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Wage Earner Protection Program Act (S.C. 2005, c. 47, s. 1)

Act current to 2022-11-16 and last amended on 2021-11-20. Previous Versions

Wage Earner Protection Program Act

S.C. 2005, c. 47, s. 1

Assented to 2005-11-25

An Act to establish a program to provide for payments to individuals in respect of wages owed to them by employers who are insolvent

[Enacted by section 1 of chapter 47 of the Statutes of Canada, 2005, in force July 7, 2008, see SI/2008-78.]

Short Title

Marginal note:Short title

 This Act may be cited as the Wage Earner Protection Program Act.

Interpretation

Marginal note:Definitions

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

    Board

    Board means the Canada Industrial Relations Board established by section 9 of the Canada Labour Code. (Conseil)

    eligible wages

    eligible wages means

    • (a) wages other than termination pay and severance pay that were earned during the longer of the following periods:

      • (i) the six-month period ending on the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer,

      • (ii) the period beginning on the day that is six months before one of the following days and ending on the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer:

        • (A) the day on which a proposal is filed by or in respect of the employer under Division I of Part III of the Bankruptcy and Insolvency Act or, if a notice of intention to make a proposal is filed by or in respect of the employer under that Division, the day on which the notice of intention is filed,

        • (B) the day on which the most recent proceedings under the Companies’ Creditors Arrangement Act are commenced, and

      • (iii) the period beginning on the day that is six months before one of the following days and ending on the day on which a court makes a determination under subsection 5(5):

        • (A) the day on which a proposal is filed by or in respect of the employer under Division I of Part III of the Bankruptcy and Insolvency Act or, if a notice of intention to make a proposal is filed by or in respect of the employer under that Division, the day on which the notice of intention is filed,

        • (B) the day on which the most recent proceedings under the Companies’ Creditors Arrangement Act are commenced; and

    • (b) termination pay and severance pay that relate to employment that ended

      • (i) during the period referred to in paragraph (a), or

      • (ii) during the period beginning on the day after the day on which the period referred to in paragraph (a) ends and ending on the day on which the trustee is discharged or the receiver completes their duties, as the case may be. (salaire admissible)

    wages

    wages includes salaries, commissions, compensation for services rendered, vacation pay, termination pay, severance pay and any other amounts prescribed by regulation. (salaire)

  • Marginal note:Precision

    (1.1) For the purpose of the definition eligible wages, a proposal does not include a proposal for which a certificate is given under section 65.3 of the Bankruptcy and Insolvency Act and a notice of intention to make a proposal does not include a notice of intention in respect of a proposal for which such a certificate is given.

  • Marginal note:Meaning of trustee

    (1.2) In this Act, trustee includes a monitor as defined in subsection 2(1) of the Companies’ Creditors Arrangement Act.

  • Marginal note:Employers subject to a receivership

    (2) For the purposes of this Act, an employer is subject to a receivership when any property of the employer is under the possession or control of a receiver.

  • Marginal note:Meaning of receiver

    (3) In this Act, receiver means a receiver within the meaning of subsection 243(2) of the Bankruptcy and Insolvency Act.

  • Marginal note:Words and expressions

    (4) Unless otherwise provided, words and expressions used in this Act have the same meaning as in the Bankruptcy and Insolvency Act.

  • Marginal note:Related persons

    (5) Despite subsection 4(5) of the Bankruptcy and Insolvency Act,

    • (a) for the purposes of paragraph 6(d), an individual is considered to deal at arm’s length with a related person if the Minister is satisfied that, having regard to the circumstances — including the terms and conditions of the individual’s employment with the former employer, their remuneration and the duration, nature and importance of the work performed for the former employer — it is reasonable to conclude that the individual would have entered into a substantially similar contract of employment with the former employer if they had been dealing with each other at arm’s length; and

    • (b) for the purposes of subsection 21(4), individuals who are related to each other are, in the absence of evidence to the contrary, deemed not to deal with each other at arm’s length while so related.

  • 2005, c. 47, s. 1 “2”
  • 2007, c. 36, s. 83
  • 2009, c. 2, s. 342
  • 2011, c. 24, s. 163
  • 2012, c. 19, s. 697(E)
  • 2017, c. 20, s. 378, c. 26, s. 52
  • 2018, c. 27, s. 627

Designation of Minister

Marginal note:Power of Governor in Council

 The Governor in Council may designate a member of the Queen’s Privy Council for Canada to be the Minister for the purposes of this Act.

Program Established

Marginal note:Establishment

 The Wage Earner Protection Program is established to provide for payments to individuals in respect of wages owed to them by employers who are insolvent.

Eligibility for Payments

Marginal note:Conditions of eligibility

  •  (1) An individual is eligible to receive a payment if

    • (a) the individual’s employment ended for a reason prescribed by regulation;

    • (b) one of the following applies:

      • (i) the former employer is bankrupt,

      • (ii) the former employer is subject to a receivership,

      • (iii) the former employer is the subject of a foreign proceeding that is recognized by a court under subsection 270(1) of the Bankruptcy and Insolvency Act and

        • (A) the court determines under subsection (2) that the foreign proceeding meets the criteria prescribed by regulation, and

        • (B) a trustee is appointed, or

      • (iv) the former employer is the subject of proceedings under Division I of Part III of the Bankruptcy and Insolvency Act or under the Companies’ Creditors Arrangement Act and a court determines under subsection (5) that the criteria prescribed by regulation are met; and

    • (c) the individual is owed eligible wages by the former employer.

    • (d) [Repealed, 2009, c. 2, s. 343]

  • Marginal note:Prescribed criteria — foreign proceeding

    (2) On application by any person, a court may, in a proceeding under Part XIII of the Bankruptcy and Insolvency Act, determine that the foreign proceeding meets the criteria prescribed by regulation. If the court determines that the foreign proceeding meets the prescribed criteria, the court may appoint a trustee for the purposes of this Act.

  • Marginal note:Employment in Canada

    (3) An individual who is eligible to receive a payment because of subparagraph (1)(b)(iii) is only eligible to receive a payment in respect of eligible wages earned for employment in Canada and termination pay and severance pay that relate to that employment.

  • Marginal note:Deemed bankruptcy

    (4) For the purposes of this Act, if all of the conditions set out in subparagraph (1)(b)(iii) are met, the former employer is deemed to be bankrupt and the date of the bankruptcy is deemed to be the day on which all of those conditions are met.

  • Marginal note:Prescribed criteria — other proceedings

    (5) On application by any person, a court may, in proceedings under Division I of Part III of the Bankruptcy and Insolvency Act or under the Companies’ Creditors Arrangement Act, determine that the former employer meets the criteria prescribed by regulation.

Marginal note:Exceptions

 An individual is not eligible to receive a payment in respect of any wages earned during, or that otherwise relate to, a period in which the individual

  • (a) was an officer or director of the former employer;

  • (b) had a controlling interest within the meaning of the regulations in the business of the former employer;

  • (c) occupied a managerial position within the meaning of the regulations with the former employer; or

  • (d) was not dealing at arm’s length with

    • (i) an officer or director of the former employer,

    • (ii) a person who had a controlling interest within the meaning of the regulations in the business of the former employer, or

    • (iii) an individual who occupied a managerial position within the meaning of the regulations with the former employer.

  • 2005, c. 47, s. 1 “6”
  • 2007, c. 36, s. 85
  • 2009, c. 2, s. 344
  • 2018, c. 27, s. 630(F)

Amounts Covered by Program

Marginal note:Amount of payment

  •  (1) The amount that may be paid under this Act to an individual is the amount of eligible wages owing to the individual up to a maximum of an amount equal to seven times the maximum weekly insurable earnings under the Employment Insurance Act.

  • Marginal note:Reduction

    (1.1) Except in the circumstances prescribed by regulation, the amount that may be paid under this Act to an individual is to be reduced by any amounts provided for by regulation.

  • Marginal note:Greatest amount

    (2) If more than one situation that is described in paragraph 5(1)(b) applies to the former employer, the amount that may be paid is the greatest of the amounts determined in respect of each of those situations.

  • 2005, c. 47, s. 1 “7”
  • 2007, c. 36, s. 86
  • 2009, c. 2, s. 345
  • 2017, c. 26, s. 53
  • 2018, c. 27, s. 631

Application for Payment

Marginal note:Application

 To receive a payment, an individual is to apply to the Minister in the manner and during the period provided for in the regulations.

  • 2005, c. 47, s. 1 “8”
  • 2007, c. 36, s. 87
  • 2018, c. 27, s. 632(F)

Marginal note:Minister’s determination of eligibility

 If the Minister determines that the applicant is eligible to receive a payment, the Minister shall make the payment.

  • 2005, c. 47, s. 1 “9”
  • 2007, c. 36, s. 87

Marginal note:Notification

  •  (1) The Minister is to inform the applicant of their eligibility or ineligibility to receive a payment.

  • Marginal note:Notification to trustee or receiver

    (2) The Minister is to inform the trustee or receiver of the applicant’s eligibility or ineligibility to receive a payment.

  • 2005, c. 47, s. 1 “10”
  • 2007, c. 36, s. 87
  • 2018, c. 27, s. 633

Review by Minister

Marginal note:Request for review

 An applicant who is informed under section 10 may request a review of their eligibility or ineligibility, as the case may be.

  • 2005, c. 47, s. 1 “11”
  • 2007, c. 36, s. 87

Marginal note:Review

 The Minister may confirm, vary or rescind a determination of eligibility made under section 9. If the Minister varies the determination, the Minister shall make any payment resulting from the variation.

  • 2005, c. 47, s. 1 “12”
  • 2007, c. 36, s. 87

Marginal note:Notification

 The Minister is to inform the applicant and the trustee or receiver of a decision made under section 12.

  • 2018, c. 27, s. 634

Marginal note:Review is final

 Subject to the right of appeal under section 14, the Minister’s confirmation, variation or rescission, as the case may be, is final and may not be questioned or reviewed in any court.

  • 2005, c. 47, s. 1 “13”
  • 2007, c. 36, s. 87

Appeal to Board

Marginal note:Board

 For the purposes of sections 14 to 20, the Board is considered to be composed of only the Chairperson and Vice-Chairpersons as its members.

Marginal note:Appeal on question of law or jurisdiction

  •  (1) The applicant may appeal the decision made by the Minister under section 12 to the Board only on a question of law or jurisdiction.

  • Marginal note:Regulations

    (2) The Board may make regulations respecting the period during which and the manner in which an appeal may be made.

Marginal note:Assignment or appointment

  •  (1) The Chairperson of the Board may assign a member of the Board or appoint an external adjudicator to determine an appeal that comes before the Board.

  • Marginal note:Powers, duties and functions

    (2) A member of the Board and an external adjudicator have all the powers, duties and functions that are conferred on the Board by any of sections 14 to 18 with respect to any matter that has been assigned to them or for which they have been appointed, as the case may be, other than the power referred to in subsection 14(2).

  • Marginal note:Decision of member or external adjudicator

    (3) A decision made by a member of the Board or an external adjudicator under any of sections 14 to 18 is deemed to be a decision made by the Board.

  • Marginal note:Limitation of liability

    (4) A member of the Board and an external adjudicator are not personally liable, either civilly or criminally, for anything done or omitted to be done by them in good faith in the exercise or purported exercise of any power, or in the performance or purported performance of any duty or function, conferred on them under any of sections 14 to 18.

  • Marginal note:Remuneration and expenses — external adjudicator

    (5) An external adjudicator shall be paid the remuneration and the fees that may be fixed by the Chairperson of the Board and is entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties while absent from their ordinary place of residence.

 
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