Acts and Regulations

2023, c.42 - Pension Plan Sustainability and Transfer Act

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Current to 1 January 2024
CHAPTER 2023, c.42
Pension Plan Sustainability and Transfer Act
Assented to December 13, 2023
His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
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DEFINITIONS, PURPOSE AND APPLICATION
Definitions
1The following definitions apply in this Act.
“authority” means the person appointed to serve as the Sustainable Pension Plan Authority under Part 5.(autorité)
“base benefit” means base benefit as defined in section 100.2 of the Pension Benefits Act.(prestation de base)
“Board” means the Labour and Employment Board established under the Labour and Employment Board Act.(Commission)
“common-law partner” means common-law partner as defined in the Pension Benefits Act.(conjoint de fait)
“employee” means employee as defined in the Pension Benefits Act.(salarié)
“escalated adjustment” means escalated adjustment as defined in New Brunswick Regulation 91-195 under the Pension Benefits Act.(rajustement actualisé)
“employer” means employer as defined in the Pension Benefits Act.(employeur)
“memorandum of understanding” means a memorandum of understanding referred to in Part 2.(protocole d’entente)
“Minister” means the Minister of Finance and Treasury Board and includes any person designated by the Minister to act of the Minister’s behalf.(ministre)
“personal information” means personal information as defined in the Right to Information and Protection of Privacy Act.(renseignements personnels)
“Public Service” means Public Service as defined in the Public Service Labour Relations Act.(services publics)
“receiving plan” means a shared risk plan referred to in paragraph 7(b).(régime cessionnaire)
“spouse” means spouse as defined in the Pension Benefits Act.(conjoint)
“Superintendent” means the Superintendent of Pensions appointed under the Financial and Consumer Services Commission Act and includes persons to whom the Superintendent or the Financial and Consumer Services Commission has delegated powers and duties under that Act or the Pension Benefits Act.(surintendant)
“transfer” means transfer within the meaning of paragraph 2(d).(transfert)
“transfer agreement” means a transfer agreement referred to in Part 3.(accord de transfert)
“transferring plan” means a pension plan referred to in paragraph 7(a).(régime cédant)
“Tribunal” means Tribunal as defined in the Financial and Consumer Services Commission Act.(Tribunal)
Purpose of Act
2The purpose of this Act is, in relation to the pension plans prescribed by regulation,
(a) to improve the sustainability of pension benefits for the benefit of their beneficiaries,
(b) to provide for the regulation of their pension benefits within the prudential framework established under Part 2 of the Pension Benefits Act,
(c) to provide for pension plan arrangements that are consistent with pension plan arrangements offered in the Public Service, and
(d) to provide for the transfer of their assets and liabilities to shared risk plans registered under the Pension Benefits Act.
Application
3This Act applies to any pension plan prescribed by regulation.
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MEMORANDUM OF UNDERSTANDING
Parties to the negotiation of a memorandum of understanding
4The parties to the negotiation of a memorandum of understanding shall be prescribed by regulation.
Memorandum of understanding
5(1)Subject to subsection (2), a memorandum of understanding is intended to allow the parties to negotiate the following matters related to a transfer:
(a) transition funding;
(b) the treatment of accrued pension benefits;
(c) the selection of the intended receiving plan; and
(d) any other matter that the parties or, if applicable, the authority, considers appropriate.
5(2)A memorandum of understanding shall comply with the provisions of this Act.
5(3)For greater certainty, a memorandum of understanding is not a pension plan or an amendment to a pension plan.
Negotiation process
6(1)The parties referred to in section 4 shall endeavour to negotiate and enter into a memorandum of understanding by the date or within the period prescribed by regulation, as the case may be.
6(2)As soon as a memorandum of understanding has been entered into, the parties shall notify the Minister.
6(3)If a dispute arises with respect to one or more matters related to the memorandum of understanding, one of the parties may give notice to the Minister in accordance with subsections 14(1) and (2), who shall refer those matters to the authority.
6(4)If the Minister is not notified that the parties have entered into a memorandum of understanding by the time limit referred to in subsection (1), the Minister shall refer all the matters to the authority in accordance with subsections 14(2) and (4).
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TRANSFER AGREEMENT
Parties to the negotiation of a transfer agreement
7The parties to the negotiation of a transfer agreement shall be
(a) the administrator of a pension plan prescribed by regulation, and
(b) the administrator of a shared risk plan registered under the Pension Benefits Act.
Transfer agreement
8(1)Subject to subsection (3), a transfer agreement shall authorize a transfer, establish its terms and conditions and provide for
(a) the designation of an employer participating in the transferring plan as an employer participating in the receiving plan,
(b) any modifications to the application of the receiving plan to the members of the transferring plan to the extent necessary to give effect to the transfer, including
(i) members who have accrued pensionable service under both the transferring plan and the receiving plan before the transfer date, and
(ii) spouses, common-law partners and any other beneficiaries of members of the transferring plan,
(c) the transfer date, and
(d) the inclusion of the terms and conditions set out in the transfer agreement and this Act in the terms and conditions of the receiving plan.
8(2)Subject to subsection (3), a transfer agreement may, for the purposes of the receiving plan, provide for
(a) the determination of the pensionable service and eligible service accrued by a member of the transferring plan in relation to the member’s employment with the employer participating in the transferring plan before the transfer date,
(b) the imposition of obligations and liabilities on the employer participating in the transferring plan in the capacity as the employer or former employer of members of a transferring plan, as the case may be, before and after the transfer date,
(c) the requirement for the employer participating in the transferring plan, the non-retired members of the transferring plan and the employees who are eligible to be members of the transferring plan who are hired by the employer participating in the transferring plan on or after the transfer date to make payments to the receiving plan in addition to those payments required to be made by members of the receiving plan or employers participating in the receiving plan, and
(d) any other matter the parties or, if applicable, the authority, considers necessary or advisable to effectively carry out the transfer.
8(3)The transfer agreement shall comply with the provisions of this Act.
8(4)For greater certainty, a transfer agreement is not a pension plan or an amendment to a pension plan.
8(5)For the purpose of this section, the date referred to in paragraph (1)(c) shall be deemed to be the conversion date within the meaning of Part 2 of the Pension Benefits Act.
Negotiation process
9(1)The parties referred to in section 7 shall endeavour to negotiate and enter into a transfer agreement by the date or within the period prescribed by regulation, as the case may be.
9(2)For the purposes of subsection (1), if no administrator of a shared risk plan registered under the Pension Benefits Act agrees to be the administrator of the receiving plan, the Minister may designate an administrator.
9(3)As soon as a transfer agreement has been entered into, the parties shall notify the Minister.
9(4)If a dispute arises with respect to one or more matters related to the transfer agreement, one of the parties may give notice to the Minister, in accordance with subsections 14(1) and (2), who shall refer those matters to the authority.
9(5)If the Minister is not notified that the parties have entered into a transfer agreement by the time limit referred to in subsection (1), the Minister shall refer all the matters to the authority in accordance with subsections 14(2) and (4).
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TRANSFER
Transfer of benefits
10On the transfer date specified in a transfer agreement, the accrued pension benefits under the transferring plan are transferred to the receiving plan and are converted to base benefits provided by the receiving plan.
Effect of transfer
11(1)On a transfer under section 10, the amount of the following pension benefits shall be determined and payable in accordance with the terms and limitations specified in the receiving plan:
(a) the pension benefits to which a member of the transferring plan will be entitled on retirement; and
(b) the pension benefits to which a surviving spouse or surviving common-law partner, as the case may be, will be entitled on the death of a member of the transferring plan.
11(2)On a transfer under section 10,
(a) every retired member who was receiving pension benefits under the transferring plan immediately before the transfer date shall be deemed to be a retired member within the meaning of the receiving plan,
(b) the spouse or common-law partner, as the case may be, of a person who was receiving pension benefits under the transferring plan immediately before the transfer date shall be deemed to be a spouse or common-law partner of a retired member within the meaning of the receiving plan,
(c) the spouse, common-law partner or any other beneficiary who was receiving pension benefits under the transferring plan immediately before the transfer date shall continue to receive benefits under the receiving plan,
(d) despite Part 2 of the Pension Benefits Act, the amount and form of pension benefits payable to a person referred to in paragraph (a) shall be determined in accordance with the transferring plan as it read immediately before the transfer date and the amount is payable in accordance with the terms and limitations applicable to the transferring plan, subject to later adjustments made in accordance with the receiving plan and Part 2 of the Pension Benefits Act,
(e) the amount of pension benefits payable to a spouse or common-law partner referred to in paragraph (b) or (c) or to another beneficiary referred to in paragraph (c) shall be determined in accordance with the transferring plan as it read immediately before the transfer date and is payable in accordance with the terms and limitations applicable to the transferring plan, subject to later adjustments made in accordance with the receiving plan and Part 2 of the Pension Benefits Act, and
(f) the amount of pension benefits payable to a person referred to in paragraph (a), to a spouse or common-law partner referred to in paragraph (b) or (c) or to another beneficiary referred to in paragraph (c) shall be eligible for escalated adjustments in accordance with the receiving plan and Part 2 of the Pension Benefits Act and not in accordance with the transferring plan.
11(3)Subject to the terms of the transfer agreement, on a transfer under section 10,
(a) the administrator of the transferring plan has no further obligations or liabilities in respect of that plan,
(b) the employer participating in the transferring plan has no further obligations or liabilities in respect of that plan, and
(c) a member of the transferring plan and the member’s spouse, common-law partner or other beneficiary, as the case may be, have recourse solely to the receiving plan for any benefit or other payment under the transferring plan or the receiving plan.
11(4)On a transfer under section 10, the administrator of the receiving plan may bring or maintain in its name any action or other proceeding or exercise any power, right or remedy that the administrator of the transferring plan was, could have been or could have become entitled to bring, maintain or exercise before the transfer date.
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SUSTAINABLE PENSION PLAN AUTHORITY
Appointment of authority
12(1)The Lieutenant-Governor in Council may appoint a person to serve as the Sustainable Pension Plan Authority for one or more transfers who is independent of the parties to a memorandum of understanding or transfer agreement, as the case may be.
12(2)The mandate of the authority is to resolve disputes in respect of a transfer, and the authority may act as a mediator and, if applicable, as an arbitrator.
12(3)The appointment of a person as the authority ends on the transfer date.
12(4)For greater certainty, if a person is appointed as the authority for more than one transfer, the person’s appointment ends on the last transfer date.
12(5)The authority is entitled to
(a) the remuneration determined by the Minister, and
(b) the reimbursement of travel and other expenses incurred in the exercise of the duties of the authority as determined by the Minister.
12(6)The Lieutenant-Governor in Council may only revoke the appointment of a person as the authority for cause.
Powers
13(1)The authority may make additional rules consistent with this Act respecting the procedure for giving notices of meetings or hearings, making representations and the conduct of meetings and hearings under this Part.
13(2)The authority is not bound by the rules of evidence that apply to a court proceeding.
13(3)The authority may not
(a) disregard any provision of this Act, the Pension Benefits Act or, subject to subsection (4), the receiving plan,
(b) decide on the constitutionality or validity of a legislative provision, or
(c) determine whether a right conferred, recognized, affirmed or otherwise guaranteed by the Canadian Charter of Rights and Freedoms has been infringed.
13(4)The authority may disregard requirements in the receiving plan related to members’ participation and eligibility as they relate to members of the transferring plan.
Dispute resolution process – mediation
14(1)If, under subsection 6(3) or 9(4), as the case may be, a party to a memorandum of understanding or transfer agreement gives notice of a dispute to the Minister, the party shall give the other parties a copy.
14(2)A notice referred to in subsection (1) shall contain the following information:
(a) the pension plans that are subject to the dispute and the parties to the dispute;
(b) a statement of the current status of the discussions, the matters that have been resolved and the matters remaining to be resolved; and
(c) the outcome sought by the party giving the notice.
14(3)On receiving a notice referred to in subsection (1), the Minister shall forward it to the authority.
14(4)If the Minister refers matters to the authority under subsection 6(4) or 9(5), the Minister shall provide the authority and the parties with the information referred to in paragraphs (2)(a) and (b).
14(5)On receiving a notice referred to in subsection (1) or information referred to in paragraphs (2)(a) and (b), the authority shall arrange for a meeting to be held with the parties within 30 days after receiving the notice or information.
14(6)Within 90 days after receiving a notice referred to in subsection (1) or information referred to in paragraphs (2)(a) and (b), the authority shall facilitate and carry out a mediation between the parties.
14(7)A mediation is terminated when
(a) the parties have settled all the matters to be resolved,
(b) the time limit referred to in subsection (6) has elapsed and the parties have not entered into a memorandum of understanding or transfer agreement, or
(c) the authority determines that, in the circumstances, the mediation should terminate before the time limit referred to in subsection (6) has elapsed.
14(8)If the parties are able to settle all the matters to be resolved, the settlement agreement shall be in writing and shall be final and binding on the parties.
Dispute resolution process – arbitration
15(1)If the parties are not able to settle all the matters to be resolved in a mediation under section 14, the authority may, at the authority’s discretion, proceed directly to arbitration or postpone the arbitration and arrange for a preliminary meeting to be held with the parties within 30 days after the termination of the mediation to
(a) determine the matters that have been resolved and the matters remaining to be resolved,
(b) set the length, dates and locations of hearings, and
(c) deal with any other matter that the authority considers appropriate.
15(2)The authority shall give the parties an opportunity to present evidence and to make representations and shall decide the matters in question in accordance with and subject to the provisions of this Act.
15(3)The authority shall issue a decision with written reasons within 120 days after the authority receives a notice referred to in subsection 14(1) or information referred to in paragraphs 14(2)(a) and (b) and shall provide the decision to the Minister and the parties.
15(4)A decision of the authority issued under this section shall be final and binding on the parties.
Extension of time limits
16(1)Subject to subsection (2), the authority may extend the time limits set out in sections 14 and 15 if the authority considers it to be necessary.
16(2)If a mediation is not completed within the limit set out in subsection 14(6) or an arbitration is not completed within the limit set out in subsection 15(3), the authority may extend the time limit for successive periods of up to 60 days and is required to notify the Minister of each extension.
Non-compliance of a party
17(1)If a party fails to comply with any requirement of the dispute resolution process under this Part without a reasonable excuse, the authority may issue a compliance order and the party shall comply with the order within seven days after being served with the order.
17(2)If the party fails to comply with a compliance order within the time limit in subsection (1), the authority may
(a) in the case of a dispute in respect of a memorandum of understanding, issue a final decision in the party’s absence, or
(b) in the case of a dispute in respect of a transfer agreement,
(i) issue a final decision in the party’s absence if the authority considers that there is sufficient information to issue a decision with reasons, or
(ii) make a recommendation to the Minister to appoint a replacement for the party that is not in compliance if the authority considers that there is insufficient information to issue a decision with reasons.
17(3)If the authority acts under paragraph (2)(a), the authority shall set all the terms and conditions of the memorandum of understanding and it shall be deemed to have been entered into and signed by the parties referred to in section 4.
17(4)If the authority acts under subparagraph (2)(b)(i), the authority shall set all the terms and conditions of the transfer agreement and it shall be deemed to have been entered into and signed by the parties referred to in section 7.
17(5)If the Minister replaces a party on the recommendation of the authority under subparagraph (2)(b)(ii), the replacement may act for the party and may enter into and sign the transfer agreement for the party.
Costs
18The parties to a dispute resolution process shall bear their own legal costs and disbursements related to the process.
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MISCELLANEOUS
Personal information
19If the administrator of a transferring plan and the administrator of a receiving plan have entered into a transfer agreement or are contemplating entering into a transfer agreement,
(a) the employer participating in the transferring plan and the administrator of that transferring plan may disclose the following personal information to the administrator of the receiving plan:
(i) personal information collected up to the transfer date respecting members of the transferring plan and their surviving spouses, surviving common-law partners or other surviving beneficiaries, as the case may be;
(ii) personal information collected on and after the transfer date respecting members of the transferring plan and their surviving spouses, surviving common-law partners or other surviving beneficiaries, as the case may be;
(iii) personal information collected respecting employees hired on or after the transfer date and their surviving spouses or surviving common-law partners,
(b) the administrator of the receiving plan may collect and use the personal information referred to in paragraph (a),
(c) any personal information referred to in paragraph (a) that was collected, used or disclosed for the purpose entering into a transfer agreement before the commencement of this Act shall be deemed to have been validly collected, used or disclosed in accordance with this Act.
Conflict
20Despite section 5 and subsection 6(1) of the Pension Benefits Act and section 3 of the Nursing Homes Pension Plans Act, if a provision of this Act or the regulations under this Act conflicts with or is inconsistent with a provision of those Acts, the Right to Information and Protection of Privacy Act, the Industrial Relations Act or a regulation under any of those acts or with a contract, agreement, plan, order or representation respecting a transferring plan, the provisions of this Act and the regulations under this Act prevail to the extent of the conflict or inconsistency.
Immunity
21(1)No action or other proceeding lies or shall be instituted against any of the following persons for anything done or purported to be done in good faith by any of them or in relation to anything omitted in good faith by any of them in the exercise or intended exercise of a power or duty under this Act or the regulations under this Act:
(a) the Crown in right of the Province;
(b) the Minister;
(c) the authority;
(d) the parties to a memorandum of understanding and their agents, advisors and representatives;
(e) the parties to a transfer agreement and their agents, advisors and representatives; and
(f) a person who replaces a party to a transfer agreement under subsection 17(5) and their agents, advisors and representatives.
21(2)No action or other proceeding lies or shall be instituted against the administrator of a transferring plan, their agents, advisors and representatives for anything done or purported to be done in good faith by any of them or in relation to anything omitted in good faith by any of them in relation to the transferring plan before the transfer date referred to in section 10.
Administration
22The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.
Regulations
23(1)The Lieutenant-Governor in Council may make regulations
(a) prescribing pension plans for the purposes of section 3;
(b) prescribing the parties to the negotiation of a memorandum of understanding for the purposes of section 4;
(c) prescribing a date or period within which parties shall negotiate and enter into a memorandum of understanding for the purposes of subsection 6(1);
(d) prescribing pension plans for the purposes of paragraph 7(a);
(e) prescribing a date or period within which parties shall negotiate and enter into a transfer agreement for the purposes of subsection 9(1);
(f) defining words and expressions used but not defined in this Act for the purposes of this Act, the regulations or both.
23(2)A regulation made under paragraph (1) may be made retroactive to any date, including a date before the commencement of this subsection.
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TRANSITIONAL PROVISIONS, REPEALS AND COMMENCEMENT
Orders and other decisions
24The following orders and decisions are null and void and are of no force or effect:
(a) the order of the Superintendent dated January 30, 2023, in respect of the Pension Plan for General and Service Employees of New Brunswick Nursing Homes, established effective April 1, 1982, and registered with the Superintendent as NB.0447938, as amended;
(b) any order made by the Tribunal or the Board in respect of the order of the Superintendent referred to in paragraph (a); and
(c) any decision of an arbitrator or arbitration board appointed or established in accordance with a collective agreement or an act other than this Act for the purpose of arbitrating a dispute with respect to a transferring plan between an employer participating in the transferring plan and the bargaining agent for the employees participating in that plan.
Application of the Nursing Homes Pension Plans Act and the regulation under the Act
25If the provisions of the Nursing Homes Pension Plans Act and of New Brunswick Regulation 2010-109 under that Act apply to a transferring plan, they cease to apply to the transferring plan on and after the transfer date specified in the relevant transfer agreement.
Repeal of the Nursing Homes Pension Plans Act
26The Nursing Home Pension Plans Act, chapter N-12 of the Acts of New Brunswick, 2008, is repealed.
Repeal of regulation under the Nursing Homes Pension Plans Act
27New Brunswick Regulation 2010-109 under the Nursing Homes Pension Plans Act is repealed.
Commencement
28Sections 26 and 27 of this Act come into force on a day or days to be fixed by proclamation.
N.B. This Act is consolidated to December 13, 2023.