(5) An employee may terminate their membership in a pooled registered pension plan by notifying the employer within 60 days after receiving notice under subsection (2).

42. (1) An employee who objects to being a member of a pooled registered pension plan because of their religious beliefs must notify the employer.

(2) An employer that is notified by an employee under subsection (1) must, as soon as feasible, take any measure that is necessary to ensure that the employee does not become a member of the plan or, if the employee is already a member, that the employee’s membership is terminated.

43. (1) An employer that provides a pooled registered pension plan to a class of employees and enters into a contract with an administrator to provide a new pooled registered pension plan to that class must cause the assets of the former plan to be transferred to the new plan and must provide the notification referred to in subsection 41(2) to the employees in that class.

(2) Despite subsection 41(5), the employees who were members of the former pooled registered pension plan are not entitled to terminate their membership in the new pooled registered pension plan and the notice provided to them under subsection 41(2) is not to include the information referred to in paragraph (a) of that subsection.

(3) The employer is responsible for all of the costs in relation to the transfer of assets from one pooled registered pension plan to another.

44. A member of a pooled registered pension plan, other than one who has become a member under section 39 or 40, may terminate their membership in the plan by notifying the administrator.

Contributions

45. (1) The contribution rates in respect of members of a pooled registered pension plan, and any increases to those rates, are set by the administrator. The administrator must inform members of the contribution rates and of any increases.

(2) Subject to the regulations, a member may, after notifying the administrator, set a contribution rate of 0%.

46. The employer may begin to deduct a member’s contributions to the pooled registered pension plan from the member’s remuneration no earlier than 61 days after the day on which the administrator or employer provides the notice referred to in subsection 41(2).

Locking-in

47. (1) Subject to subsection (2) and any other provision of this Act and the regulations, a pooled registered pension plan must provide that

(a) the funds in an account with the plan, or any interest or right in those funds, are not capable of being transferred, charged, attached, anticipated or given as security and that any transaction appearing to do so is void or, in Quebec, null;

(b) an interest or right in the funds in a member’s account is not capable of being surrendered;

(c) a member is not permitted to withdraw the funds in their account; and

(d) an administrator is not permitted to withdraw the funds from a member’s account.

(2) A pooled registered pension plan may provide that

(a) in the case of a disability as defined by the regulations, a member may withdraw the funds in their account; and

(b) if the amount of funds in the member’s account is — subject to any other percentage that may be prescribed — less than 20% of the Year’s Maximum Pensionable Earnings for the year in which the member dies, in which the member provides the notification referred to in section 44 or in which the member is no longer employed by an employer that is participating in the plan, the funds in the account may be withdrawn by the member or survivor, as the case may be.

Variable Payments

48. A pooled registered pension plan may provide that a member who has reached the prescribed age that is fixed for the purposes of this section may elect to receive variable payments from the funds in their account.

49. In the case of the death of a member who had a spouse or common-law partner at the time at which variable payments commenced, the survivor is entitled to receive — subject to the regulations, the Income Tax Act and the Income Tax Regulations — variable payments from the funds in the member’s account.

50. (1) At least once every year, or more frequently if the pooled registered pension plan permits, a member or their survivor who receives variable payments may elect

(a) to transfer the funds in the member’s account to an account for the member or survivor, as the case may be, with a pooled registered pension plan or another pension plan, if that plan permits;

(b) to transfer the funds in the member’s account to a retirement savings plan of the prescribed kind for the member or survivor, as the case may be; or

(c) to use the funds in the member’s account to purchase an immediate or deferred life annuity of the prescribed kind for the member or survivor, as the case may be.

(2) A member or survivor must notify the administrator of their intention to make the election referred to in subsection (1) and the administrator must, without delay, take the necessary action to give effect to the notification.

(3) The survivor may also, if he or she notifies the administrator of their intention to do so within 90 days after the death of the member or, in the case where the Superintendent permits a longer period under paragraph 57(1)(e) for giving the statement referred to in that paragraph, within 60 days after the day on which the administrator gives that statement,

(a) transfer the funds in the member’s account to an account for the survivor with a pooled registered pension plan or another pension plan, if that plan permits;

(b) transfer the funds in the member’s account to a retirement savings plan of the prescribed kind for the survivor; or

(c) use the funds in the member’s account to purchase an immediate or deferred life annuity of the prescribed kind for the survivor.

(4) The administrator must, without delay, take the necessary action to give effect to the notification.

51. Before an administrator may cease to make the variable payments referred to in section 48 and 49, the administrator must offer the member or survivor who receives those variable payments the options set out in subsection 50(1).

Death of Member

52. (1) In the case of the death of a member who had a spouse or common-law partner at the time of death, the survivor is entitled to the funds in the member’s account.

(2) If a member dies without leaving a survivor, the funds in the member’s account are to be paid, subject to the Income Tax Act and the Income Tax Regulations, to the member’s designated beneficiary or, if there is none, to the member’s estate or succession.

(3) If a pooled registered pension plan provides that a member’s survivor may surrender their right or interest in the funds in the member’s account, in writing, to a beneficiary designated by the survivor who is the survivor’s or member’s dependant as defined in subsection 8500(1) of the Income Tax Regulations, the funds in the member’s account are to be paid to that designated beneficiary.

Divorce, Annulment, Separation or Breakdown of Common-law Partnership

53. (1) In this section, “provincial law relating to the distribution of property” means the law of a province relating to the distribution of property, in accordance with a court order or an agreement between them,

(a) of spouses on divorce, annulment or separation; or

(b) of former common-law partners on the breakdown of their common-law partnership.

(2) Subject to subsection (3), the funds in the account of a member with a pooled registered pension plan are, on divorce, annulment, separation or breakdown of common-law partnership, subject to provincial law relating to the distribution of property.

(3) A member of a pooled registered pension plan may transfer all or a portion of the funds in their account to their spouse, former spouse, common-law partner or former common-law partner, effective as of divorce, annulment, separation, or breakdown of the common-law partnership, as the case may be.

(4) The spouse, former spouse, common-law partner or former common-law partner to whom all or a portion of the funds in a member’s account are transferred under subsection (3) must

(a) transfer those funds to an account for him or her with a pooled registered pension plan or another pension plan, if that plan permits;

(b) transfer those funds to a retirement savings plan of the prescribed kind for him or her; or

(c) use those funds to purchase an immediate or deferred life annuity of the prescribed kind for him or her.

(5) On divorce, annulment, separation or breakdown of a common-law partnership, if a court order or an agreement between the parties provides for the distribution of property between a member and their spouse, former spouse or former common-law partner, the administrator must determine and administer the member’s account in the prescribed manner and in accordance with the court order or the agreement on receipt of

(a) a written request from either the member or their spouse, former spouse or former common-law partner that all or part of the funds in the member’s account be distributed or administered in accordance with the court order or the agreement; and

(b) a copy of the court order or the agreement.

However, in the case of a court order, the administrator must not administer the member’s account in accordance with the court order until all appeals from that order have been finally determined or the time for appealing has expired.

(6) On receipt of a request referred to in paragraph (5)(a), the administrator must notify the non-requesting spouse, former spouse or former common-law partner of the request and must provide that person with a copy of the court order or agreement submitted in support of the request, but this requirement does not apply in respect of a request or an agreement received by the administrator in a form or manner that indicates that it was jointly submitted.

Transfer of Funds and Purchase of Life Annuities

54. (1) The following persons may, in accordance with subsection (2), transfer or use funds from their account with a pooled registered pension plan:

(a) a member who is no longer employed by an employer that is participating in the plan;

(b) a member who has provided the notice referred to in section 44;

(c) a member of a plan that has been terminated under section 62; or

(d) the survivor of a member.

(2) If the member or survivor, as the case may be, notifies the administrator within the prescribed time or, in the case where the Superintendent permits a longer period under paragraph 57(1)(d) or (e) for giving the statement referred to in any of those paragraphs, within 60 days after the day on which the administrator gives that statement, the funds in the member’s account may be

(a) transferred to an account for the member or the survivor, as the case may be, with a pooled registered pension plan or another pension plan, if that plan permits;

(b) transferred to a retirement savings plan of the prescribed kind for the member or survivor, as the case may be; or

(c) used to purchase an immediate or deferred life annuity of the prescribed kind for the member or survivor, as the case may be.

(3) The administrator must, without delay, take the necessary action to give effect to the notification.

55. On or after January 1 of the year following the year in which a member reaches the prescribed age that is fixed for the purposes of this section, the administrator may transfer the funds in the member’s account with the pooled registered pension plan to a prescribed account.

Sex Discrimination Prohibited

56. The sex of a member or of their spouse, former spouse, common-law partner or former common-law partner must not be taken into account in determining the amount of any contribution required to be paid by the member under a pooled registered pension plan.

Rights to Information

57. (1) A pooled registered pension plan must provide

(a) that each member and each employer that is participating in the plan will be given, in the prescribed circumstances and in the prescribed time and manner,

(i) a written explanation of the provisions of the plan and of any applicable amendments to the plan, and

(ii) any other information that is prescribed;

(b) that each member of the plan will be given, in the prescribed circumstances and manner, and within 45 days after the end of each year or any longer period specified by the Superintendent, a written statement showing

(i) the value of accumulated contributions made under the plan, expressed in the prescribed manner, by or in respect of the member since the member became a member, and

(ii) any other information that is prescribed;

(c) that each member of the plan, and their spouse or common-law partner may, once in each year, either personally or by an agent or mandatary authorized in writing for that purpose, request, in writing, copies of the documents or information filed with the Superintendent under subsection 12(2), sections 13 and 58, as well as any other prescribed documents, from the Canadian head office of the administrator;

(d) that, if a member has provided notice under section 44, has been provided notice under subsection 62(4) or is no longer employed by an employer that is participating in the plan, the administrator must give to the member a statement, in the prescribed form, of the funds in their account within 30 days after the day on which the notice was provided or the employee’s employment with the employer ceased or any longer period permitted by the Superintendent; and

(e) that, in the case of a member’s death, the administrator must give to the survivor, if there is one, to the member’s designated beneficiary if the administrator has been notified of the designation and there is no survivor, or, in every other case, to the executor or administrator of the member’s estate or to the liquidator of the member’s succession a statement, in the prescribed form, of the funds in the member’s account within 30 days after the day on which the administrator received notice of the death or any longer period permitted by the Superintendent.

(2) The administrator must, without delay, provide, on the payment of any reasonable fee that the administrator may fix, the documents requested under paragraph (1)(c).

Duty to Provide Information

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

(2) The administrator of a pooled registered pension plan must file with the Superintendent prescribed financial statements and any other prescribed information at any intervals or times that the Superintendent directs.

(3) Except as otherwise specified by the Superintendent, the financial statements must be prepared in accordance with generally accepted accounting principles, the primary source of which is the Handbook of the Canadian Institute of Chartered Accountants.

(4) Every document required to be filed under this section must be filed in the form and manner that the Superintendent may direct and, unless otherwise directed by the Superintendent, be filed within three months after the end of the year to which the document relates.

59. The administrator must provide to the members, at the time and in the manner specified by the Superintendent, any information that the Superintendent specifies.

60. The employer and the administrator must provide to the Superintendent, at the time and in the manner specified by the Superintendent, any information that the Superintendent specifies.

TERMINATION AND WINDING-UP

61. Only the Superintendent or the administrator may terminate a pooled registered pension plan.

62. (1) The revocation of registration of a pooled registered pension plan is deemed to constitute the termination of the plan.

(2) The Superintendent may declare a pooled registered pension plan terminated if

(a) a bankruptcy order has been made against the administrator under the Bankruptcy and Insolvency Act;

(b) the administrator is the subject of a winding-up order under the Winding-up and Restructuring Act;

(c) the administrator is the subject of proceedings under the Companies’ Creditors Arrangement Act or Part III of the Bankruptcy and Insolvency Act; or

(d) the administrator has discontinued or is in the process of discontinuing its business operations.

(3) The Superintendent’s declaration must specify that a pooled registered pension plan is terminated as of the date that the Superintendent considers appropriate in the circumstances.

(4) An administrator must, not less than 60 days and not more than 180 days before the date on which it terminates a pooled registered pension plan, provide written notification of this termination to the employers that are participating in the plan and the members of the plan. The notice must specify the date of the termination.

(5) An administrator must, not less than 60 and not more than 180 days before the date on which it terminates or winds up a pooled registered pension plan, provide notification of this termination or winding-up to the Superintendent. The notice must specify the date of the termination or winding up and be in the form and manner directed by the Superintendent.

(6) Subject to subsections (1) and (2), the termination is effective only if the administrator notifies the Superintendent in accordance with subsection (5).

(7) If a pooled registered pension plan is terminated, the employer must remit to the administrator, and the administrator must pay into the members’ accounts, all amounts that are due as of the date of the termination.

(8) On the termination of a pooled registered pension plan, the assets of the plan continue to be subject to this Act.

(9) On the termination of a pooled registered pension plan, the administrator of the plan must file with the Superintendent, in the form and manner that the Superintendent may direct, a termination report prepared by a person having the prescribed qualifications. The report must also set out the amounts referred to in subsection (7) — calculated as of the date of termination — and contain any prescribed information.

(10) Assets of the pooled registered pension plan must not be used or transferred for any purpose until the Superintendent has approved the termination report. However, the administrator of the plan may make variable payments, as they fall due, to any persons entitled to receive them.

(11) If a pooled registered pension plan has been terminated and the Superintendent is of the opinion that no action or insufficient action has been taken to wind up the plan, the Superintendent may direct the administrator to distribute the funds in the members’ accounts and may direct that any expenses incurred in connection with that distribution be paid out of the members’ accounts, and the administrator must comply with that direction without delay.

GENERAL

63. Except to the extent that they are inconsistent with this Act, any provisions of any provincial law respecting the designation of beneficiaries that would be applicable to a pension plan are deemed to apply to members who are employed in included employment as though that employment were not included employment.

64. (1) Any requirement under this Act to provide a person with information, including information in a document, may be satisfied by the provision of an electronic document if

(a) the addressee has consented and has designated an information system for the receipt of the electronic document;

(b) the electronic document is provided to the designated information system; and

(c) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference.

(2) For the purposes of subsection (1), “information system” means a system used to generate, send, receive, store or otherwise process an electronic document.

(3) An addressee may revoke the consent referred to in paragraph (1)(a).

(4) Subsections (1) and (3) do not apply

(a) to any requirement under this Act to provide the Minister or the Superintendent with information;

(b) to any requirement under this Act, imposed on the Minister or the Superintend-ent, to provide a person with information; or

(c) to any requirement under this Act exempted, by regulation, from the application of those subsections.

(5) For greater certainty, the Minister and the Superintendent may use electronic means to communicate information, including information in a document, under this Act.

65. A requirement under this Act for a signature is satisfied in relation to an electronic document if any prescribed requirements are met and if the signature results from the use by a person of a technology or a process that permits the following to be proven:

(a) the signature resulting from the use by the person of the technology or process is unique to them;

(b) the technology or process is used by the person to incorporate, attach or associate their signature to the electronic document; and

(c) the technology or process can be used to identify its user.

66. (1) A direction of the Superintendent may be made an order of the Federal Court and is enforceable in the same manner as such an order.

(2) To make a direction of the Superintend-ent an order of the Federal Court, the Superintendent must file with the registrar of the Federal Court a certified copy of the direction, signed by the Superintendent, at which time the direction becomes an order of the court.

(3) If a direction of the Superintendent that has been made an order of the Federal Court is rescinded or varied by a subsequent direction of the Superintendent, the order of the Federal Court is deemed to have been cancelled and the subsequent direction may be made an order of the court.

(4) The Superintendent may, before or after one of his or her directions is made an order of the Federal Court, enforce the direction by his or her own action.

67. (1) If an administrator, employer or other person has omitted to do anything under this Act that is required to be done by them or on their part or contravenes a provision of this Act or the regulations, the Superintendent may, in addition to any other action that the Superintendent may take, apply to the Federal Court for an order requiring the administrator, employer or other person to cease the contravention or to do anything that is required to be done, and on such an application the Federal Court may make that order and make any other order that it thinks fit.

(2) An appeal from an order made under subsection (1) lies in the same manner as an appeal from any other order of the Federal Court.

68. In addition to any other action that the Superintendent may take in respect of a pooled registered pension plan, the Superintendent may institute against the administrator, employer or any other person any legal proceedings that a member could institute.

69. (1) The Superintendent or any person authorized in writing by the Superintendent may, for a purpose related to verifying compliance with this Act,

(a) examine any book, record or other document, regardless of its physical form or characteristics, relating to a pooled registered pension plan or to any securities, obligations or other investments in which any assets of the pooled registered pension plan are invested; and

(b) require the administrator of a pooled registered pension plan to furnish any information in any form that, in the Superintendent’s opinion, is necessary.

(2) The Superintendent has the same powers as those conferred on commissioners under Part II of the Inquiries Act with respect to the taking of evidence.

(3) If the Superintendent directs an administrator to pay the fees and expenses of persons appointed on a temporary basis from outside the public service for the purposes of an inspection under paragraph (1)(a), including their fees and expenses related to preparing a report to the Superintendent, the administrator must not pay those fees and expenses from the assets of the plan.

70. No action lies against any person for withholding, deducting, paying or crediting any sum of money if they do so under this Act or in the belief that they are doing so under this Act.

71. Any agreement or arrangement that, in contravention of this Act, requires a person to not withhold, deduct, pay or credit an amount is void or, in Quebec, null.

72. Subject to any other provision of this Act and the regulations, any agreement or arrangement to transfer, charge, anticipate or give as security any of the following is void or, in Quebec, null:

(a) any funds in an account with a pooled registered pension plan or a right or interest in those funds; or

(b) any funds withdrawn from a member’s account under section 54 or a right or interest in those funds.

73. (1) Any agreement or arrangement to surrender any of the following is void or, in Quebec, null:

(a) a right or interest in any funds in an account with a pooled registered pension plan; or

(b) a right or interest in any funds withdrawn from a member’s accounts under section 54.

(2) Subsection (1) does not apply to prevent the surrender of an interest or right made under subsection 52(3).

74. The Statutory Instruments Act does not apply to a direction issued by the Superintendent under this Act.

OFFENCES AND PUNISHMENT

75. (1) Every person is guilty of an offence who

(a) contravenes any provision of this Act or the regulations or a direction of the Superintendent given under this Act;

(b) to avoid compliance with a provision of this Act or the regulations,

(i) destroys, alters, mutilates, secretes or otherwise disposes of any record, writing or other document,

(ii) in any record, writing or other document, makes a false or deceptive statement or a false or deceptive entry, or

(iii) omits to furnish any material particular in any statement or in any record, writing or other document;

(c) knowingly prevents or obstructs, or attempts to prevent or obstruct, another person from doing anything that the other person is authorized to do under section 69 or, unless unable to do so, fails to do anything that is required to be done under that section; or

(d) being an employer, fails to remit to the administrator all amounts that the employer is liable to so remit.

(2) A person is not to be found guilty of an offence under paragraph (1)(a) or (d) if the person establishes that he or she exercised due diligence to prevent the commission of the offence.

(3) A person who commits an offence under this Act is

(a) in the case of a natural person, liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 12 months, or to both; and

(b) in the case of a corporation or other body, liable on summary conviction to a fine not exceeding $500,000.

(4) The court may also order the employer that is found guilty of the offence referred to in paragraph (1)(d) to remit to the administrator all amounts owing with interest.

(5) In any prosecution for an offence under this Act, a certificate purporting to be signed by the Superintendent or by any person on the Superintendent’s behalf certifying that a copy of a pooled registered pension plan or of an amendment to that plan was not filed with the Superintendent as required by this Act, or certifying as to the registration of a pooled registered pension plan, is admissible in evidence and, in the absence of any evidence to the contrary, is proof of the matters so certified.

(6) Proceedings in respect of an offence under this Act may be commenced within two years after the day on which the subject matter of the proceedings became known to the Superintendent.

(7) A document that appears to have been issued by the Superintendent, certifying the day on which the subject matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

(8) If a corporation or other body commits an offence under this Act, an officer, a director, an agent or mandatary or a member of the corporation or body who directed, authorized, assented to or acquiesced or participated in the commission of the offence is a party to the offence and liable, on summary conviction, to the punishment provided for the offence, whether or not the corporation or body has been prosecuted or convicted.

(9) An information or complaint under this section may be laid or made by any officer of the Office of the Superintendent of Financial Institutions, any member of the Royal Canadian Mounted Police or any person authorized in writing by the Minister.

REGULATIONS

76. (1) The Governor in Council may make regulations

(a) respecting the terms and conditions for issuing a licence, the method for recovering the costs of licensing, and the number and scope of pooled registered pension plans that may be offered by an administrator;

(b) designating any province in which there is in force legislation similar to this Act;

(c) respecting the implementation of a multilateral agreement;

(d) exempting a multilateral agreement or any provision of that agreement from the application of subsection 7(1);

(e) respecting the management and investment of funds in members’ accounts, including the way in which the funds are to be held;

(f) respecting the process by which investment options are offered by an administrator and choices among those options are made;

(g) respecting investment options offered by an administrator;

(h) specifying the circumstances in which an administrator may change an investment choice made by a member;

(i) specifying the circumstances in which inducements may be given or offered by an administrator or demanded or accepted by an employer, and the types of inducements that may be given, offered, demanded or accepted;

(j) establishing criteria for determining whether a pooled registered pension plan is low-cost for the purposes of section 26;

(k) respecting the manner and frequency of remittances from the employer to the administrator;

(l) specifying the form and content of a notice to be provided under this Act as well as the manner in which and the period within which it is to be provided;

(m) respecting the setting of a contribution rate of 0% under subsection 45(2);

(n) respecting the circumstances in which a member or administrator is permitted to withdraw the funds in a member’s account;

(o) defining “disability” for the purposes of paragraph 47(2)(a);

(p) respecting variable payments;

(q) respecting the transfer of funds from the account of a member by the administrator;

(r) respecting the distribution of the funds in members’ accounts with a pooled registered pension plan that is being wound up;

(s) prescribing any measure necessary for the purposes of sections 64 and 65, including the time when and circumstances under which an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received;

(t) exempting from the application of subsections 64(1) and (3) any requirement under this Act to provide a person with information;

(u) prescribing anything that by this Act is to be prescribed; and

(v) generally for carrying out the purposes and provisions of this Act.

(2) The Governor in Council may make regulations excluding from included employment

(a) employment by an agent of Her Majesty in right of Canada; and

(b) any other employment if the Governor in Council, on a report of the Minister, is satisfied that provision has been made for the coverage of employees employed in that employment under the terms of a pension plan that is organized and administered for the benefit primarily of employees employed in other than included employment and that is required to be registered under the law of a designated province.

(3) A regulation made under this Act may be made applicable generally to all pooled registered pension plans or specifically to one or more pooled registered pension plans.

77. (1) A regulation made under this Act may incorporate by reference a document produced by a person or body other than the Minister or the Superintendent.

(2) A regulation may incorporate by reference a document that the Minister or Superintendent reproduces or translates from a document produced by a person or body other than the Minister or Superintendent, with any adaptations of form or reference that will facilitate its incorporation.

(3) A regulation may incorporate by reference a document that the Minister or Superintendent produces jointly with a provincial or government agency for the purpose of harmonizing the regulation with other laws.

(4) A document may be incorporated by reference as it exists on a particular date or as it is amended from time to time.

(5) No person may be convicted of an offence or subjected to a penalty for the contravention of a regulation if a document that is relevant to the offence or contravention is incorporated by reference in the regulation unless it is proved that, at the time of the alleged contravention, the document was reasonably accessible to the person or reasonable steps had been taken to ensure that the document was accessible to the public.

(6) For greater certainty, a document that is incorporated by reference in a regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

(7) A regulation that is specifically applicable to one pooled registered pension plan or one employer may not incorporate by reference a document produced by the employer or administrator or any person related to either of them, including any body corporate that — within the meaning of subsections 2(2), (4) and (5) of the Canada Business Corporations Act — is affiliated with either of them or is the holding body corporate or a subsidiary of either of them.

ANNUAL REPORT

78. The Superintendent must, as soon as feasible after the end of each fiscal year, submit to the Minister a report on the operation of this Act during that year, and the Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day the Minister receives it.

RELATED AMENDMENTS

Bankruptcy and Insolvency Act

79. (1) Subparagraph 60(1.5)(a)(ii) of the Bankruptcy and Insolvency Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B):

(2) Subparagraph 60(1.5)(a)(iii) of the Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B):

80. (1) Paragraph 81.5(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

(2) Paragraph 81.5(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i), by adding “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

81. (1) Paragraph 81.6(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

(2) Paragraph 81.6(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i), by adding “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):

Companies’ Creditors Arrangement Act

82. (1) Subparagraph 6(6)(a)(ii) of the Companies’ Creditors Arrangement Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B):

(2) Subparagraph 6(6)(a)(iii) of the Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B):

Canadian Human Rights Act

83. Subsection 15(1) of the Canadian Human Rights Act is amended by adding the following after paragraph (d):

Pension Benefits Standards Act, 1985

84. Subsection 4(2) of the Pension Benefits Standards Act, 1985 is amended by striking out “or” at the end of paragraph (b) and by adding the following after paragraph (b):

85. Subsection 7(2) of the Act is repealed.

86. (1) The portion of subsection 8(10) of the Act before paragraph (a) is replaced by the following:

(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

(2) Paragraph 8(10)(a) of the French version of the Act is replaced by the following:

87. Section 10.2 of the Act is renumbered as subsection 10.2(1) and is amended by adding the following:

88. Subsection 26(5) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):

89. Paragraph 39(1)(a.1) of the Act is repealed.