Wage Earner Protection Program Act

The Wage Earner Protection Program Act (S.C. 2005, c. 47, s.1),[1] is an Act of the Parliament of Canada. It was part of a package of reforms to the insolvency law of Canada that were brought into force in 2008 and 2009 to compensate employees of companies made bankrupt or placed into receivership under the Bankruptcy and Insolvency Act.[2] It was subsequently expanded in 2011 to cover employees who lose their jobs when their employer's attempt at restructuring subsequently ends in bankruptcy or receivership.[3]

Background

The issue of fairness with respect to employees terminated as a result of business failures was addressed by the Parliament of Canada as early as 1949, when the Bankruptcy Act was amended to provide a limited preferred creditor status to such claims. From 1975, legislative proposals were actively considered for the establishment of a wage protection scheme in the event of the bankruptcy, liquidation or receivership of an employer. The various options discussed for how this could be achieved included:

  • super priority for wage claims,;
  • recognition of existing provincial/territorial priorities within the BIA framework,
  • a waiver of the waiting period for employment insurance benefits, and
  • a wage earner protection fund financed either out of general tax revenues or as part of the employment insurance regime.

In November 2003, the Senate Committee on Banking, Trade and Commerce reviewed the history of these discussions and recommended that the option for super priority status be adopted.[4] In 2005, the BIA was accordingly amended and the WEPPA enacted. These provisions did not immediately come into force, as several technical amendments needed to be passed in 2007. The Act came into force on 7 July 2008.[5]

Wage Earner Protection Program framework

The WEPP is administered by Human Resources and Skills Development Canada, drawing on reports submitted by trustees and receivers of employers undergoing restructuring, bankruptcy or receivership.[6] Under the Program, payouts are made to eligible employees who earned eligible wages during a specified eligibility period, and such payments constitute (in part) a "super-priority" upon the employer's current assets.[7][8]

  • were an officer or a director of the former employer
  • had a controlling interest in the business of the former employer
  • were a manager whose responsibilities included making binding financial decisions impacting the business of the former employer, and/or making binding decisions on the payment or non payment of wages by the former employer, or
  • were not dealing at arm's length with any of these persons[9]
  • Salaries, commissions, compensation for services rendered, vacation pay, gratuities accounted for by the employer, disbursements of a travelling salesperson properly incurred in and about the business of the former employer, production bonuses and shift premiums that were earned during the eligibility period preceding the bankruptcy or receivership, and
  • Severance pay and termination pay for employment that ended in the eligibility period preceding the bankruptcy or receivership.[10]
  • the bankrupt or insolvent employer, and
  • where the employer is a corporation, any of its directors[12]

Controversy over scope and effect of WEPPA

As the Act only covers wage claims that arise upon bankruptcy or receivership, it does not figure in proceedings conducted only under the Companies' Creditors Arrangement Act.

The phrase "compensation for services rendered" in the definition for "eligible wages" was held by the British Columbia Supreme Court in 2009 to include other amounts that were earned by the employee and which were directed to be paid to a third party pursuant to a contract covering the employee.[13][14][15] This ruling was upheld in 2010 by the British Columbia Court of Appeal.[16]

It has also been argued that the WEPPA may also have the counterintuitive effect of reducing manufacturing employment in Canada through automation and offshoring of processes, as well as restricting financing that could be available to manufacturers, because of the super-priority nature of the program.[17]

References

  1. ↑ "Wage Earner Protection Program Act". Retrieved 2012-05-15.
  2. ↑ "Summary of Key Legislative Changes in Chapter 47 of the Statutes of Canada, 2005, and Chapter 36 of the Statutes of Canada, 2007". Retrieved 2012-05-15.
  3. ↑ "Recent legislative changes to the WEPP". Retrieved 2012-05-15.
  4. ↑ "DEBTORS AND CREDITORS SHARING THE BURDEN: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act" (PDF). Senate Committee on Banking, Trade and Commerce. November 2003. pp. 87–99. Retrieved 2012-05-16.
  5. ↑ "Wage Earner Protection Program in Force, July 7, 2008" (PDF). Retrieved 2012-05-16.
  6. ↑ "Wage Earner Protection Program". Retrieved 2012-05-15.
  7. ↑ Bankruptcy and Insolvency Act, s. 81.3
  8. ↑ Bankruptcy and Insolvency Act, s. 81.4
  9. ↑ "Am I eligible for the WEPP?". Retrieved 2012-05-15.
  10. 1 2 "What are eligible wages under the WEPP?". Retrieved 2012-05-15.
  11. ↑ "How much will I receive?". Retrieved 2012-05-15.
  12. ↑ WEPPA, s. 36
  13. ↑ Ted Leroy Trucking Ltd. and 383838 B.C. Ltd. (Re.), 2009 BCSC 41 (CanLII)
  14. ↑ "Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. - Monitor's Ninth report to Court and Receiver's Second report to Court" (PDF). PricewaterhouseCoopers. Retrieved 2012-05-15.
  15. ↑ Mary I.A. Buttery, Cindy Cheuk. "EMPLOYEE SUPER-PRIORITY UNDER THE WEPPA AND THE BIA: Comments on Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (Re)" (PDF). Fraser Milner Casgrain. Retrieved 2012-05-15.
  16. ↑ Ted Leroy Trucking Ltd. v. Century Services Inc., 2010 BCCA 223 (CanLII)
  17. ↑ Matthew Lem. "WEPPA: Wage Protection for Employees, Credit Constriction for Employers". BDO Dunwoody. Retrieved 2012-05-15.
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