Pension Benefits Standards Act

[RSBC 1996] CHAPTER 352

Contents
Section
Part 1 — Administration
 1 Definitions and interpretation
 2 Designation and duties of Superintendent of Pensions
 2.1 Personal liability protection
 3 Pension Benefits Standards Advisory Council
 4 Interprovincial plans
 5 Reciprocal powers and agreements with other governments
 6 Superintendent's authority to extend time limits
 7 Administrators of multi-employer plans
 8 General responsibilities of administrators
 9 Reports and returns by administrators
 10 Disclosure of information by administrators
 11 Retention of records
 12 Effect of trust on participating employers
 13 Information from non-administrator employer
Part 2 — Registration and Amendment of Pension Plans
 14 Registration of plans
 15 Amendment to plans
 16 No administration of unregistered plan or amendment
 17 Effective date of plan or amendment
 18 Transfer agreements
 19 Cancellation of registration of plan
 20 Objection to refusal to register, cancellation of registration or direction under section 71
 21 Appeal to tribunal
 22 Public access to information
Part 3 — Provisions Required in Pension Plans
 23 Requirements of pension plans
 24 General requirements of pension plans
 25 Entitlement of employees to join plan
 26 Vesting of pension
 27 Vesting at pensionable age
 28 Vesting on termination of plan
 29 Amount and terms of pension vested
 29.1 Optional ancillary benefits
 30 Locking in commuted value of pension
 31 Interest on member contributions
 32 Minimum employer contributions for funding of pension
 33 Portability of commuted value of benefits
 34 Preretirement survivor benefits
 35 Postretirement survivor benefits
 36 Surviving spouse's change in status
 37 Adjustments in pension for CPP, QPP and OAS
 38 Age provisions in pension plans
 39 Payment or transfer of contributions
 40 Permitted variations in benefits
 41 Funding and solvency requirements
 42 Fund holders
 43 Remitting of contributions
 43.1 Deemed trust
 44 Investment requirements
 45 Benefits and assets on winding up
 46 Participating employer's withdrawal from multi-employer plan
 47 Fiscal year of plan
Part 4 — Termination, Winding Up and Disposal of Business
 48 Events constituting termination
 49 Superintendent's authority to declare termination of plan
 50 Notification of termination or winding up
 51 Payments to meet solvency requirements
 52 Effect of termination on assets
 53 Entitlements on partial termination
 54 Winding up of a pension plan
 55 Allocation and distribution of assets on termination
 56 Superintendent's authority to appoint administrator
 57 Expense of winding up
 58 Effect of disposal of business
Part 5 — Miscellaneous
 59 Effect of plan amendment
 60 Transfer of assets
 61 Transfer of surplus assets
 61.1 Return of excess contributions
 62 Provisions for arbitration of disputes and appointment of arbitrators
 63 Prohibition and effect of assignment of benefits and money
 64 Matrimonial property orders and agreements
 65 Evidence of entitlement to benefit
 66 Service of documents
 67 Proof of date of service
 68 Inspection and production of documents
 69 Pension advisory committee
 70 Minister may suspend or replace administrator
 71 Civil enforcement
 72 Offences and penalties
 73 Limitation period for prosecution
 74 Power to make regulations
 74.1 Transitional — multi-employer plan
 75 Fees

Part 1 — Administration

Definitions and interpretation

1  (1) In this Act:

"additional voluntary contributions" means contributions made by a member to a pension plan in addition to those contributions required to attain a pension and includes compound interest on those additional voluntary contributions but does not include optional defined benefit contributions or contributions whose payment, under the terms of the plan, imposes on the employer an obligation to make concurrent additional contributions;

"administrator" means

(a) subject to paragraphs (b) and (c), in relation to

(i)  a multi-employer plan, the board of trustees referred to in section 7 (1), or

(ii)  any plan other than a multi-employer plan,

(A)  a board of trustees constituted to administer the plan, or

(B)  the employer,

(b) a person appointed administrator of a plan by the superintendent under section 56 (1) or by the minister under section 70, or

(c) the superintendent under section 56 (2);

"advisory council" means the Pension Benefits Standards Advisory Council established under section 3;

"benefit" means a pension or any other benefit under a pension plan, and includes a return of contributions and any payment in a series of payments that constitutes a benefit;

"certified copy" means, in relation to a document, a copy of the document certified to be a true copy by a person authorized to certify the document;

"collective agreement" has the same meaning as in section 1 (1) of the Labour Relations Code;

"commuted value" means, in relation to benefits that a person has a present or future entitlement to receive, the actuarial present value of those benefits determined, as of the time in question,

(a) on the basis of actuarial assumptions and methods that are appropriate and in accordance with accepted actuarial practice,

(b) in accordance with any prescribed conditions, and

(c) in a manner acceptable to the superintendent;

"defined benefit plan" means a pension plan that is not a defined contribution plan;

"defined benefit provision" means a provision of a pension plan under which benefits are determined in any way other than that described in the definition of "defined contribution plan";

"defined contribution plan" means a pension plan under which benefits are determined solely by reference to what is provided by

(a) contributions made by a member and on a member's behalf by an employer, and

(b) interest and any other amounts allocated in respect of a member or former member;

"defined contribution provision" means a provision of a defined contribution plan, and includes a defined contribution provision of a defined benefit plan;

"designated province" means a province of Canada, other than British Columbia, prescribed to be a province in which there is in force legislation substantially similar to this Act;

"early retirement pension" means a pension that

(a) is received before pensionable age, and

(b) has an actuarial present value which is greater than the minimum actuarial present value of a pension as required by section 38 (8);

"employee" means an individual employed to do work or provide a service in British Columbia or in a designated province who is in receipt of or entitled to remuneration for the work or service;

"employer" means a person or organization, whether incorporated or not, from whom an employee receives or received remuneration, and includes any participating employers of a multi-employer plan who have employed that employee;

"employment" means,

(a) in relation to a multi-employer plan, an employee's employment with an employer for which the employer is required by the plan to make contributions to that plan on the employee's behalf, or

(b) in any case other than in relation to a multi-employer plan, an employee's employment with the employee's employer;

"former member" means, in relation to a pension plan, an employee or former employee

(a) whose membership has been terminated,

(b) who has begun receiving a pension, or

(c) whose plan has been terminated,

and who retains a present or future entitlement to receive a benefit under the plan;

"fund holder" means a person or combination of persons who, under section 42 (1), hold the pension fund of a pension plan;

"initial qualification date" means,

(a) in respect of employment in British Columbia, January 1, 1993, and

(b) in respect of employment in a designated province, the date on which legislation substantially similar to this Act is prescribed as having come into force in the designated province;

"insurance company" means a corporation authorized to carry on life insurance business in Canada;

"interest" means interest, gains and losses provided for under section 31;

"member" means, in relation to a pension plan that has not been terminated, an employee, and in the case of a multi-employer plan includes a former employee,

(a) who has made contributions to the plan or on whose behalf an employer was required by the plan to make contributions, and

(b) who has not terminated membership or begun receiving a pension;

"multi-employer plan" means a pension plan administered for employees of 2 or more employers, unless those employers are affiliates within the meaning of the Business Corporations Act;

"negotiated cost plan" means a pension plan, including a multi-employer plan, where an employer's financial contribution to the plan is limited to the amount the employer is contractually required to contribute to the plan;

"non-administrator employer" means an employer who is not an administrator;

"optional ancillary benefits" means enhanced benefits under a defined benefit provision in a pension plan that are

(a) elected by a member, former member or surviving spouse, and

(b) funded either fully or partially through optional ancillary contributions provided by the member;

"optional ancillary contributions" means contributions made by a member to a pension plan, for conversion to optional ancillary benefits, that are in addition to those contributions required to attain a pension and includes compound interest on those contributions;

"optional defined benefit contributions" means contributions made by a member to a pension plan to provide benefits under a defined benefit provision that are in addition to those contributions required to attain a pension and includes

(a) optional ancillary contributions,

(b) contributions to purchase benefits related to past service,

(c) contributions to increase pensionable service in a multi-employer plan, and

(d) compound interest on contributions referred to in paragraphs (a) to (c);

"participating employer" means, in relation to a multi-employer plan, an employer required to make contributions to that plan;

"pension" means a series of payments that continue for the life of a former member, whether or not the pension is afterward continued to another person;

"pension commencement" means the time by reference to which a person begins to receive a pension under a pension plan;

"pension plan" or "plan" means a plan, scheme or arrangement organized and administered to provide pensions for employees and former employees and under which, except in the case of a supplemental pension plan, the employer is or, in the case of a terminated plan, was required to make contributions on behalf of the members, and includes the pension fund of a plan but does not include a prescribed plan, scheme or arrangement;

"pensionable age" means, in relation to a pension plan, the age or the date referred to in section 38 (1);

"public sector pension plan" means a plan to which the Public Sector Pension Plans Act applies, and any other prescribed plan established under the authority of an enactment;

"registration" means registration, under Part 2, of a pension plan or of an amendment to a plan;

"remuneration" means wages, salary, pay, commission or other remuneration;

"RRSP" means a retirement savings plan, within the meaning of the Income Tax Act (Canada), that is registered under that Act;

"solvency tests" means the tests for the solvency of pension plans referred to in section 41;

"spouse" means, in relation to another person,

(a) a person who at the relevant time was married to that other person, and who, if living separate and apart from that other person at the relevant time, did not live separate and apart from that other person for longer than the 2 year period immediately preceding the relevant time, or

(b) if paragraph (a) does not apply, a person who was living and cohabiting with that other person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and who had been living and cohabiting in that relationship for a period of at least 2 years immediately preceding the relevant time;

"superintendent" means the Superintendent of Pensions designated under section 2;

"supplemental pension plan" means a pension plan in which the initial and continuing membership in the plan is subject to first having membership in another plan, the first mentioned pension plan being supplemental to that other plan;

"surplus assets" means the excess of the value of the assets of a pension plan over the value of the liabilities under the pension plan, both calculated in the prescribed manner;

"termination" means, when used in relation to a pension plan, an event constituting a termination of the plan under section 48, 49 or 58 (3) to the extent that the event affects members and former members;

"termination of membership" means,

(a) in relation to a member of a multi-employer plan and subject to paragraphs (b) and (c), the end of any period of 2 consecutive fiscal years of the plan in which the member has not completed at least 350 hours of employment,

(b) in relation to a member of a supplemental pension plan, including a supplemental multi-employer plan, the termination of the member's membership in the plan to which it is supplemental, and

(c) in relation to a member of any other plan, the cessation by the member of employment for which the employer is required by that plan to make contributions to that plan on the member's behalf,

and, in relation to a member of a multi-employer plan, includes the return of all contributions, with interest, under section 30 (6) or (7) or the transferring of the whole of the commuted value of the pension under section 33 (3) to (5) or 40;

"tribunal" means the Financial Services Tribunal under the Financial Institutions Act;

"winding up" means, in relation to a pension plan that has been terminated, the process of distributing the assets of the plan;

"Year's Maximum Pensionable Earnings" has the same meaning as in the Canada Pension Plan (Canada);

"years of continuous employment" means,

(a) in relation to a member of a multi-employer plan, fiscal years of the plan in each of which the member has completed at least 350 hours of employment, and

(b) in relation to a member of any plan other than a multi-employer plan, years of employment for a continuous period of time including, unless an actual cessation of employment has occurred, any period not longer than 26 consecutive weeks during which a person, who immediately before the start of the period was in the employment of the employer, is not doing work or providing a service for that employer for remuneration and after the expiry of which the person is again in the employment of that employer;

"years of continuous plan membership" means,

(a) in relation to a member of a multi-employer plan, fiscal years of the plan in each of which the person is a member of the plan and completes at least 350 hours of employment in each of those years, and

(b) in relation to a member of any plan other than a multi-employer plan, years of plan membership for a continuous period of time and without a cessation of employment but disregarding periods of temporary interruption of employment or service, or periods of layoff from employment, that do not exceed 26 weeks,

and includes periods of membership in all plans to which the employer was required to make contributions.

(2) For the purposes of paragraph (a) of the definition of "spouse" in subsection (1), persons are living separate and apart

(a) if they are living apart and either of those persons has the intention to live separate and apart from the other, or

(b) if, before the relevant time,

(i)  they had lived separate and apart for any period, and

(ii)  that period was interrupted or terminated only because either person became incapable of continuing to live separate and apart or of forming or having the intention to continue to live separate and apart of that person's own volition,

and the separation would probably have continued if that person had not become incapable.

(3) Despite paragraph (a) of the definition of "termination of membership" in subsection (1), a member of a multi-employer plan who terminates membership by virtue of that paragraph and who has ceased employment is deemed to have terminated membership in, and while employed in, the province where the member last ceased to be employed.

(3.1) Despite the definition of "multi-employer plan" in subsection (1), the superintendent may exempt a pension plan from that definition if the superintendent considers that an exemption is in the best interest of the plan members.

(4) For the purposes of the definition of "years of continuous employment" in subsection (1), if a member has at any time terminated membership in one plan to which the employer was required to make contributions due to becoming a member of another plan to which that employer is also required to make contributions, years of continuous employment includes, in relation to each of those plans, the aggregate of the years of continuous employment while a member of those plans.

(5) For the purposes of this Act, a person is deemed to be employed in the province in which the employer's establishment is located and to which the person is required to report for work.

(6) A person who is not required to report for work at an employer's establishment or is required to report to more than one establishment in different provinces is deemed to be employed in the province where the employer's establishment is located and from which the person's remuneration is paid.

(7) Unless otherwise specified, references to the termination or winding up of a pension plan include references to the termination or winding up of only part of a plan.

(8) For greater certainty,

(a) this Act applies to a public sector pension plan unless the public sector pension plan is specifically exempted under this Act, and

(b) if there is a conflict between this Act, or a regulation made under this Act, and another enactment establishing or referring to a public sector pension plan, this Act, or the regulation made under this Act, prevails.

Designation and duties of Superintendent of Pensions

2  (1) The minister must designate as Superintendent of Pensions a person appointed under the Public Service Act.

(2) The superintendent is the chief administrative officer charged with the administration and enforcement of this Act.

(3) The superintendent may designate a person who, in the absence of the superintendent, exercises the powers and performs the duties of the superintendent.

Personal liability protection

2.1  (1) In this section, "protected individual" means an individual who is or was any of the following:

(a) the superintendent;

(b) a person designated under section 2 (3) [designation and duties of Superintendent of Pensions] or 68 (1) (b) [inspection and production of documents];

(c) an employee of or any other individual acting on behalf of, or under the direction of, the superintendent.

(2) Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a protected individual because of anything done or omitted

(a) in the performance or intended performance of any duty under this Act, or

(b) in the exercise or intended exercise of any power under this Act.

(3) Subsection (2) does not apply to a protected individual in relation to anything done or omitted in bad faith.

(4) Subsection (2) does not absolve the government from vicarious liability arising out of anything done or omitted by a protected individual for which the government would be vicariously liable if this section were not in force.

Pension Benefits Standards Advisory Council

3  (1) The minister may establish a Pension Benefits Standards Advisory Council consisting of members appointed by the minister.

(2) A member of the advisory council holds office for a term set by the minister.

(3) Members of the advisory council who are not public service employees within the meaning of the Public Service Act may be paid remuneration set by the minister and must be reimbursed for reasonable out of pocket, travel and other expenses necessarily incurred in the discharge of their duties.

(4) Each year the members of the advisory council must elect from among themselves a chair, vice chair and secretary.

(5) The purposes of the advisory council are

(a) to provide advice to the minister and the superintendent on the administration of this Act and legislative changes, or on other issues as the minister may require, and

(b) to promote awareness of pensions and retirement income planning among employers and employees.

Interprovincial plans

4  If a pension plan must be registered under this Act, and the plan is already registered in a designated province, the superintendent may, by order, exempt the plan from the application of all or part of this Act on the condition that the plan complies with the requirements of the designated province.

Reciprocal powers and agreements with other governments

5  (1) If pension standards legislation of a designated province or of Canada is substantially similar to this Act,

(a) that pension standards legislation, as amended from time to time before or after the coming into force of this subsection, is deemed to apply with those modifications as the circumstances require for the purposes of this Act as though it had been enacted as a part of this Act, but only in respect of persons in British Columbia who are members or former members of pension plans that are subject to that pension standards legislation in accordance with an agreement referred to in subsection (2), and

(b) the regulatory authority acting under that pension standards legislation is authorized to administer the legislation made applicable under paragraph (a), but only in respect of persons in British Columbia who are members or former members of pension plans that are subject to that pension standards legislation in accordance with an agreement referred to in subsection (2).

(2) The minister may, with the approval of the Lieutenant Governor in Council, enter into an agreement with the government of a designated province or of Canada for any or all of the following purposes:

(a) to provide for the reciprocal registration and examination of pension plans and the reciprocal enforcement of specified laws affecting plans;

(b) to provide for the assumption by the regulatory authority of that government of any of the superintendent's functions and duties and the performance by the regulatory authority of that government of any of the superintendent's functions and duties under this Act;

(c) to provide for the assumption by the superintendent of any of that regulatory authority's functions and duties and the performance by the superintendent of any of that regulatory authority's functions and duties under the laws governing pension plans of that government's jurisdiction;

(d) if a plan is governed by this Act and the legislation of one or more of those governments, to provide that this Act or any provision of it

(i)  is to apply to the plan and the substantially similar legislation of those governments is not to apply to the plan, or

(ii)  is not to apply to the plan, and the substantially similar legislation of one of those governments, as made applicable under subsection (1) (a), is to apply to the plan;

(e) to establish conditions governing the application or non-application of legislation referred to in paragraph (d) (i) or (ii).

(3) The superintendent is authorized to administer this Act in respect of persons outside British Columbia who are members or former members of pension plans that are subject to this Act in accordance with an agreement referred to in subsection (2), but only if the government of the designated province or of Canada enacts legislation that adopts this Act into its substantially similar pension standards legislation and authorizes the superintendent to administer the adopted legislation.

Superintendent's authority to extend time limits

6  If the superintendent considers that there are extenuating reasons for a person's failure to do anything within a period or before a time limit imposed by this Act, the superintendent may, on receipt of a written request and by written notice to the applicant, extend the period within which that thing must be done to a time and subject to conditions that may be specified in the notice.

Administrators of multi-employer plans

7  (1) A board of trustees must be constituted to administer a multi-employer plan.

(2) If a multi-employer plan is established, or maintained by contributions required, under a collective agreement, the number of members of the board of trustees representing members of the plan must not be less than the number representing employers.

General responsibilities of administrators

8  (1) An administrator of a pension plan is responsible for the administration of the plan and must administer the plan in accordance with this Act and the regulations.

(2) The administrator must ensure that the pension plan, including the plan's contractual provisions, complies with this Act and the regulations.

(3) If a plan is terminated, the administrator must ensure that the plan is wound up in accordance with this Act and the regulations.

(4) If the plan contains a defined benefit provision, the administrator must

(a) have the plan reviewed in accordance with the regulations, and

(b) have the results of the review set out in the form of an actuarial valuation report.

(5) In the administration of a pension plan, the administrator must

(a) act honestly, in good faith and in the best interests of the members and former members and any other persons to whom a fiduciary duty is owed, and

(b) exercise the care, diligence and skill that a person of ordinary prudence would exercise when dealing with the property of another person.

(6) The provisions of subsection (5) are in addition to, and not in derogation of, any enactment or rule of law or equity relating to the duties or liabilities of a trustee.

(7) If an administrator employs an agent to carry out some of the duties of the administrator, the administrator must be satisfied of the agent's qualifications to perform the duties for which the agent is employed, and must carry out such supervision of the agent as is prudent and reasonable.

(8) An agent or employee of an administrator is subject to the standards that apply to the administrator under this section.

(9) An administrator or, if the administrator is a board of trustees, a member of the board who is the administrator, must not knowingly permit the administrator's interests to conflict with the administrator's duties and powers in respect of the pension plan.

(10) For the purpose of subsection (9), entitlement to a pension or other benefit under the plan does not constitute a conflict of interest.

Reports and returns by administrators

9  (1) Within 30 days after becoming the administrator of a pension plan, the administrator must ensure that the superintendent is informed, in writing, of the administrator's name and address.

(2) The administrator must inform the superintendent, in writing, of any change in the administrator's name and address within 60 days after that change.

(3) Subject to this section, the administrator must file with the superintendent,

(a) at the times prescribed and in the form required by the superintendent, returns containing information respecting the following:

(i)  the administration of the plan;

(ii)  contributions to the plan;

(iii)  membership in the plan;

(iv)  any other information necessary to permit the fulfillment of the superintendent's duties under this Act,

(b) in the case of a plan that contains a defined benefit provision, at the prescribed times or on the request of the superintendent,

(i)  actuarial valuation reports that

(A)  contain the prescribed information, and

(B)  are prepared by a Fellow of the Canadian Institute of Actuaries or another prescribed person, on the prescribed basis, and on the basis of actuarial assumptions and methods that are appropriate and in accordance with accepted actuarial practice, and

(ii)  [Repealed 1998-42-37.]

(c) if contributions to or benefits from a plan are determined by the provisions of a collective agreement or arbitration award, at the prescribed times, a copy of those provisions and any amendments to the provisions.

(4) If the superintendent considers that the actuarial valuation report required by subsection (3) does not comply with that subsection, the superintendent must

(a) notify the administrator, in writing, of that fact, and

(b) direct the administrator to have the report amended to comply with subsection (3).

(5) The administrator must promptly comply with a direction under subsection (4) (b).

(6) [Repealed 1998-42-37.]

(7) A plan must file audited financial statements, prepared in accordance with the accounting standards prescribed by regulation,

(a) annually if the plan has assets exceeding the prescribed amount, and

(b) at any time that the superintendent may require.

Disclosure of information by administrators

10  (1) An administrator must, in writing, and in the prescribed manner and at the prescribed times, provide the following information to the persons specified:

(a) to each member, and to an employee who is or is about to be eligible or required to be a member of the pension plan,

(i)  an explanation or summary of

(A)  the plan as it applies to that person,

(B)  amendments to the plan that relate to that person's benefits, and

(C)  the member's entitlements and obligations under the plan or amendments, and

(ii)  any other prescribed information;

(b) to each member, the prescribed information on an annual basis;

(c) to a former member,

(i)  following the termination of membership, the prescribed information, and

(ii)  subsequent to subparagraph (i), on a written request by the former member for the information, the same information but updated;

(d) to a member or former member who is about to begin receiving a pension, the prescribed information;

(e) to a member of a multi-employer plan who wishes to make a transfer under section 33 (3) or (4), the prescribed information;

(f) to the surviving spouse or designated beneficiary or personal representative of the estate of a deceased member or former member who is entitled to a benefit, the prescribed information;

(g) to a person referred to in paragraph (c), (d), (e) or (f) who has submitted a written request for it, the data used to calculate any benefits specified in the respective information referred to in that paragraph;

(h) to each member and former member on the termination or winding up of the plan, the prescribed information.

(2) The administrator must provide all information under subsection (1) without charge.

(3) In subsections (4) to (7) "document" includes part of a document.

(4) Within 10 working days after receipt of a written request and without charge, the administrator must permit a person entitled to a benefit, or the spouse or a designated beneficiary or agent of the person entitled to a benefit, to examine the following:

(a) a provision of the pension plan that was in force on any date included in a period during which that person, or the person through whom the benefit derives, was a member or, if that person is a former member, that otherwise affects the benefits;

(b) any document that concerns conditions of that person's employment and that contains provisions relating to the plan;

(c) any trust deed or agreement, insurance contract, bylaw or resolution relating to the plan;

(d) any agreement relating to the investment of the pension fund of the plan;

(d.1) the statement of investment policies and procedures respecting the plan;

(e) the 3 most recent returns filed with the superintendent under section 9 (3) (a);

(f) the 2 most recent actuarial valuation reports filed with the superintendent under section 9 (3) (b);

(g) any prescribed document.

(5) Unless a different agreement is reached between the administrator and the person requesting the examination under subsection (4), the examination must take place during regular working hours, as follows:

(a) if the person requests that the examination take place at the establishment of the administrator nearest to that person's residence, at that establishment;

(b) if no request is made under paragraph (a), at the place where the plan is administered.

(6) Instead of permitting the examination under subsection (4), the administrator may, without charge and within the period referred to in that subsection, provide a copy of the document that the person has requested to examine.

(7) The administrator is not obliged to comply with subsection (4) or (6) in respect of any person if the administrator has already complied with either of those subsections in respect of that person within the 12 months immediately preceding the request.

Retention of records

11  An administrator, or any other person responsible for the administration of a pension plan, who has possession or custody of any record respecting the plan must retain the record as follows:

(a) in the case of a record relating to a person entitled to benefits under the pension plan, for at least 6 years after the date all rights or entitlements of the person under the pension plan were paid, settled or extinguished;

(b) in the case of a document that creates or supports the pension plan, or any previously created document, for at least 6 years after the later of

(i)  the date on which the last assets of the pension fund were distributed, and

(ii)  the date on which the winding up of the pension plan is approved by the regulatory authority responsible for pensions;

(c) in the case of a record not described in paragraph (a) or (b), for at least 6 years after the date of the last transaction to which the record relates.

Effect of trust on participating employers

12  Despite any other law, if a multi-employer plan has been established by or under a trust, the participating employers of the plan are bound by the instrument establishing the trust and by any amendments to that instrument, whether or not they were parties to an agreement under which the trust was established or amended.

Information from non-administrator employer

13  (1) On the written request of an administrator and within a reasonable period specified in the request, a non-administrator employer must provide the administrator with any information or records required by the administrator in order to comply with the plan and to discharge the administrator's responsibilities under section 8.

(2) The request under subsection (1) must specifically identify the information or records required.

(3) If the non-administrator employer does not provide the information or records requested within the period specified in the request, the administrator may apply to the Supreme Court for an order to compel provision of the information or records.

(4) The Supreme Court may make the order, subject to any conditions the court considers appropriate, if the court is satisfied that

(a) the information or records are in the possession of or under the control of the non-administrator employer, and

(b) the information or records are required for the purposes of subsection (1).

(5) If the non-administrator employer requests that any records provided under subsection (1) be returned, the administrator must return those records within a reasonable period.

(6) The administrator may make copies of or take extracts from any records provided under subsection (1).

Part 2 — Registration and Amendment of Pension Plans

Registration of plans

14  (1) An administrator of a pension plan must apply for registration of the pension plan by filing an application with the superintendent.

(2) An application filed under subsection (1) must be accompanied by the following:

(a) a copy, certified by the administrator to be a true copy, of

(i)  the pension plan,

(ii)  any document that creates the plan or under which the plan is constituted,

(iii)  any trust deed or agreement, insurance contract, bylaw or resolution relating to the plan, and

(iv)  [Repealed 1998-42-39.]

(v)  any other prescribed document;

(b) a copy of

(i)  the actuarial valuation report referred to in section 9 (3) (b), and

(ii)  the explanation or summary referred to in section 10 (1) (a) (i);

(c) a statement in the prescribed form that, in the administrator's opinion, the plan complies with this Act and the regulations.

(3) An application under subsection (1) must be filed no later than 60 days after the establishment of the plan.

(4) The application for registration must be in the form required by the superintendent and must contain the information referred to in section 9 (3) (a).

(5) Unless the superintendent is of the opinion that the plan does not comply with this Act and the regulations, the superintendent must

(a) register the plan filed under subsection (1) for registration, and

(b) issue to the administrator a certificate of registration for the plan.

Amendment to plans

15  (1) If an amendment is made

(a) to a pension plan that is registered or in respect of which an application for registration is pending, or

(b) to any document referred to in section 14 (2) (a) (ii), (iii) or (v),

an administrator must, within 60 days after the amendment is made, file a copy, certified by the administrator to be a true copy, of the amendment to the plan or document, together with a statement in the prescribed form that, in the opinion of the administrator the plan or document as amended complies with this Act and the regulations.

(2) If a new document of the type referred to in section 14 (2) (a) (ii), (iii) or (v) is made, the new document must be filed in the same manner as required by subsection (1) of this section.

(3) Unless the superintendent is of the opinion that an amendment filed under subsection (1) (a) does not comply with this Act and the regulations, the superintendent must

(a) register the amendment filed for registration under subsection (1), and

(b) issue to the administrator a notice of registration for the amendment.

(4) For the purposes of this section, the superintendent, with the consent of the plan administrator who filed the plan amendment, may sever from a plan amendment filed under subsection (1) (a) that portion of the amendment that does not comply with this Act and the regulations, and register in accordance with subsection (3) the portion of the amendment that remains.

(5) The administrator must ensure that an amendment to a document referred to in section 14 (2) (a) (ii), (iii) or (v) does not contain any provision that a pension plan is prohibited under this Act from containing.

No administration of unregistered plan or amendment

16  (1) An administrator must not administer a pension plan unless

(a) the plan is registered, or

(b) subject to sections 20 (6) and 21 (4), the application for registration has been filed and the administrator has not received a written notice that the superintendent refuses to register the plan.

(2) An administrator must not administer a pension plan in a manner that reflects an amendment to the plan unless

(a) the amendment is registered, or

(b) subject to sections 20 (6) and 21 (4), the amendment has been filed and the administrator has not received written notice that the superintendent

(i)  refuses to register the amendment, or

(ii)  is of the opinion that the amendment does not comply with this Act and the regulations.

(3) For the purposes of subsection (2), "amendment" means the amendment as filed under section 15 or that portion of the amendment not severed by the superintendent under subsection (4) of that section.

Effective date of plan or amendment

17  A pension plan or an amendment to a plan may be made effective

(a) on a date before the plan's registration, or

(b) on or after the date of application for the plan's registration.

Transfer agreements

18  (1) In this section, "transfer agreement" means an agreement between the administrators of 2 or more pension plans respecting the transfer between the plans of money or benefits in respect of individual members or former members.

(2) Within 60 days after a transfer agreement is entered into, an administrator must file with the superintendent a certified copy of any transfer agreement relating to the pension plans.

(3) The administrator must ensure the transfer agreement does not contain any provision relating to a benefit that is subject to this Act and which a pension plan is prohibited by this Act from containing.

Cancellation of registration of plan

19  (1) The superintendent may cancel the registration of a pension plan

(a) that does not comply with this Act or the regulations, or

(b) in respect of which the administrator has not complied with this Act, the regulations, the plan or a direction issued under section 71.

(2) The superintendent may cancel the registration of a plan that has been terminated and wound up in accordance with this Act and the regulations.

(3) A cancellation under this section has effect from a date, not earlier than the date on which the non-compliance under subsection (1) occurred or began, as determined by the superintendent.

Objection to refusal to register, cancellation of registration or direction under section 71

20  (1) If the superintendent

(a) refuses to register a pension plan or a plan amendment filed for registration,

(b) cancels a registration under section 19 (1), or

(c) issues a direction under section 71,

the superintendent must promptly serve on the administrator a written notification of the refusal to register, the cancellation of the registration or the issuance of the direction, as the case may be, and give reasons for the decision.

(2) In the case of a cancellation of registration, the notification must specify the date referred to in section 19 (3).

(3) Within 60 days after service of the notification under subsection (1), the administrator may serve on the superintendent a notice of objection setting out the reasons for the objection and all relevant facts.

(4) On receipt of the notice of objection under subsection (3), the superintendent must promptly reconsider the refusal, cancellation or direction and rescind, vary or confirm the previous decision or direction and serve on the administrator a written notification of that decision.

(5) A notification under subsection (4) must be accompanied by reasons, unless the decision is to register the plan or plan amendment or to rescind the cancellation or direction.

(6) If an administrator who has been served a notification under subsection (1) serves a written notice on the superintendent stating an intention to serve a notice of objection under subsection (3), the administrator may, despite the superintendent's decision,

(a) administer the plan, or

(b) administer the plan in a manner that reflects the amendment until the earlier of

(i)  a decision of the superintendent under subsection (4), and

(ii)  the expiration of the period referred to in subsection (3) without the notice of objection having been served.

Appeal to tribunal

21  (1) An administrator may appeal a decision of the superintendent under section 20 (4) to the tribunal, and, unless otherwise provided for in this Act, sections 242.2 and 242.3 of the Financial Institutions Act apply.

(1.1) Despite section 242.2 (2) of the Financial Institutions Act, an appeal under subsection (1) of this section operates as a stay unless an order is made under section 242.2 (10) (a) of the Financial Institutions Act.

(2) The administrator must provide a copy of the notice of appeal under subsection (1) to the superintendent.

(3) [Repealed 2003-51-42.]

(4) If an administrator who has been served a notification under section 20 (4) serves a written notice on the superintendent stating an intention to appeal under this section, the administrator may, despite the superintendent's decision,

(a) administer the plan, or

(b) administer the plan in a manner that reflects the amendment until the earlier of

(i)  a decision of the tribunal, and

(ii)  the expiration of the period referred to in subsection (1) without the appeal having been made.

(5) On an appeal referred to in subsection (1), the tribunal may make an order requiring the superintendent to register the plan or amendment, or rescind the cancellation of the registration of the plan, or make any other order the tribunal considers appropriate.

Public access to information

22  (1) Subject to this section, all pension plan documents filed with the superintendent must be available for examination by any person at the office of the superintendent during regular office hours.

(2) Subsection (1) does not apply to a document that contains information about the pension entitlement of a specific individual unless that individual gives written permission for the information to be released.

(3) If an employer alleges to the superintendent that public access to information in a document could have an adverse effect on the employer's competitive position, the superintendent may, on being satisfied of the correctness of the allegation, decline to make the document available for examination.

Part 3 — Provisions Required in Pension Plans

Requirements of pension plans

23  (1) A pension plan for members and former members and their spouses, designated beneficiaries and estates must provide for

(a) benefits, contributions and other entitlements and obligations required by this Part, or

(b) benefits, contributions and other entitlements and obligations that are more favourable, having regard to the intent of this Act, than those required by this Part.

(2) The plan must incorporate the appropriate definition and interpretation provisions of section 1 that are necessary to ensure the plan's interpretation in accordance with this Act.

(3) Despite subsections (1) and (2) but subject to subsections (4) and (5), a plan is not required to include or incorporate

(a) a provision of this Part whose inclusion in the plan is indicated as being optional,

(b) a provision of this Part which, in the opinion of the superintendent, is not and will not be applicable to the particular plan in question and whose exclusion from that plan is permitted by the superintendent, or

(c) provisions of sections 25 (2), (4), (5), (7) and (8), 29.1, 30 (11), 33 (1.1), (2.1), (3.1), (5.1), (5.2) and (6), 35 (6) (a), 37 (1) and (4), 39 (2), 41 (1) and (4), 43 (4) and 44 (4) and (5).

(4) To the extent that the plan does not include a provision required by this Part, the plan is deemed to make that provision so as to make the plan comply with this Part.

(5) The absence from the plan of provisions referred to in subsection (3) (b) or (c) does not affect the application or possible application of those provisions to the plan.

General requirements of pension plans

24  (1) Subject to this Part, a pension plan must provide for the following:

(a) the administration and maintenance of the plan;

(b) the means of paying the administration expenses;

(c) the conditions for membership in the plan;

(d) benefits and entitlements on

(i)  the termination of membership,

(ii)  the death of a member or former member,

(iii)  pension commencement, and

(iv)  the termination of the plan;

(e) the deadline for choosing any option and the consequences of not meeting the deadline;

(f) the matters prescribed under section 31 (4) with respect to interest;

(g) the treatment of surplus assets during the continuation of the plan;

(h) the determination of benefits, member and employer contributions and the allocation of contributions using formulas that comply with the prescribed criteria;

(i) the method for conversion of optional ancillary contributions to optional ancillary benefits upon retirement, termination of membership, pension commencement, pre-retirement death and winding up of the plan.

(2) The plan must not provide for or permit any of the following:

(a) different rates or amounts of contributions by the members based on differences in sex;

(b) different pensions, annuities or benefits based on differences in sex;

(c) different options as to pensions, annuities or benefits based on differences in sex;

(d) the inclusion in or exclusion from membership in the pension plan of an employee on the basis of the sex of the employee.

(3) In order to comply with subsection (2), the plan may

(a) use a prescribed method of calculation or valuation,

(b) use a unisex mortality table, or

(c) provide for employer contributions that vary according to the sex of the employee.

Entitlement of employees to join plan

25  (1) Subject to subsection (3), every employee in a prescribed class of employees for whom a pension plan is maintained is, on application, eligible to become a member of the pension plan after completing 2 years of continuous employment with the employer, which period may begin before January 1, 1993, with earnings of not less than 35% of the Year's Maximum Pensionable Earnings in each of 2 consecutive calendar years.

(2) For the purposes of subsection (1), the prescribed class of employees may consist of employees within that class who are employed at a particular establishment of the employer.

(3) For the purposes of subsection (1), a multi-employer plan may require not more than 2 years of continuous employment, which period may begin before January 1, 1993, in which the employee completes at least 350 hours of employment with one or more of the participating employers with earnings of not less than 35% of the Year's Maximum Pensionable Earnings in each of 2 consecutive fiscal years.

(4) If a group of employees in a prescribed class of employees are covered by the plan but the employees in that group are employed other than on a basis that the employer considers to be full time, the employer may establish a separate plan for that group.

(5) The separate plan under subsection (4) must be comparable to the plan covering employees in the prescribed class who are considered to be employed on a full time basis,

(a) in the case of a defined benefit plan, in terms of the value of the benefits provided, or

(b) in the case of a defined contribution plan, in terms of the rates or amounts of contributions,

taking into account the differences in the number of hours worked in the relevant period of employment.

(6) Despite subsection (1), the plan may provide that an employee must be a member as part of the terms and conditions of employment.

(7) If an employee is eligible to join 2 or more of the employer's plans because he or she is in more than one of the prescribed classes of employees, the plans may limit the employee's eligibility for membership to only one of those plans.

(8) A plan must not require, as part of the terms and conditions of employment or prospective employment, that a person transfer to that plan, or any other plan, any of the commuted value of a benefit under another plan.

Vesting of pension

26  (1) If a member completes 2 years of continuous plan membership, which period may begin before January 1, 1998, and terminates his or her membership while employed in British Columbia, there immediately vests in the member, on that termination, an entitlement to receive a pension in respect of his or her membership in the plan.

(2) [Repealed 1999-41-14.]

(3) For the purposes of this Act, a benefit vests when the person acquires an unconditional entitlement under the pension plan to receive the benefit, whether at the present time or in the future.

Vesting at pensionable age

27  If a member has reached pensionable age and terminates membership while employed in British Columbia, there immediately vests in the member on that termination an entitlement to receive a pension in respect of his or her membership in the plan.

Vesting on termination of plan

28  On the termination of a pension plan, there immediately vests in each member an entitlement to receive a pension in respect of his or her membership in the plan.

Amount and terms of pension vested

29  (1) The pension payable under section 26 (1) or 27 in respect of employment in British Columbia or in a designated province, other than the portion accruing from additional voluntary contributions, must not be less than the pension that the terms of the plan provide for that employment at the date of the termination of membership.

(2) Subject to any regulations made with reference to section 45 (1), the pension payable under section 28, other than the portion accruing from additional voluntary contributions, must not be less than the pension payable under subsection (1) of this section.

Optional ancillary benefits

29.1  (1) The conversion of optional ancillary contributions to optional ancillary benefits must be done on the basis of actuarial assumptions and methods that are appropriate and in accordance with accepted actuarial practice.

(2) If a member's accumulated optional ancillary contributions exceed the amount that can be converted to optional ancillary benefits upon retirement, termination of membership, pension commencement, preretirement death or winding up of the plan, a plan may require forfeiture of the unused portion.

Locking in commuted value of pension

30  (1) Subject to this section and sections 32, 34 (4) and (6) and 40,

(a) a member or former member must not withdraw any of the commuted value of a pension in respect of membership on and after the initial qualification date, and

(b) there must not be surrendered or commuted,

(i)  during the lifetime of a member or former member, a pension in respect of membership on and after the initial qualification date or any interest in that pension, or

(ii)  during the lifetime of a surviving spouse entitled to a pension under section 34 or 35, that pension or any interest in that pension.

(2) Subsection (1) does not apply to any part of a pension accruing from additional voluntary contributions.

(2.1) Subsection (1) does not apply to any part of the pension accruing from optional defined benefit contributions made in respect of membership before the initial qualification date.

(2.2) Subject to subsection (12), subsection (1) applies to a spouse or former spouse who receives a share of the pension under Part 6 of the Family Relations Act.

(3) The commuted value locked in under subsection (1) must be applied towards the provision of the pension.

(4) A pension plan must provide that, at the member's request, all of the member's contributions to the plan be returned, with interest, if

(a) a member has terminated membership in the plan while employed in British Columbia,

(b) the termination was not due to becoming a member of another plan to which the employer was required to contribute, and

(c) an entitlement to receive a pension did not vest on the termination.

(5) If

(a) a pension has vested in a former member in respect of membership on and after January 1, 1993,

(b) the former member has terminated membership in the plan, and

(c) an entitlement to receive a pension did not vest in respect of contributions to the plan made before January 1, 1993,

the member's contributions made before that date must be returned, with interest, at the member's request.

(6) A multi-employer plan must provide that, at the member's request, all of a member's contributions to the plan be returned, with interest, if

(a) the member of the multi-employer plan has not completed at least 350 hours of employment during any period of 2 consecutive completed fiscal years of the plan, and

(b) an entitlement to receive a pension has not vested and would not have vested had the member terminated membership at the end of that period.

(7) A multi-employer plan may require that all of a member's contributions to the plan be returned, with interest, if

(a) the member is no longer employed by any participating employer or is no longer in a class of employees referred to in section 25 (1) that is covered by the plan, and

(b) an entitlement to receive a pension has not vested and would not have vested had the member terminated membership.

(8) If

(a) a registered amendment to a plan, or

(b) a plan that has been adopted and registered in place of another plan,

provides for

(c) the assumption by the employer of liability for the funding of accrued benefits that were previously funded by member contributions and interest, and

(d) the return of those member contributions and interest representing those accrued benefits,

those member contributions and interest may be paid to the member or former member.

(9) If a member terminates membership in a plan to which the employer is required to contribute due to becoming a member of another plan to which the same employer is required to contribute, all the member's contributions to the first plan must be returned, with interest, if

(a) the member no longer has membership in any plan to which the employer is required to contribute, and

(b) an entitlement to receive a pension has not vested in the member.

(10) Subject to section 58 (4), a pension plan that has not terminated and which provides for earlier vesting of a pension entitlement than is required under section 26 (1) may permit a payment of the commuted value to a person

(a) who terminates membership under the plan before completing the period referred to in section 26 (1), and

(b) in whom an entitlement to receive a pension under the plan has vested.

(11) A plan member or former member, age 65 or over, may commute, on the prescribed basis and in the prescribed manner, his or her total entitlement in every defined contribution pension plan, RRSP referred to in section 33 (2) (b) and prescribed retirement income fund if the sum of each plan, RRSP and fund is, in the aggregate, less than the prescribed amount.

(12) Subsection (1) does not apply to a member, former member, spouse, surviving spouse or former spouse who

(a) has been absent from Canada for 2 or more years, and

(b) has become a non-resident of Canada as determined for the purposes of the Income Tax Act (Canada).

Interest on member contributions

31  (1) Subject to subsections (2) and (3), if

(a) member contributions were required under a defined benefit plan in order to attain benefits, or

(b) additional voluntary contributions or optional defined benefit contributions have been made,

interest, gains and losses must be applied to the contributions.

(2) In the case of a defined contribution plan or a defined contribution provision of a defined benefit plan, employer and member contributions must be credited or debited with the interest, gains and losses that can reasonably be attributed to the operation of the pension fund holding those contributions for the plan.

(3) A defined benefit plan may provide that, if additional voluntary contributions or optional defined benefit contributions have been made to the plan, the additional voluntary contributions or optional defined benefit contributions, as the case may be, are to be credited or debited with the interest, gains and losses that can reasonably be attributed to the operation of the pension fund holding those contributions for the plan.

(4) Interest, gains and losses referred to in this section must be calculated in the prescribed manner and applied to contributions at the prescribed rates and prescribed times.

Minimum employer contributions for funding of pension

32  (1) If a member is required to make contributions in order to attain a pension under a defined benefit plan, not more than 1/2 of the commuted value of the pension in respect of membership on and after January 1, 1993 may be provided by those contributions, with interest, made on or after that date.

(2) If the value of the member's contributions made on or after January 1, 1993, with interest, exceeds 1/2 of the commuted value of the pension in respect of membership on and after January 1, 1993, the amount of the excess, at the option of the member, must be allocated and distributed in accordance with subsection (3)

(a) on the termination of a member's membership in a defined benefit plan,

(b) on the termination of a defined benefit plan, or

(c) on the commencement of a member's pension from a defined benefit plan.

(2.1) Subsections (1) and (2) apply to improvements in, or the purchase of, benefits related to past service before or after January 1, 1993 under a defined benefit plan unless the benefit improvement is provided entirely from the member's optional defined benefit contributions.

(3) For the purposes of subsection (2), excess contributions must be dealt with in one or more of the following ways:

(a) returned to the member;

(b) transferred to another pension plan, if and to the extent that the other plan permits the transfer;

(c) transferred to an RRSP;

(d) transferred to an insurance company or prescribed savings institution to purchase a deferred pension or other prescribed retirement income fund;

(e) used to increase the amount of the pension, if and to the extent that the plan provides for an increase.

(3.1) If a plan, or part of a plan, is converted from a defined benefit provision to a defined contribution provision and the conversion applies to all service, subsections (1), (2), (2.1) and (3) are to be applied at the time of the conversion for all members affected by the conversion.

(4) Contributions made in respect of a defined contribution provision of a defined benefit plan and any part of the commuted value of the pension deriving from those contributions must not be taken into account for the purposes of subsections (1) and (2).

(5) For the purposes of subsections (1) and (2), a defined benefit plan may treat

(a) contributions to a supplemental defined benefit pension plan as aggregated with contributions made to the plan to which it is supplemental, and

(b) the commuted value deriving from the contributions to the supplemental pension plan as aggregated with the commuted value under the principal plan.

(6) If a multi-employer defined benefit plan provides that a member, who has not accrued the maximum pension permitted under the plan in a fiscal year of the plan, is permitted to make contributions in order to increase the member's pension accrual up to the maximum permitted for that year under the plan,

(a) those contributions, with interest, and

(b) the commuted value deriving from those contributions and interest

must not be taken into account for the purposes of subsection (1) or (2).

(7) Subsections (1) and (2) do not apply to benefits that result from additional voluntary contributions or optional defined benefit contributions.

(8) This section does not apply to a public sector pension plan.

Portability of commuted value of benefits

33  (1) If

(a) a member terminates membership in a pension plan, or the plan is terminated,

(i)  on or after the initial qualification date, and

(ii)  while the member is employed in British Columbia, and

(b) an entitlement to receive a pension vests in the member on that termination,

the member may make a transfer in accordance with subsections (2) and (2.1), in the manner and to the extent prescribed, of the whole of the commuted value of the pension.

(1.1) Despite subsection (1), a defined benefit plan may restrict the transfer if the termination referred to in subsection (1) occurs on or after the date on which the member reaches the age of 55 years.

(2) The transfer under subsection (1) may be made to one or more of the following:

(a) another pension plan, if and to the extent that the other plan permits the transfer, on the condition that the eventual payment from the other plan be made only in the form of a pension that would otherwise be required by this Act or a benefit referred to in section 40 (2);

(b) an RRSP on the conditions prescribed under section 74 (2) (d);

(c) an insurance company or prescribed savings institution to purchase a deferred pension or other prescribed retirement income fund that

(i)  is not commutable,

(ii)  will not begin earlier than the earliest date that the pension could have begun under the plan, and

(iii)  will be in the form referred to in paragraph (a).

(2.1) Despite subsection (2), a transfer of the commuted value of benefits in respect of membership before January 1, 1993 may, if the plan so provides, be transferred to an RRSP, without conditions, or may be paid to the member.

(3) Subject to subsection (3.1), a member of a multi-employer plan who does not complete at least 350 hours of employment during any period of 2 consecutive completed fiscal years of the plan may, in the manner and to the extent prescribed in relation to subsections (1), (2) and (2.1), make the transfer referred to in those subsections.

(3.1) A multi-employer plan may provide that subsection (3) does not apply to the plan if

(a) the member accrues further benefits in the plan after the period referred to in subsection (3), and

(b) an application for transfer under subsection (3) was not received by the administrator before the accrual of further benefits.

(4) A multi-employer plan may provide that a member who is no longer employed by a participating employer or in a class of employees referred to in section 25 (1) that is covered by the plan may, in the manner and to the extent prescribed in relation to subsections (1), (2) and (2.1) of this section, make the transfer referred to in those subsections.

(5) Despite sections 26 to 28 and subsections (1), (3) and (4) of this section, the plan may provide that the member must make the transfers referred to in those sections and subsections if the commuted value of the pension does not exceed the prescribed amount.

(5.1) Despite section 26 and subsections (1), (3) and (4) of this section, a defined contribution plan may provide that a member

(a) who terminates membership in the plan,

(b) in whom an entitlement to receive a pension vests on that termination, and

(c) who is not eligible for an immediate pension

must, in the manner and to the extent prescribed in relation to subsections (1), (2) and (2.1), make the transfer referred to in those subsections.

(5.2) Despite section 28 and subsections (1), (3) and (4) of this section, a plan may provide that upon plan termination a member in whom a pension vests on that termination and who is not eligible for an immediate pension must, in the manner and to the extent prescribed in relation to the transfer referred to in subsections (1), (2) and (2.1), make the transfer.

(6) On making the transfer under subsection (1), (3) or (4), the member is not entitled to any further benefits in respect of membership before the transfer.

(7) If a member terminates membership in a pension plan due to becoming a member of another plan to which the employer is required to contribute and the first plan has not been terminated, the plan may postpone entitlement to transfer the commuted value of the pension under subsection (1) until the member terminates membership in that other plan or that other plan is terminated, whichever occurs first.

(8) If a person elects to make, or a plan requires, a transfer under this section, section 34 of this Act or Part 6 of the Family Relations Act, the administrator must make the transfer within 60 days after completing and filing with the administrator all documents required to authorize the transfer, including evidence required under section 65 of this Act.

Preretirement survivor benefits

34  (1) If a member or former member dies before pension commencement, benefits are payable,

(a) subject to this section and section 40 (1) and (2), by way of a pension to the surviving spouse, or

(b) if there is no surviving spouse, or if the administrator receives from the surviving spouse a statement in the prescribed form that waives the spousal entitlement under paragraph (a), by way of a lump sum payment to

(i)  the designated beneficiary, or

(ii)  the personal representative of the estate in his or her representative capacity if there is no valid designation of beneficiary.

(2) In the case of a defined benefit plan, the commuted value of the pension to the surviving spouse under subsection (1) (a) or the amount of the lump sum payable to the designated beneficiary or personal representative of the estate under subsection (1) (b) must not be less than the sum of

(a) the value of the deceased's contributions to the plan made before January 1, 1993, together with interest, and

(b) the greater of the following:

(i)  60% of the commuted value of

(A)  the pension in respect of the deceased's membership on and after January 1, 1993 if an entitlement to receive a pension would have vested in the deceased under section 26 (1) or 27 had the deceased terminated his or her membership immediately before death, or

(B)  the pension in respect of the deceased's membership on and after January 1, 1993 if the plan has been terminated,

plus that value of the deceased's contributions to the plan made on and after January 1, 1993, together with interest, that is in excess of 1/2 of the commuted value of that pension;

(ii)  the deceased's contributions to the plan made on and after January 1, 1993, together with interest.

(3) In the case of a defined contribution plan, the commuted value of the pension to the surviving spouse under subsection (1) (a) or the amount of the lump sum payable to the designated beneficiary or personal representative of the estate under subsection (1) (b) must not be less than the sum of

(a) 60% of the value of the employer's contributions to the plan made on or after January 1, 1993, together with interest, if an entitlement to receive a pension would have vested in the deceased under section 26 (1) or 27 had the deceased terminated his or her membership immediately before death or if the plan has been terminated, and

(b) the deceased's contributions to the plan, together with interest.

(4) The pension payable to the surviving spouse must be commuted if

(a) the plan has been terminated and the deceased did not meet the requirements of section 26 (1), or

(b) an entitlement to receive a pension would not have vested in the deceased as set out in subsection (2) (b) (i) (A) or (3) (a).

(4.1) Subsection (4) does not apply to a surviving spouse if an entitlement to receive a pension would have vested in the deceased earlier than as required by section 26 or 27.

(5) The surviving spouse may transfer the whole of the commuted value of the pension in accordance with the conditions specified in and in relation to section 33 (1), (1.1), (2) and (2.1).

(6) A plan may provide that the surviving spouse must make the transfer set out in subsection (5).

(7) The surviving spouse has the same options in relation to the excess value of contributions, together with interest, referred to in subsection (2) (b) (i) as the deceased would have had under section 32 (3), including the option of a lump sum payment to the spouse.

(8) If a spouse dies before pension commencement without having elected or without becoming entitled to make the transfer under subsection (5), an amount equal to at least the amount of the member's contributions, together with interest, must be paid to the spouse's designated beneficiary or, if there is no designated beneficiary living, to the spouse's estate.

(9) A surviving spouse may commute any part of a pension payable to the surviving spouse that arises from additional voluntary contributions.

(10) If a pension plan provides a right to commute any part of a pension in the event of termination of membership in the plan, a surviving spouse may commute the part of the pension that arises from contributions by the member and by the employer that were made before January 1, 1993.

(11) If a pension plan permits a payment of the commuted value of the pension to the deceased under the conditions specified in section 30 (10), the surviving spouse may receive the commuted value or may make a transfer as specified under subsection (5).

(12) This section does not apply with respect to a spouse or former spouse who has already received a share of the pension under Part 5 or 6 of the Family Relations Act.

Postretirement survivor benefits

35  (1) Despite anything in this Part and except as provided in this section and section 40 (1), the pension payable to a former member who had a spouse at the date the pension commenced is to be a joint pension payable during the joint lives of the former member and the spouse and which, after the death of either, continues to be payable to the survivor for life.

(2) A pension plan may provide for the joint pension to the survivor to be decreased by not more than 40% or, subject to subsection (3), to be actuarially adjusted.

(3) The joint pension may be adjusted only if the pension's actuarial present value following the adjustment is not less than the actuarial present value of the normal form of pension under the plan that would be payable to the former member from his or her pensionable age were it not for this section and the provision in the plan corresponding to this section.

(4) If the pension plan provides for alternative forms of payment, the former member may receive a pension in a form acceptable under the plan but that does not comply with this section if the administrator receives, before pension commencement, a statement by the spouse in the prescribed form that

(a) the spouse has reviewed the information referred to in section 10 (1) (d) and is aware of the spousal entitlements under this section,

(b) waives the spousal entitlements, and

(c) is signed by the spouse in the presence of a witness and outside the presence of the member or former member.

(5) The statement under subsection (4) is not valid if that statement is made more than 90 days before pension commencement.

(6) This section does not apply to a spouse or former spouse in respect of whom the administrator, before pension commencement, receives notice of a division of the pension entitlement arising under

(a) a separation agreement, or

(b) an order referred to in section 64 affecting the pension.

(7) This section does not apply if payment of the pension began before January 1, 1993.

Surviving spouse's change in status

36  A pension payable to the surviving spouse of a deceased member or former member does not cease on the spouse's acquiring a new spouse on or after January 1, 1993.

Adjustments in pension for CPP, QPP and OAS

37  (1) In this section, "CPP", "QPP" and "OAS" mean respectively the Canada Pension Plan (Canada), the Quebec Pension Plan (Quebec) and the Old Age Security Act (Canada).

(2) A pension plan may provide that a member or former member may, on or before pension commencement, elect to receive a pension, the amount of which is adjusted by reference to benefits payable under CPP or QPP, so long as the pension payments payable after the benefits under CPP or QPP have begun are not less than the amount prescribed for monthly pension payments in relation to section 40 (1).

(3) If the plan provides for the reduction of a pension because of a member's or former member's entitlement to a pension under CPP or QPP, the reduction must not exceed an amount determined by a prescribed formula.

(4) The amount of pension being paid under the plan must not be reduced in respect of any change in the benefits being paid under CPP or QPP.

(5) A pension plan must not provide that the pension which a person is eligible to receive from the plan in respect of service on and after January 1, 1993 will be reduced by any amount because of the person receiving a benefit under OAS unless the reduced amount is an option selected by the member or former member.

Age provisions in pension plans

38  (1) A pension plan must provide for

(a) a specific age, or

(b) a date by reference to a specific age,

at which a member is normally eligible to begin receiving a pension under the plan without reduction or increase to the pension.

(2) The provision under subsection (1) must be made without taking into account any term of the plan by which an individual member is permitted to begin receiving a pension before or after the general membership would normally begin receiving the pension.

(3) Subject to this section, if the member continues in employment after reaching pensionable age, the member continues to be a member on the same basis that applied before the member reached pensionable age.

(4) The plan may

(a) set a maximum number of years of employment that can be taken into account in determining the pension, or

(b) set a maximum amount for the pension,

and, when the member reaches that maximum, no further contributions are payable by the member.

(5) The plan may provide that a member may choose to begin receiving a pension from pensionable age instead of continuing to be a member under subsection (3), in which case no further contributions are payable by the member.

(6) A member whose plan is terminated, or who terminates membership, on or after January 1, 1993 and in whom an entitlement to receive a pension vests in accordance with section 26 or 28 may begin receiving, at any time on or after the date on which the member reaches the age of 55 years, the pension that has accrued to that time.

(7) A pension or benefit that commences before pensionable age may be reduced in comparison with what would have been payable at pensionable age.

(8) The actuarial present value of the reduced pension or benefit under subsection (7) must be at least equal to the actuarial present value of the pension or benefit calculated

(a) from pensionable age in the case of a member who is not eligible to begin receiving a pension without reduction earlier than pensionable age, or

(b) from an age earlier than pensionable age in the case of a member who is eligible to begin receiving a pension without reduction at that earlier age.

(9) A pension must commence not later than the last day on which a person is allowed to commence receiving a pension from a registered pension plan under the Income Tax Act (Canada).

Payment or transfer of contributions

39  (1) If a person becomes entitled to have returned any contributions made to a pension plan, the payment of the contributions, with interest, must be made within 60 days after the later of

(a) the event giving rise to the payment, or

(b) the completion and filing with the administrator of all documents required to authorize the making of the payment, including evidence required under section 65.

(2) Despite anything in this Act, an entitlement under this Act to have contributions, with interest, paid to a person or transferred from the plan applies only in relation to contributions, with interest, that have not previously been paid out of or transferred from the plan.

Permitted variations in benefits

40  (1) A pension plan must allow for payment to a former member, or to the surviving spouse of a deceased member or former member, of an amount equal to the commuted value of the pension to which the former member or surviving spouse is entitled if

(a) the monthly pension payments that would be payable to the former member or surviving spouse at or after pensionable age are less than the prescribed amount, or

(b) the commuted value does not exceed the prescribed amount.

(2) If a member or former member, or the surviving spouse of a deceased member or former member, has a physical disability that is likely to considerably shorten the person's life expectancy, a pension plan, or an RRSP holding money transferred from a plan, may provide that the person may, before payment of the pension begins, elect to convert the pension or part of the pension on the prescribed basis to a payment or series of payments for a set term.

(3) The degree of physical disability required by subsection (2) must be certified by a medical practitioner.

Funding and solvency requirements

41  (1) This section applies only to pension plans that contain defined benefit provisions.

(1.1) An employer must make contributions to a pension plan that are sufficient to pay for all the benefits in accordance with the prescribed solvency tests.

(1.2) An employer may, as prescribed, take a contribution holiday if the pension plan has surplus assets and provides for a contribution holiday.

(2) In accordance with the prescribed tests for the solvency of pension plans and any other provisions of the regulations, a pension plan must provide for funding that is adequate to provide for payment of all benefits.

(3) The plan must be funded in accordance with the actuarial valuation reports referred to in section 9 (3) (b), as amended by any direction of the superintendent under section 9 (4).

(4) A participating employer's liability for funding the benefits of a negotiated cost plan is limited to the amount that the employer is contractually required to contribute to the plan.

Fund holders

42  (1) The pension fund of a pension plan must be held by

(a) an insurance company under a contract for insurance,

(b) a trust in Canada governed by a written trust agreement under which the trustees are

(i)  a trust company, as defined in the Financial Institutions Act, carrying on business in Canada,

(i.1)  an extraprovincial trust corporation, as defined in the Financial Institutions Act, carrying on activities in British Columbia, or

(ii)  3 or more individuals

(A)  at least 3 of whom reside in Canada, and

(B)  at least one who is not a significant shareholder, partner or employee of the employer or a proprietor of the business of the employer,

(b.1) the British Columbia Pension Corporation established under the Public Sector Pension Plans Act,

(c) a society established under the Pension Fund Societies Act (Canada),

(d) a person under the Government Annuities Act (Canada), or

(e) a combination of the persons referred to in 2 or more of paragraphs (a) to (d).

(2) In subsection (1) (b) (ii) (B), "significant shareholder" means, for an employer that is a corporation, an individual who, alone or in combination with a parent, brother, sister, spouse or child, owns or has a beneficial interest, directly or indirectly, in shares that represent 10% or more of the voting entitlement attached to all the shares of the employer.

(3) If the pension fund of a plan is to be held by an insurance company under individual contracts for insurance for each member, those contracts must

(a) be held on the terms of an express trust whose trustees are or include a trust company referred to in subsection (1) (b) (i) or at least 2 individual trustees, and

(b) be issued or assigned to the trustees.

(4) The trustees are entitled to deal fully with all the contracts, including the assignment or transfer of each contract to the applicable member

(a) on the termination of the membership,

(b) on the termination of the plan, or

(c) on pension commencement.

(5) This section does not apply to a public sector pension plan.

Remitting of contributions

43  (1) and (2) [Repealed 1999-41-30.]

(3) An employer must, within the prescribed period, remit employer and member contributions due to the pension plan, as follows:

(a) in the case of a multi-employer plan, to the administrator;

(b) in the case of a plan other than a multi-employer plan, to the fund holder.

(4) If the administrator of a multi-employer plan is not the fund holder, the administrator must, on receipt of the contributions, promptly remit them to the fund holder.

(5) If, 60 days following the period allowed by subsection (3) for remitting contributions, an employer has still failed to remit the contributions, the administrator or the fund holder who should have received the contributions must notify the superintendent, in writing and within 30 days, respecting the failure of the employer to remit, whether or not the contributions were subsequently remitted.

(6) Subsection (5) does not apply to a pension plan administered by a board of trustees.

Deemed trust

43.1  (1) An employer must, with respect to a pension plan to which the employer is required to make contributions, keep separate and apart from the employer's own assets

(a) all contributions that are due or owing to the pension plan by the employer,

(b) all amounts that have been deducted by the employer from a member's remuneration and not yet remitted to the fund holder, and

(c) all contributions that have been received by the employer with respect to a member and not yet remitted to the fund holder.

(2) The amounts referred to in subsection (1) are deemed to be held in trust for members of the pension plan, former members, and any other persons entitled to pension benefits, refunds or other payments under the plan in accordance with their interests under the plan.

(3) If there is, in respect of an employer, a proceeding

(a) under the Companies Creditors Arrangement Act (Canada),

(b) under the Winding-up and Restructuring Act (Canada) or similar provincial legislation,

(c) in relation to liquidation, receivership or secured creditor enforcement, or

(d) in relation to insolvency other than under the Bankruptcy and Insolvency Act (Canada),

an amount equal to the amounts deemed to be held in trust under subsection (2) is deemed to be separate and apart and form no part of the estate of the employer, whether or not that amount has in fact been kept separate and apart from the employer's own assets or from the assets of the estate.

Investment requirements

44  (1) Pension plan investments, loans and other pension plan financial decisions must be made in accordance with this Act and the regulations and in the best financial interests of plan members, former members and other plan beneficiaries.

(2) Pension plan assets must be invested in a manner that a reasonable and prudent person would apply in respect of a portfolio of investments made on behalf of another person to whom there is owed a fiduciary duty to make investments without undue risk of loss and with a reasonable expectation of a return on the investments commensurate with the risk.

(3) Pension plan assets must be held and invested in the name of the plan, or in the name of a custodian or trustee in accordance with a custodial agreement, trust agreement or statute that clearly indicates that the investments are held for the benefit of the plan.

(4) A plan may provide that investment decisions may be made by a member respecting

(a) contributions made by the employer or the member to a defined contribution plan,

(b) the member's optional ancillary contributions, and

(c) the member's additional voluntary contributions.

(5) A pension plan that allows for optional ancillary contributions must specify how those contributions will be invested.

Benefits and assets on winding up

45  (1) Subject to section 41, a pension plan containing a defined benefit provision must, on the prescribed basis or on another basis that the superintendent considers reasonable and equitable in the circumstances and consents to, in writing, provide for

(a) the reduction of benefits, and

(b) the methods of allocation and distribution of the assets of the plan and the priorities for determining the benefits of persons entitled to the assets,

when the assets of the plan are not sufficient to pay all benefits on the winding up of the plan.

(2) A pension plan must provide for the allocation of any surplus assets on the winding up of the plan

(a) to the members and former members and their spouses, designated beneficiaries and estates,

(b) to the employer, or

(c) to any combination of the persons referred to in paragraph (a) or paragraphs (a) and (b).

Participating employer's withdrawal from multi-employer plan

46  A multi-employer plan must specify the consequences of a participating employer's withdrawal from the plan in respect of the funding and vesting of benefits for members and former members affected by the withdrawal.

Fiscal year of plan

47  (1) Unless otherwise provided in a pension plan, the fiscal year of a plan is from January 1 to December 31 in each year.

(2) The fiscal year of a plan must not be longer than 12 months without the written consent of the superintendent.

Part 4 — Termination, Winding Up and Disposal of Business

Events constituting termination

48  (1) The refusal of the superintendent to register a pension plan or the cancellation of the registration of a pension plan constitutes a termination of the whole of the plan.

(2) Subject to this section, the suspension or cessation of employer contributions to a pension plan or the suspension or cessation of the crediting of benefits constitutes

(a) a termination of the part of the plan that is applicable to a specific and identifiable class or group of members if the suspension or cessation affects only that class or group, or

(b) a termination of the whole of the plan if the suspension or cessation affects all members.

(2.1) Subsection (2) (b) does not apply if

(a) the plan has only former members,

(b) the sponsoring employer continues, or intends to continue, in operation, and

(c) the superintendent, on application from the sponsoring employer, approves the continuation of the plan.

(3) For the purposes of subsection (2), an employer is deemed to have ceased making employer contributions, without limitation as to other circumstances, if

(a) the employer fails to remit the contributions within the period referred to in section 43 (3), and

(b) the superintendent considers that the employer does not intend to make the contributions and notifies the employer, in writing, of that fact.

(4) The deemed cessation is effective from the last date in respect of which the superintendent considers that the employer made contributions, and the superintendent must specify that date in the notice under subsection (3) (b).

(5) Subsection (2) does not apply to the extent that the plan permits a contribution holiday for the employer if the plan has surplus assets.

(6) The cessation or suspension of contributions by a participating employer to a multi-employer plan does not in itself constitute a termination of the part of the plan that relates to that employer and the employees of that employer unless

(a) [Repealed 1999-41-34.]

(b) the plan provides that the cessation or suspension of contributions terminates that part of the plan,

but the plan must not make any provision to the extent that the provision would conflict with subsection (7).

(7) If all members of a plan, or a specific and identifiable class or group of the members of the plan, become members of another plan, on the adoption of that other plan

(a) the years of continuous plan membership under the original plan count as years of continuous plan membership under the other plan, and

(b) the original plan, or the part of the plan that affects that class or group, must not be treated as terminated for the purposes of this section.

(8) A termination under subsection (1) takes effect when

(a) the remedies under sections 20 and 21 have been exhausted, or

(b) the time limit for making an objection under section 20 or appealing under section 21 has expired without the objection or appeal having been made.

Superintendent's authority to declare termination of plan

49  (1) If an employer has discontinued or is in the process of discontinuing all or an identifiable part of the employer's business operations, the superintendent may declare the plan to be terminated as of the date determined by the superintendent.

(2) If the superintendent declares a plan to be terminated under subsection (1), sections 20 and 21 apply in respect of that declaration as if the superintendent were cancelling a registration.

(3) The superintendent may revoke an approval given under section 48 (2.1) (c) if the superintendent considers that there has been a change in the circumstances that were relevant at the date the approval was given.

Notification of termination or winding up

50  (1) An administrator who intends to terminate or wind up a pension plan must give notice of the intention to terminate or wind up, in writing, to the following:

(a) the superintendent;

(b) each member and former member;

(c) each union whose members will be affected;

(d) if a member or former member has died, the surviving spouse, designated beneficiary or personal representative of the estate of the member or former member as ascertainable by the administrator.

(2) The notice required under subsection (1) must

(a) give the effective date of termination or start of the winding up, and

(b) be given

(i)  at least 60 days before the date of the intended termination or start of the winding up, or

(ii)  immediately after the making of that decision if it is intended to terminate or to start to wind up the plan within 60 days after the decision to terminate or wind up is made.

Payments to meet solvency requirements

51  (1) Within 30 days after the termination of a pension plan, the employer must

(a) pay into the plan all amounts for which payment is required by the terms of the plan or this Act, and

(b) without limiting the generality of paragraph (a), make all payments that, by the terms of the plan or this Act,

(i)  are due from the employer to the plan but have not been made at the date of the termination, and

(ii)  have accrued to the date of termination but that are not yet due.

(2) If a pension plan, other than a negotiated cost plan, is terminated with a solvency deficiency and the employer is not insolvent,

(a) the employer must fund the remaining solvency deficiency as prescribed,

(b) the administrator must continue to file information returns and actuarial valuation reports as required by section 9 (3) (a) and (b) until the solvency deficiency has been retired, and

(c) subject to section 55, the assets of the plan must be distributed in the manner and to the extent prescribed.

Effect of termination on assets

52  (1) On the termination of a pension plan, all contributions made after the initial qualification date in respect of a pension, together with interest, gains and losses on those contributions, as determined in accordance with the regulations, must be applied towards the provision of the pension as required by the plan and to the extent that those contributions have not already been applied.

(2) All assets of the plan that were subject to this Act before the termination continue to be subject to this Act after the termination.

Entitlements on partial termination

53  (1) 1f only part of a pension plan is terminated, the entitlements of members and former members affected by the partial termination must not be less than those to which the members and former members would have been entitled had the whole of the plan been terminated on the date of the partial termination.

(2) Subsection (1) does not entitle a person affected by the partial termination of the plan to share in any surplus assets on the partial termination, but the plan may provide for such an entitlement.