Vol. 150, No. 26 — December 28, 2016
Registration
SI/2016-71 December 28, 2016
OLD AGE SECURITY ACT
Proclamation Giving Notice that the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China Comes into Force on January 1, 2017
David Johnston
[L.S.]
Canada
Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories QUEEN, Head of the Commonwealth, Defender of the Faith.
William Pentney
Deputy Attorney General
TO ALL TO WHOM these presents shall come or whom the same may in any way concern,
GREETING:
A Proclamation
Whereas by Order in Council P.C. 2016-167 of March 24, 2016, the Governor General in Council declared that, in accordance with Article 18 of the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China, signed at Ottawa on April 2, 2015, the Agreement is to enter into force on the first day of the fourth month following the month in which the later diplomatic note from each Contracting State notifying the other that it has completed the internal legal procedures necessary for the entry into force of the Agreement is received;
Whereas that Order in Council was laid before the House of Commons and the Senate on April 13, 2016, as required under the provisions of the Old Age Security Act;
Whereas, before the twentieth sitting day after the Order had been laid before Parliament, no motion for the consideration of either House to the effect that the Order be revoked was filed with the Speaker of the appropriate House;
Whereas, pursuant to subsection 42(2) of the Old Age Security Act, the Order came into force on the thirtieth sitting day after it had been laid before Parliament, being June 8, 2016;
Whereas the exchange of diplomatic notes was completed in September 2016;
Whereas the Agreement is to enter into force on the first day of the fourth month following the month in which the later diplomatic note from each Contracting State notifying the other that it has completed the internal legal procedures necessary for the entry into force of the Agreement is received, being January 1, 2017;
And whereas, by Order in Council P.C. 2016-991 of November 18, 2016, the Governor in Council, pursuant to subsection 41(2) of the Old Age Security Act, directed that a proclamation be issued giving notice that the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China is in force as of January 1, 2017;
Now know you that We, by and with the advice of Our Privy Council for Canada, do by this Our proclamation give notice that the Agreement on Social Security between the Government of Canada and the Government of the People’s Republic of China, a copy of which is annexed to this proclamation, is in force as of January 1, 2017.
Of all which Our Loving Subjects and all others whom these presents may concern are required to take notice and to govern themselves accordingly.
In testimony whereof, We have caused this Our Proclamation to be published and the Great Seal of Canada to be affixed to it.
WITNESS:
Our Right Trusty and Well-beloved David Johnston, Chancellor and Principal Companion of Our Order of Canada, Chancellor and Commander of Our Order of Military Merit, Chancellor and Commander of Our Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.
AT OUR GOVERNMENT HOUSE, in Our City of Ottawa, this twelfth day of December in the year of Our Lord two thousand and sixteen and in the sixty-fifth year of Our Reign.
By command,
John Knubley
Deputy Registrar General of Canada
AGREEMENT ON SOCIAL SECURITY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA
THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA,
COMMITTED to develop friendly relations between Canada and the People’s Republic of China (hereinafter referred to as the Contracting States),
RESOLVED to co-operate in the field of social security,
HAVE DECIDED to conclude an agreement for this purpose, and
HAVE AGREED as follows:
PART I
GENERAL PROVISIONS
ARTICLE 1
Definitions
1. For the purposes of this Agreement:
“competent agency” means,
for Canada, the departments or agencies that are responsible for the application of the legislation of Canada; and
for the People’s Republic of China, the Social Insurance Administration of the Ministry of Human Resources and Social Security or other bodies designated by that Ministry;
“competent authority” means,
for Canada, the Minister or Ministers that are responsible for the application of the legislation of Canada; and
for the People’s Republic of China, the Ministry of Human Resources and Social Security;
“legislation” means,
for Canada, the laws and regulations specified in Article 2; and
for the People’s Republic of China, the laws, the administrative, ministerial, and local rules and regulations, and the other legal documents concerning the social insurance systems specified in Article 2.
2. A term not defined in this Article has the meaning assigned to it in the legislation of the respective Contracting States.
ARTICLE 2
Legislative Scope
1. For the People’s Republic of China, this Agreement applies to the legislation related to the following schemes:
- (a) Basic Old-Age Insurance for Employees; and
- (b) Basic Old-Age Insurance for Urban and Rural Residents.
2. For Canada, this Agreement applies to the following legislation:
- (a) the Old Age Security Act and the regulations made thereunder; and
- (b) the Canada Pension Plan and the regulations made thereunder.
3. This Agreement also applies to laws and regulations that amend, supplement, consolidate, or supersede the legislation specified in paragraphs 1 and 2. However, this Agreement does not apply to an amendment that establishes a new social security scheme, unless the competent authorities of the Contracting States jointly decide to apply that amendment.
4. Unless otherwise provided in this Agreement, the legislation referred to in this Article does not include other treaties or international agreements on social security that may be concluded between one Contracting State and a third State, or laws and regulations that are promulgated to implement those other treaties or international agreements.
ARTICLE 3
Personal Scope
This Agreement applies to any person who is or who has been subject to the legislation of one or both Contracting States, and to any person who derives rights from that person under the applicable legislation of either Contracting State.
ARTICLE 4
Equality of Treatment
A Contracting State shall treat all persons to whom this Agreement applies equally in regard to rights and obligations that arise under the legislation of that Contracting State or under this Agreement.
PART II
PROVISIONS CONCERNING THE APPLICABLE LEGISLATION
ARTICLE 5
General Rules for Employed and Self-Employed Persons
Except as otherwise provided in Articles 6 to 9:
- (a) an employed person who works in the territory of a Contracting State is, in respect of that work, subject only to the legislation of that Contracting State;
- (b) a self-employed person who resides in the territory of a Contracting State and who works for his or her own account in the territory of the other Contracting State or in the territories of both Contracting States is, in respect of that work, subject only to the legislation of the first Contracting State.
ARTICLE 6
Detachments
1. A person who:
- (a) is employed by an employer with a place of business in the territory of one Contracting State;
- (b) is covered under the legislation of that Contracting State in respect of that employment; and
- (c) is sent to work in the territory of the other Contracting State in the course of that employment,
is, in respect of that work, subject only to the legislation of the first Contracting State as though that work were performed in its territory. The maximum period of that detachment is 72 months.
2. If the detachment continues beyond the period specified in paragraph 1, the legislation of the first Contracting State continues to apply, provided that the competent authorities or competent agencies of the Contracting States consent.
ARTICLE 7
Crews of Ships and Aircrafts
A person who is subject to the legislation of both Contracting States in respect of employment as a member of the crew of a ship or aircraft shall, in respect of that employment, be subject only to the legislation of the Contracting State where that person resides.
ARTICLE 8
Government Employment
1. Notwithstanding this Agreement, the provisions regarding social security of the Vienna Convention on Diplomatic Relations of 18 April 1961 and the Vienna Convention on Consular Relations of 24 April 1963 continue to apply.
2. For the People’s Republic of China, if a person employed by the central or local government, or any other public institution, is subject to the legislation of the People’s Republic of China and is sent to work in the territory of Canada, that person is, with respect to that employment, subject only to the legislation of the People’s Republic of China.
3. For Canada, if a person in government employment is subject to the legislation of Canada and is sent to work in the territory of the People’s Republic of China, that person is, with respect to that employment, subject only to the legislation of Canada.
ARTICLE 9
Exceptions
The competent authorities of the Contracting States may jointly grant an exception to the application of Articles 5 to 8 with respect to any person or categories of persons, if that person is subject to the legislation of either Contracting State.
ARTICLE 10
Definition of Certain Periods of Residence under the Legislation of Canada
1. For the purposes of the Old Age Security Act:
- (a) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of presence or residence in the People’s Republic of China, that period is considered a period of residence in Canada for that person; it is also considered to be a period of residence in Canada for that person’s spouse or common-law partner and dependants who reside with that person and who are not subject to the legislation of the People’s Republic of China by reason of employment or self-employment;
- (b) if a person is subject to the legislation of the People’s Republic of China during any period of presence or residence in Canada, that period for that person, and for that person’s spouse or common-law partner and dependants who reside with that person will be determined according to the provisions of Canadian legislation.
2. For the purposes of paragraph 1, Canada:
- (a) shall consider that a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during a period of presence or residence in the People’s Republic of China only if during that period that person makes contributions pursuant to the plan concerned by reason of employment or self-employment;
- (b) shall consider that a person is subject to the legislation of the People’s Republic of China during a period of presence or residence in Canada only if during that period that person makes compulsory contributions pursuant to that legislation by reason of employment or self-employment.
PART III
ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS
ARTICLE 11
Administrative Arrangement
1. The competent authorities of the Contracting States shall conclude an administrative arrangement that establishes the measures necessary to apply this Agreement.
2. In the administrative arrangement, the competent authorities of each Contracting State shall designate a liaison agency.
ARTICLE 12
Exchange of Information
1. A Contracting State, through its competent authority or competent agency responsible for the application of this Agreement shall:
- (a) to the extent permitted by its laws, communicate to the other Contracting State any information necessary for the application of this Agreement and the legislation to which this Agreement applies;
- (b) promptly communicate to the other Contracting State all information about the measures it takes to apply this Agreement or about changes in its legislation that affect how it applies this Agreement.
2. Unless disclosure is required under the laws of a Contracting State, any information about a person that is transmitted from one Contracting State to the other Contracting State in accordance with this Agreement is confidential and is used only to implement this Agreement and the legislation to which this Agreement applies. Any information about a person that is obtained by the receiving Contracting State may not be disclosed subsequently to any other person, body or country unless the sending Contracting State is notified and considers it advisable and the information is disclosed only for the same purpose for which it was originally disclosed.
ARTICLE 13
Exemption or Reduction of Dues, Fees or Charges
1. If one Contracting State’s legislation provides that a person is exempt from paying all or part of a legal, consular, or administrative fee for a certificate or document that is required to apply that legislation, the same exemption applies to any fee for a certificate or document that is required to apply the legislation of the other Contracting State.
2. Any documents of an official nature required for the application of this Agreement are exempt from requirements for authentication by diplomatic or consular authorities or a third party.
ARTICLE 14
Language of Communication
1. For the application of this Agreement, the competent authorities and competent agencies of the Contracting States may communicate directly with one another in any official language of either Contracting State.
2. A Contracting State shall not reject a document on the sole basis that the document is in an official language of the other Contracting State.
ARTICLE 15
Resolution of Disputes
1. The competent authorities of the Contracting States shall resolve, to the extent possible, any disputes which arise in interpreting or applying this Agreement, in accordance with the spirit and fundamental principles of this Agreement.
2. The Contracting States shall promptly settle through negotiations any dispute that is not resolved in accordance with paragraph 1.
ARTICLE 16
Understandings with a Province of Canada
The relevant authority of the People’s Republic of China and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada if those understandings are not inconsistent with this Agreement.
PART IV
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 17
Transitional Provision
If a person begins a detachment before the date of entry into force of this Agreement, the period of the detachment for the purposes of Article 6 begins on the date of entry into force of this Agreement.
ARTICLE 18
Entry into Force, Duration and Termination
1. Each Contracting State shall notify the other by diplomatic note that it has completed the internal legal procedures necessary for the entry into force of this Agreement. This Agreement enters into force on the first day of the fourth month following the month in which the later note is received.
2. This Agreement remains in force indefinitely. A Contracting State may terminate it at any time by giving 12 months’ notice, in writing, through diplomatic channels to the other Contracting State.
3. If this Agreement is terminated, any right acquired by a person in accordance with its provisions is maintained.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Ottawa this 2nd day of April 2015, in the English, French, and Chinese languages, each version being equally authentic.
Alice Wong
For the Government of Canada
Hu Xiaoyi
For the Government of the People’s Republic of China