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

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

• 2 (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.

Designation of Minister

Marginal note:Power of Governor in Council

3 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

4 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

• 5 (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

6 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.

Amounts Covered by Program

Marginal note:Amount of payment

• 7 (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.

Application for Payment

Marginal note:Application

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

Marginal note:Minister’s determination of eligibility

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

Marginal note:Notification

• 10 (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.

Review by Minister

Marginal note:Request for review

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

Marginal note:Review

12 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.

Marginal note:Notification

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

Marginal note:Review is final

13 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.

Appeal to Board

Marginal note:Board

13.1 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

• 14 (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

• 14.1 (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.

Marginal note:Minister informed of appeal

• 15 (1) The Board shall inform the Minister in writing when an appeal is brought and provide him or her with a copy of the request for appeal.

• Marginal note:Documents provided to Board

  (2) The Minister shall, on request of the Board, provide to the Board a copy of any document that the Minister relied on for the purpose of making the decision being appealed.

• Marginal note:Documents provided to Minister

  (3) The Board shall, on request of the Minister, provide to the Minister a copy of any document that is filed with the Board in the appeal.

• Marginal note:Power of Minister

  (4) The Minister may, in an appeal, make representations to the Board in writing.

Marginal note:Appeal on the record

16 The appeal is to be an appeal on the record and no new evidence is admissible.

Marginal note:Board’s decision

17 The Board may confirm, vary or rescind the decision made by the Minister under section 12. If the Board varies the decision, the Minister shall make any payment resulting from the variation.

Marginal note:Copies of decision

18 The Board shall send a copy of its decision, and the reasons for it, to each party to the appeal, to the Minister and to the trustee or receiver.

Marginal note:No review by certiorari, etc.

19 No order may be made to review, prohibit or restrain and no process entered or proceeding taken to question, review, prohibit or restrain in any court — whether by way of injunction, certiorari, prohibition, quo warranto or otherwise — an action of the Board under any of sections 14 to 18.

Marginal note:Decision is final

20 The Board’s decision is final and shall not be questioned or reviewed in any court.

Administration

Duties of Trustees and Receivers

Marginal note:General duties

• 21 (1) For the purposes of this Act, a trustee or a receiver, as the case may be, shall

  • (a) identify each individual who is owed eligible wages;

  • (b) determine the amount of eligible wages owing to each individual;

  • (c) inform each individual other than one who is in a class prescribed by regulation of the existence of the program established by section 4 and of the conditions under which payments may be made under this Act;

  • (d) provide the Minister and each individual other than one who is in a class prescribed by regulation with the amount of eligible wages owing to the individual and any other information prescribed by regulation;

  • (e) inform the Minister of when the trustee is discharged or the receiver completes their duties, as the case may be.

• Marginal note:Compliance with directions

  (2) A trustee or receiver shall comply with any directions of the Minister relating to the administration of this Act.

• Marginal note:Duty to assist

  (3) A person, other than one described in subsection (4), who has or has access to information described in paragraph (1)(d) shall, on request, provide it to the trustee or the receiver, as the case may be.

• Marginal note:Duty to assist — payroll contractors

  (4) A person who is dealing at arm’s length with and providing payroll services to a bankrupt or insolvent person and who has or has access to information described in paragraph (1)(d) shall,

  • (a) if requested by the trustee or receiver, provide the trustee or receiver with a description of the information described in paragraph (1)(d) that they have or have access to and an estimate of the cost of providing the information; and

  • (b) if requested by the trustee or receiver, provide the trustee or receiver with the information described in paragraph (1)(d) that they have or have access to.

Marginal note:Fees and expenses

22 Subject to section 22.1, the trustee’s or receiver’s fees and expenses, in relation to the performance of their duties under this Act, are to be paid out of the estate of the bankrupt employer or the property of the insolvent employer or by the insolvent employer.

Marginal note:Minister to pay fees and expenses

22.1 The Minister shall, in the circumstances prescribed by regulation, pay any fees or expenses of the trustee or receiver that are prescribed by regulation in relation to the performance of their duties under this Act or the performance of their duties and functions or the exercise of their powers under the Bankruptcy and Insolvency Act or the Companies’ Creditors Arrangement Act.

Powers of Minister

Marginal note:Directions to trustees and receivers

• 23 (1) The Minister may give directions to trustees and receivers in respect of the performance of their duties under this Act.

• Marginal note:Directions not statutory instruments

  (2) A direction given by the Minister is not a statutory instrument within the meaning of the Statutory Instruments Act.

Marginal note:Power to summon, etc.

• 24 (1) For the purposes of the administration of this Act, the Minister may

  • (a) summon any person before him or her and require the person to give evidence, orally or in writing, and on oath or, if the person is entitled to affirm in civil matters, on solemn affirmation;

  • (b) require any person to provide the Minister with any information or document that the Minister considers necessary; and

  • (c) require any person to provide an affidavit or a statutory declaration attesting to the truth of any information provided by the person.

• Marginal note:Taking oaths, etc.

  (2) Any person, if designated by the Minister for the purpose, may administer oaths and take and receive affidavits, statutory declarations and solemn affirmations for the purpose of or incidental to the administration of this Act. Every person so designated has, with respect to any such oath, affidavit, declaration or affirmation, all the powers of a commissioner for administering oaths or taking affidavits.

• Marginal note:Acceptance of oaths, etc.

  (3) The Minister may, for the purposes of administering this Act, accept any oath administered or any affidavit, statutory declaration or solemn affirmation taken or received by any person who has the powers of a commissioner for taking affidavits and who is an officer or employee of

  • (a) a department or other portion of the federal public administration specified in any of Schedules I, IV and V to the Financial Administration Act; or

  • (b) a department of the government of a province.

Marginal note:Inspections

• 25 (1) A person designated by the Minister for the purpose may, at any reasonable time, enter any place in which he or she reasonably believes there is any information or document relevant to the administration of this Act and may, in that place,

  • (a) inspect any books, records, electronic data or other documents that he or she reasonably believes may contain information that is relevant to the administration of this Act;

  • (b) use or cause to be used any computer system to examine any data contained in or available to the computer system;

  • (c) reproduce or cause to be reproduced any record from the data in the form of a print-out or other intelligible output;

  • (d) take any document or other thing from the place for examination or, in the case of a document, for copying; and

  • (e) use or cause to be used any copying equipment to make copies of any documents.

• Marginal note:Prior authorization

  (2) If any place referred to in subsection (1) is a dwelling-house, the designated person may not enter the dwelling-house without the consent of the occupant, except under the authority of a warrant issued under subsection (3).

• Marginal note:Warrant to enter dwelling-house

  (3) A judge may issue a warrant authorizing the designated person to enter a dwelling-house subject to the conditions specified in the warrant if, on ex parte application, the judge is satisfied by information on oath that

  • (a) there are reasonable grounds to believe that the dwelling-house is a place referred to in subsection (1);

  • (b) entry into the dwelling-house is necessary for any purpose related to the administration of this Act; and

  • (c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry will be, refused.

• Marginal note:Orders if entry not authorized

  (4) If the judge is not satisfied that entry into the dwelling-house is necessary for any purpose related to the administration of this Act, the judge may, to the extent that access was or may be expected to be refused and that information or documents are or may be expected to be kept in the dwelling-house,

  • (a) order the occupant of the dwelling-house to provide the Minister, or a person designated by the Minister for the purpose, with reasonable access to any information or document that is or should be kept in the dwelling-house; and

  • (b) make any other order that is appropriate in the circumstances to carry out the purposes of this Act.

Marginal note:Duty to assist

26 The owner or person in charge of a place that is entered by the designated person and every person found there must

• (a) give the designated person all reasonable assistance to enable him or her to exercise his or her powers and perform his or her duties; and

• (b) provide the designated person with any information relevant to the administration of this Act that he or she requires.

Marginal note:Information must be made available to Minister

27 Personal information relating to an applicant that is collected or obtained by the Canada Employment Insurance Commission must, if requested by the Minister, be made available to the Minister to determine the applicant’s eligibility to receive a payment under this Act.

28 [Repealed, 2005, c. 47, s. 140]

Marginal note:Social Insurance Number

29 No person may knowingly use, communicate or allow to be communicated a Social Insurance Number that was obtained for a purpose related to an application for a payment under this Act except for the purpose of the administration or enforcement of this Act or the Income Tax Act.

Marginal note:Delegation

30 The Minister may delegate to any person the exercise of any power or the performance of any duty or function that may be exercised or performed by the Minister under this Act.

Marginal note:Audit of applications

• 31 (1) Subject to subsections (2) to (4), the Minister may, on his or her initiative, conduct an audit of any application for payment under this Act.

• Marginal note:Applications with payment

  (2) An audit of an application in respect of which a payment was made may be conducted at any time within three years after the day on which the payment was made.

• Marginal note:Exception

  (3) If the Minister has reasonable grounds to believe that a payment was made on the basis of any false or misleading information, an audit of the application in respect of which the payment was made may be conducted at any time within six years after the payment was made.

• Marginal note:Other applications

  (4) An audit of an application in respect of which no payment was made may be conducted at any time within three years after the day on which the applicant was sent a notice informing the applicant that he or she was not eligible to receive a payment.

Marginal note:No payment or partial payment

31.1 If the Minister determines that an individual did not receive all or part of a payment that they were eligible to receive, the Minister shall make a payment to them in an amount equal to the amount that they did not receive.

Overpayments

Marginal note:Determination of overpayment

• 32 (1) If the Minister determines that an individual received a payment in an amount greater than the amount that they were eligible to receive, the Minister shall send them a notice

  • (a) informing them of the determination; and

  • (b) specifying the amount that they were not eligible to receive.

• Marginal note:Notification

  (2) The Minister shall also inform the trustee or receiver of the determination and the amount that the individual was not eligible to receive.

• (3) [Repealed, 2018, c. 27, s. 642]

Marginal note:Request for review

32.1 An individual who is informed of the Minister’s determination under subsection 32(1), other than a determination made as a result of a review under section 12, may request a review of the determination.

Marginal note:Review

32.2 The Minister may confirm, vary or rescind a determination made under subsection 32(1).

Marginal note:Notification

32.3 The Minister shall inform the individual and the trustee or receiver of a decision made under section 32.2.

Marginal note:Review is final

32.4 Subject to the right of appeal under section 32.5, the Minister’s confirmation, variation or rescission, as the case may be, is final and may not be questioned or reviewed in any court.

Marginal note:Board

32.41 For the purposes of sections 32.5 to 32.92, 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

• 32.5 (1) The individual may appeal the decision made by the Minister under section 32.2 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

• 32.51 (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 32.5 to 32.9 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 32.5(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 32.5 to 32.9 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 32.5 to 32.9.

• 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.

Marginal note:Minister informed of appeal

• 32.6 (1) The Board shall inform the Minister in writing when an appeal is brought and provide him or her with a copy of the request for appeal.

• Marginal note:Board provided with documents

  (2) The Minister shall, on request of the Board, provide the Board with a copy of any document that the Minister relied on for the purpose of making the decision being appealed.

• Marginal note:Minister provided with documents

  (3) The Board shall, on request of the Minister, provide the Minister with a copy of any document that is filed with the Board in the appeal.

• Marginal note:Power of Minister

  (4) The Minister may, in an appeal, make representations to the Board in writing.

Marginal note:Appeal on the record

32.7 The appeal is to be an appeal on the record and no new evidence is admissible.

Marginal note:Board’s decision

32.8 The Board may confirm, vary or rescind the decision made by the Minister under section 32.2.

Marginal note:Copies of decision

32.9 The Board shall send a copy of its decision, and the reasons for it, to each party to the appeal, to the Minister and to the trustee or receiver.

Marginal note:No review by certiorari, etc.

32.91 No order may be made to review, prohibit or restrain and no process entered or proceeding taken to question, review, prohibit or restrain in any court — whether by way of injunction, certiorari, prohibition, quo warranto or otherwise — an action of the Board under any of sections 32.5 to 32.9.

Marginal note:Decision is final

32.92 The Board’s decision is final and shall not be questioned or reviewed in any court.

Marginal note:Debt due to Her Majesty

• 32.93 (1) An amount determined to be owing under section 32, 32.2 or 32.8 constitutes a debt due to Her Majesty in right of Canada and the debt may be recovered by the Minister of National Revenue.

• Marginal note:Certificate of default

  (2) The amount of any debt referred to in subsection (1) may be certified by the Minister, and registration of the certificate in the Federal Court has the same effect as a judgment of that Court for the amount specified in the certificate and all related registration costs.

Marginal note:Garnishment

33 If the Minister is of the opinion that a person is or is about to become liable to pay an amount to an individual who is indebted to Her Majesty under subsection 32.93(1), the Minister may, by written notice, order the person to pay to the Receiver General on account of the individual’s liability all or part of the amount otherwise payable to the individual.

Marginal note:When debt may be recovered

34 Any action to recover a debt under subsection 32.93(2) or section 33 may be taken only after the end of the period within which an individual may request a review under section 32.1 or, if the individual requests a review within that period, after final disposition of the review and any appeals.

Financial Provisions

Marginal note:Payments out of C.R.F.

35 There may be paid out of the Consolidated Revenue Fund all payments authorized to be made under this Act.

Marginal note:Subrogation

• 36 (1) If a payment is made under this Act to an individual in respect of eligible wages, Her Majesty in right of Canada is, to the extent of the amount of the payment, subrogated to any rights the individual may have in respect of the eligible wages against

  • (a) the bankrupt or insolvent employer; and

  • (b) if the bankrupt or insolvent employer is a corporation, a director of the corporation.

• Marginal note:Notice to Minister

  (1.1) Unless the Minister directs otherwise, an individual who received a payment under this Act shall notify the Minister, in writing, of any action or other proceeding, other than the one in respect of which the individual received the payment, to recover eligible wages, including an action or other proceeding that is commenced by another person or organization and of which the individual is aware. The notice shall contain any information prescribed by regulation.

• Marginal note:Notice to Minister — decision or order

  (1.2) Unless the Minister directs otherwise, an individual who received a payment under this Act shall also notify the Minister, in writing, of any final decision or order, of which they are aware, respecting the recovery of eligible wages. The notice shall contain any information prescribed by regulation.

• Marginal note:Maintaining an action

  (2) For the purposes of subsection (1), Her Majesty in right of Canada may maintain an action in the name of the individual or Her Majesty in right of Canada.

Marginal note:Payment to Her Majesty in right of Canada

• 36.1 (1) If, under a court judgment or for any other reason, a trustee, receiver or any other person is required to pay eligible wages to an individual who the trustee, receiver or other person has reason to believe has received a payment under this Act, the trustee, receiver or other person shall

  • (a) ascertain whether Her Majesty in right of Canada is subrogated to any rights the individual may have in respect of the eligible wages; and

  • (b) if Her Majesty in right of Canada is subrogated, pay to Her Majesty the amount in respect of which Her Majesty is subrogated before making any payment to the individual in respect of eligible wages.

• Marginal note:Components of wages

  (2) A trustee, receiver or other person who makes a payment under paragraph (1)(b) shall provide the Minister with information respecting the components of wages to which the payment relates.

Marginal note:Amount not assignable

37 An amount that is payable under this Act is not capable of being assigned, charged, attached, anticipated or given as security and any transaction appearing to do so is void or, in Quebec, null.

Offences and Penalties

Marginal note:Offences

• 38 (1) Every person commits an offence who

  • (a) makes a false or misleading entry, or omits to enter a material particular, in any record or book of account that contains information that supports an application under this Act;

  • (b) in relation to an application under this Act, makes a representation that the person knows to be false or misleading;

  • (c) in relation to an application under this Act, makes a declaration that the person knows to be false or misleading because of the nondisclosure of facts;

  • (d) being required under this Act to provide information, does not provide it or makes a representation that the person knows to be false or misleading;

  • (e) obtains a payment under this Act by false pretence;

  • (f) being the payee of any cheque issued as a payment under this Act, knowingly negotiates or attempts to negotiate it knowing that the person is not entitled to the payment or any part of the payment; or

  • (g) participates in, consents to or acquiesces in an act or omission mentioned in any of paragraphs (a) to (f).

• Marginal note:Trustees and receivers

  (2) Every person who fails to comply with any of the requirements of subsection 21(1), (3) or (4) commits an offence.

• Marginal note:Limitation of prosecutions

  (3) A prosecution for an offence under subsection (1) or (2) may be commenced at any time within six years after the day on which the subject matter of the prosecution arose.

• Marginal note:Due diligence

  (4) No person may be convicted of an offence under subsection (2) if the person establishes that they exercised due diligence to prevent the commission of the offence.

Marginal note:Obstruction

• 39 (1) Every person commits an offence who delays or obstructs a person in the exercise of their powers or the performance of their duties under this Act.

• Marginal note:Limitation of prosecutions

  (2) A prosecution for an offence under subsection (1) may be commenced at any time within two years after the day on which the subject matter of the prosecution arose.

Marginal note:Punishment

40 Every person who is guilty of an offence under section 38 or 39 is liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

Regulations

Marginal note:Regulations

41 The Governor in Council may make regulations generally for carrying out the purposes of this Act, including regulations

• (a) prescribing amounts for the purposes of subsection 2(1);

• (b) prescribing reasons for the purposes of paragraph 5(1)(a);

• (b.1) prescribing criteria for the purposes of subsections 5(2) and (5);

• (c) defining controlling interest and managerial position for the purposes of section 6;

• (d) prescribing circumstances and providing for amounts for the purposes of subsection 7(1.1);

• (e) respecting the allocation of payments to the different components of wages;

• (f) respecting the period during which and the manner in which applications for payments are to be made under section 8;

• (g) respecting the period during which and the manner in which a review may be requested under section 11 or 32.1;

• (h) prescribing the classes of individuals that the trustee or receiver is not required to inform under paragraph 21(1)(c) or to whom they are not required to provide information under paragraph 21(1)(d);

• (i) respecting the information that is to be provided by trustees and receivers to the Minister and to individuals for the purposes of paragraph 21(1)(d) and respecting the period during which and the manner in which that information is to be provided;

• (j) respecting the period during which and the manner in which the information referred to in paragraph 21(1)(c) and subsections 21(3) and (4) is to be provided;

• (k) prescribing fees and expenses for the purposes of section 22.1 and the circumstances in which they are to be paid; and

• (l) prescribing the period during which and the manner in which the Minister must be notified under subsection 36(1.1) or (1.2) and the information that must be contained in the notice.

Review of Act

Marginal note:Review

42 Within five years after the day on which this section comes into force, the Minister must cause a review of this Act and its administration and operation to be conducted, and cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.