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2021, c.41
- An Act to Amend the Pension Benefits Act
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2021, c.41
An Act to Amend the
Pension Benefits Act
Assented to December 17, 2021
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1
Subsection 1(1) of the Pension Benefits Act, chapter P-5.1 of the Acts of New Brunswick, 1987, is amended
(
a
)
by adding the following definition in alphabetical order:
“reserve account”
means a separate account established under subsection 54.1(1) within a pension fund if the pension plan contains a defined benefit provision;
(compte de réserve)
(
b
)
by adding the following definitions in alphabetical order:
“regulation”
means a regulation made under this Act and, unless the context otherwise indicates, includes a rule;
(règlement)
“rule”
means a rule made under subsection 100(1.1) or 100.9(2.1), or if the context requires, a rule made under the
Financial and Consumer Services Commission Act
;
(règle)
2
Subsection 7(3) of the Act is repealed.
3
Section 10 of the Act is amended
(
a
)
by repealing subsection (1) and substituting the following:
10
(1)
The administrator of a pension plan shall, within sixty days after the establishment of the plan, apply to the Superintendent for registration of the pension plan.
(
b
)
in paragraph (4)k) of the French version by striking out “divulgation” and substituting
“communication”
.
4
Subsection 11(2) of the Act is repealed and the following is substituted:
11
(2)
An application for registration under subsection (1) shall be made by paying the prescribed fee and filing with the Superintendent
(
a
)
a completed application in the form provided by the Superintendent,
(
b
)
a certified copy of the amending document,
(
c
)
a certified copy of the restated pension plan, if required by the Superintendent,
(
d
)
certified copies of any other prescribed documents, and
(
e
)
any other prescribed information.
5
The heading
“DIVULGATION DES RENSEIGNEMENTS”
preceding section 23 of the French version of the Act is repealed and the following is substituted:
COMMUNICATION DE RENSEIGNEMENTS
6
Section 25 of the Act is repealed and the following is substituted:
25
(1)
The administrator of a pension plan shall transmit to each member a written statement at the prescribed intervals and containing the prescribed information in respect of the pension plan and of the member’s pension benefits and ancillary benefits.
25
(2)
The administrator of a pension plan shall transmit to each former member a written statement at the prescribed intervals and containing the prescribed information in respect of the pension plan and of the former member’s pension benefits and ancillary benefits.
7
Section 28 of the French version of the Act is amended
(
a
)
in subsection (1) by striking out
“tout renseignement relatif à un régime de pension recueilli par le surintendant, soumis au surintendant ou déposé auprès de lui est confidentiel et ne peut faire l’objet d’une divulgation”
and substituting
“les renseignements relatifs à un régime de pension recueillis par le surintendant, soumis à celui-ci ou déposés auprès de lui sont confidentiels et ne peuvent faire l’objet d’une communication”
;
(
b
)
in subsection (4) by striking out “divulgué” wherever it appears and substituting
“communiqué”
.
8
The Act is amended by adding after section 28 the following:
Disclosure of information by electronic means
28.1
Disclosure of information in writing in accordance with this Part may be made by electronic means if the intended recipient of the information consents.
9
Subsection 29(4) of the Act is amended by striking out “after completing twenty-four months of full-time continuous employment” and substituting
“after completing twenty-four months of full-time continuous employment or any shorter period of full-time continuous employment provided for by the pension plan”
.
10
The Act is amended by adding after section 31 the following:
Right to refrain from membership
31.1
(1)
An employee who is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of a pension plan is not required to become a member of a pension plan.
31.1
(2)
An employee who intends under subsection (1) not to become a member of a pension plan shall complete the form provided by the Superintendent and submit it to the administrator.
11
Section 33 of the Act is amended by adding after subsection (2) the following:
33
(3)
In the case of a pension plan containing a defined benefit provision, an administrator who has made a purchase under subsection (1) is discharged from liability in respect of the defined benefits if the administrator ensures the prescribed requirements are met.
12
The Act is amended by adding after section 53 the following:
Administrative error by employer
53.1
(1)
This section applies if
(
a
)
an employer pays an amount in respect of a pension plan that should have been paid out of the pension fund, or
(
b
)
an employer makes an overpayment of contributions into the pension fund.
53.1
(2)
The administrator of a pension plan may reimburse the employer from the pension fund for a payment or overpayment described in subsection (1) if the administrator obtains the consent of the Superintendent.
53.1
(3)
The administrator may apply for the consent of the Superintendent before the later of
(
a
)
24 months after the date on which the employer makes the payment or overpayment described in subsection (1), and
(
b
)
six months after the date on which the administrator, acting reasonably, becomes aware of the payment or overpayment described in subsection (1).
53.1
(4)
The Superintendent may consent to the payment from the pension fund to the employer if the application is made before the time described in subsection (3).
13
The Act is amended by adding after section 54 the following:
RESERVE ACCOUNT
Reserve account
54.1
(1)
If a pension plan contains a defined benefit provision, the administrator may establish a reserve account for the defined benefit portion of the plan.
54.1
(2)
Contributions to a reserve account are limited to the following:
(
a
)
payments made in respect of a solvency deficiency; and
(
b
)
prescribed contributions.
54.1
(3)
Despite subsection (2), assets shall not be transferred from an account in a pension fund to the reserve account.
Withdrawal of balance from a reserve account
54.2
(1)
In this section, “surplus” means surplus as defined in subsection 59(1).
54.2
(2)
This section applies to a pension plan
(
a
)
that is being wound up, in whole, and has a surplus on wind-up, and
(
b
)
whose administrator has established a reserve account for the defined benefit portion.
54.2
(3)
The balance shall not be withdrawn from the reserve account until all benefits and payments that members, former members and other persons are entitled to on full wind-up of the pension plan have been paid or made.
54.2
(4)
Despite the provisions of a pension plan and after all of the benefits and payments referred to in subsection (3) have been paid or made, the administrator may withdraw the balance in the reserve account if all of the following conditions are met:
(
a
)
the administrator has made an application to the Superintendent for consent to the withdrawal;
(
b
)
the existence and amount of the surplus have been established in the wind-up report;
(
c
)
the administrator has provided the Superintendent with any information or records that the Superintendent requires to assess the application; and
(
d
)
the Superintendent has consented, in writing, to the withdrawal and the consent has not been revoked.
54.2
(5)
An application referred to in paragraph (4)(a) shall be made in writing and shall contain the following information:
(
a
)
confirmation that all benefits and payments required to be paid or made under subsection (3) have been paid or made;
(
b
)
the balance of the reserve account; and
(
c
)
any additional information or records required by the Superintendent to make the Superintendent’s decision.
54.2
(6)
If the Superintendent is of the opinion that it is appropriate to do so, the Superintendent may revoke the Superintendent’s consent and direct the administrator to cease making withdrawals from the reserve account.
14
Section 56 of the Act is amended
(
a
)
by adding after subsection (4) the following:
56
(4.1)
A pension plan may provide for shorter qualification periods for entitlement to a deferred pension than those set out in subsections 35(2) and (2.1).
56
(4.2)
A pension plan that provides for qualification periods for a deferred pension that are shorter than the periods set out in subsections 35(2) and (2.1) may permit a member to withdraw the member’s own contributions with interest made in respect of employment before or after the commencement of this subsection if the member terminates employment after becoming entitled to a deferred pension under the pension plan before the completion of the qualification period referred to in subsection 35(2) or (2.1).
(
b
)
in subsection (5) in the portion preceding paragraph (a) by striking out “subsection (2), (3) or (4)” and substituting
“subsection (2), (3), (4) or (4.2)”
.
15
Section 59 of the Act is amended by adding after subsection (7) the following:
59
(8)
This section does not apply to funds in a reserve account.
16
Section 67 of the Act is amended by adding after subsection (2) the following:
67
(2.1)
Subsections (1) and (2) do not apply to funds in a reserve account.
17
The heading “REGULATIONS” following section 99.992 of the Act is repealed and the following is substituted:
REGULATIONS AND RULES
18
The Act is amended by adding before section 100 of the Act the following:
Definition of “Commission”
99.993
In sections 100 to 100.03, “Commission” means the Financial and Consumer Services Commission.
19
The heading “Regulations” preceding section 100 of the Act is repealed and the following is substituted:
Regulations and rules
20
Section 100 of the Act is amended
(
a
)
in subsection (1)
(i
)
in paragraph (b) by striking out “this Act and the regulations” and substituting
“this Act, the regulations or the rules”
;
(ii
)
in paragraph c) of the French version by striking out “exiger” and substituting
“exigeant”
;
(iii
)
in paragraph (g) by striking out “Financial and Consumer Services Commission” and substituting
“Commission”
;
(iv
)
in paragraph (h) by striking out “this Act and the regulations” and substituting
“this Act, the regulations or the rules”
;
(v
)
in paragraph (q) by striking out “respecting” and substituting
“for the purposes of section 59, respecting”
;
(vi
)
in paragraph (w.1) by striking out “this Act, the regulations or both” and substituting
“this Act, the regulations or the rules”
;
(vii
)
in paragraph (x) by striking out “this Act or the regulations or of any provision of this Act or the regulations.” and substituting
“this Act, the regulations or the rules or any provision of this Act, the regulations or the rules;”
;
(
b
)
by adding after subsection (1) the following:
100
(1.1)
The Commission may make a rule in respect of any matter in respect of which the Lieutenant-Governor in Council has authority to make a regulation under paragraphs (1)(b) to (i), (l), (m), (q), (t) to (t.1), (t.3), (u) and (w.1).
(
c
)
by repealing subsection (2) and substituting the following:
100
(2)
A regulation or rule may be general or particular in its application and may be limited as to time or place or both.
(
d
)
in subsection (3) by striking out “A regulation may adopt by reference, in whole or in part, with such changes as the Lieutenant-Governor in Council considers necessary,” and substituting
“A regulation or rule may adopt by reference, in whole or in part, with such changes as the Lieutenant-Governor in Council or the Commission, as the case may be, considers necessary,”
;
(
e
)
by adding after subsection (4) the following:
100
(5)
The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.
100
(6)
Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.
100
(7)
A regulation made under subsection (6) is not effective before the rule referred to in that subsection comes into force.
100
(8)
Subject to subsection (7), a regulation made under subsection (6) may be retroactive in its operation.
100
(9)
The
Regulations Act
does not apply to the rules made under this Act.
100
(10)
If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.
21
The Act is amended by adding after section 100 the following:
Publication of rules and notice
100.01
(1)
As soon as the circumstances permit after a rule is made under section 100, the Commission shall
(
a
)
publish the rule electronically, and
(
b
)
publish in
The Royal Gazette
notice of the rule in accordance with the regulations made under the
Financial and Consumer Services Commission Act
.
100.01
(2)
Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.
100.01
(3)
When notice of a rule has been published in
The Royal Gazette
in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).
Changes to rules
100.02
The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 100.01(1)(a).
Consolidated rules
100.03
(1)
The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.
100.03
(2)
In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.
100.03
(3)
The Commission may publish the consolidated rules in the frequency that it considers appropriate.
100.03
(4)
A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.
100.03
(5)
In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.
22
The heading “Regulations” preceding section 100.9 of the Act is repealed and the following is substituted:
Regulations and rules
23
Section 100.9 of the Act is amended
(
a
)
in subsection (1) by striking out “Subsection 100(1) applies” and substituting
“Subsections 100(1) and (1.1) apply”
;
(
b
)
by adding after subsection (2) the following:
100.9
(2.1)
The Financial and Consumer Services Commission may make a rule in respect of any matter in respect of which the Lieutenant-Governor in Council has authority to make a regulation under paragraphs (2)(h) and (r).
100.9
(2.2)
Subsections 100(5) to (10) and sections 100.01 to 100.03 apply with the necessary modifications for the purposes of this section.
(
c
)
in subsection (3) by striking out “Regulations” and substituting
“Regulations or rules”
;
(
d
)
in subsection (4) by striking out “A regulation” and substituting
“A regulation or rule”
.
24
Schedule A of the Act is amended
(
a
)
by striking out
25
and substituting
25(1)
25(2)
(
b
)
by striking out
49(7)
and substituting
49(7)
54.1(3)
54.2(3)
25
Paragraph 1(a), sections 6, 11, 13, 15 and 16 and paragraphs 24(a) and (b) of this Act come into force on a day or days to fixed by proclamation.
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