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Agreement on Social Security between Canada and the Republic of Estonia [2006] CATSer 17 (1 November 2006)

E105018

AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF ESTONIA

CANADA AND THE REPUBLIC OF ESTONIA, hereinafter referred to as “the Parties”,

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 I

Definitions

1. For the purposes of this Agreement:

“benefit” means, as regards a Party, any pension or other cash benefit for which provision is made in the legislation of that Party and includes any supplements or increases applicable to such a pension or cash benefit;

“competent authority” means, as regards a Party, the Minister or Ministers responsible for the application of the legislation of that Party;

“competent institution” means, as regards Canada, the competent authority; and, as regards the Republic of Estonia, the institutions charged with the implementation of the legislation of the Republic of Estonia;

“creditable period” means, as regards a Party, a period of contributions, insurance or residence used to acquire the right to a benefit under the legislation of that Party; as regards Canada, it also means a period during which a disability pension is payable under the Canada Pension Plan; and, as regards the Republic of Estonia, other periods of pensionable service as defined in the legislation of the Republic of Estonia;

“legislation” means, as regards a Party, the acts and regulations specified in Article II;

“residence” means, as regards the Republic of Estonia, legal residence in the territory of the Republic of Estonia, including permanent residence or temporary residence status;

“territory” means, as regards Canada, the territory of Canada; and, as regards the Republic of Estonia, the territory under the jurisdiction of the Republic of Estonia; and the terms “Canada” and “Republic of Estonia”, when used in a geographical sense, shall be interpreted accordingly;

2. Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

Article II

Legislation to which the Agreement Applies

1. This Agreement shall apply to the following legislation:

(a) with respect to Canada :

(i) the Old Age Security Act and the regulations made thereunder;

(ii) the Canada Pension Plan and the regulations made thereunder;

(b) with respect to the Republic of Estonia :

(i) the acts and regulations made thereunder regulating the state old-age pension, pension for incapacity for work, survivor’s pension and national pension;

(ii) the Social Tax Act.

2. Subject to paragraph 3, this Agreement shall also apply to acts and regulations which amend, supplement, consolidate or supersede the legislation specified in paragraph 1.

3. This Agreement shall further apply to acts and regulations which extend the legislation of a Party to new categories of beneficiaries or to new benefits unless an objection on the part of that Party has been communicated to the other Party not later than three months following the entry into force of such acts and regulations.

Article III

Persons to Whom the Agreement Applies

This Agreement shall apply to:

(a) any person who is or who has been subject to the legislation of one or both of the Parties;

(b) other persons to the extent they derive rights under the applicable legislation from a person described in sub-paragraph (a).

Article IV

Equality of Treatment

All persons described in Article III to whom this Agreement applies shall have equal rights and obligations under the legislation of the Parties.

Article V

Export of Benefits

Unless otherwise provided in this Agreement, benefits payable under the legislation of a Party to any person described in Article III, including benefits acquired by virtue of this Agreement, shall not be subject to any reduction, modification, suspension or cancellation by reason only of the fact that the person resides in the territory of the other Party, and these benefits shall be paid when that person resides in the territory of the other Party.

PART II - PROVISIONS CONCERNING THE APPLICABLE LEGISLATION

Article VI

General Rules Regarding Coverage of Employed and Self-Employed Persons

Subject to Articles VII to IX:

(a) an employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party;

(b) a self-employed person who, but for this Agreement, would be subject to the legislation of both Parties in respect of that self-employment shall, in respect thereof, be subject only to the legislation of the Party in whose territory he or she resides.

Article VII

Detachments

An employed person who is subject to the legislation of a Party and who works in the territory of the other Party for the same employer shall, in respect of that work, be subject only to the legislation of the first Party as though that work was performed in its territory. In the case of an assignment, this coverage may not be maintained for more than 60 months without the prior consent of the competent institutions of both Parties.

Article VIII

Government Employment

1. Notwithstanding any provision of 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 shall continue to apply.

2. A person engaged in government employment for a Party who is posted to work in the territory of the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.

3. Except as provided in paragraphs 1 and 2, a person who resides in the territory of a Party and who is engaged therein in government employment for the other Party shall, in respect of that employment, be subject only to the legislation of the first Party. However, if that person has, prior to the start of that employment, made contributions under the legislation of the employing Party, he or she may, within 6 months of the start of that employment or the entry into force of this Agreement, whichever is later, elect to be subject only to the legislation of the latter Party.

Article IX

Exceptions

The competent authorities of the Parties may, by common agreement, modify the application of the provisions of Articles VI to VIII with respect to any person or categories of persons.

Article X

Definition of Certain Periods of Residence with Respect to the Legislation of Canada

1. For the purpose of calculating the amount of benefits under 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 Republic of Estonia, that period shall be considered as a period of residence in Canada for that person as well as for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the legislation of the Republic of Estonia by reason of employment or self-employment;

(b) if a person is subject to the legislation of the Republic of Estonia during any period of presence or residence in Canada, that period shall not be considered as a period of residence in Canada for that person and for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment or self-employment.

2. In the application of paragraph 1:

(a) a person shall be considered to be 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 Republic of Estonia or Canada only if that person makes contributions pursuant to the plan concerned during that period by reason of employment or self-employment;

(b) a person shall be considered to be subject to the legislation of the Republic of Estonia during a period of presence or residence in Canada or the Republic of Estonia only if compulsory contributions are paid on behalf of that person pursuant to that legislation during that period by reason of employment or self-employment.

Article XI

Definition of Certain Periods of Residence with Respect to the Legislation of the Republic of Estonia

For the purpose of determining eligibility for a national pension under the legislation of the Republic of Estonia:

(a) if a person is subject to the legislation of the Republic of Estonia during any period of residence in Canada, that period shall be considered as a period of residence in the Republic of Estonia for that person as well as for that person’s accompanying spouse who resides with him or her and who is not subject to the legislation of Canada by reason of employment or self-employment;

(b) if a person is subject to the legislation of Canada during any period of residence in the Republic of Estonia, that period shall not be considered as a period of residence in the Republic of Estonia for that person as well as for that person’s accompanying spouse who resides with him or her and who is not subject to the legislation of the Republic of Estonia by reason of employment or self-employment.

PART III - PROVISIONS CONCERNING BENEFITS

CHAPTER 1 - TOTALIZING

Article XII

Periods under the Legislation of Canada and the Republic of Estonia

1. If a person is not eligible for a benefit because he or she has not accumulated sufficient creditable periods under the legislation of a Party, the eligibility of that person for that benefit shall be determined by totalizing these periods and those specified in paragraphs 2 through 4, provided that the periods do not overlap.

2. (a) For the purpose of determining eligibility for a benefit under the Old Age Security Act of Canada, a period which is a creditable period for purposes of an old-age pension under the legislation of the Republic of Estonia shall be considered as a period of residence in Canada;

(b) For the purpose of determining eligibility for a benefit under the Canada Pension Plan, a calendar year which is a creditable period for purposes of an incapacity for work or survivor’s pension under the legislation of the Republic of Estonia shall be considered as a year which is creditable under the Canada Pension Plan.

3. For the purpose of determining eligibility for an old-age, incapacity for work or survivor’s pension under the legislation of the Republic of Estonia, a calendar year which is a creditable period under the Canada Pension Plan shall be considered as one year which is creditable under the legislation of the Republic of Estonia.

4. For the purpose of determining eligibility for a national pension under the legislation of the Republic of Estonia, a creditable period under the Old Age Security Act of Canada shall be considered as a creditable period under the legislation of the Republic of Estonia.

Article XIII

Periods under the Legislation of a Third State

If a person is not eligible for a benefit on the basis of the creditable periods under the legislation of the Parties, totalized as provided in Article XII, the eligibility of that person for that benefit shall be determined by totalizing these periods and creditable periods completed under the legislation of a third State with which both Parties are bound by social security instruments which provide for the totalizing of periods.

Article XIV

Minimum Period to be Totalized

Notwithstanding any other provision of this Agreement, if the total duration of the creditable periods accumulated by a person under the legislation of a Party is less than one year and if, taking into account only those periods, no right to a benefit exists under the legislation of that Party, the competent institution of that Party shall not be required to pay a benefit to that person in respect of those periods by virtue of this Agreement.

CHAPTER 2 - BENEFITS UNDER THE LEGISLATION OF CANADA

Article XV

Benefits under the Old Age Security Act

1. If a person is eligible for a pension or allowance under the Old Age Security Act solely through the application of the totalizing provisions of Chapter 1, the competent institution of Canada shall calculate the amount of the pension or allowance payable to that person in conformity with the provisions of that Act governing the payment of a partial pension or allowance, exclusively on the basis of the periods of residence in Canada which may be considered under that Act.

2. Paragraph 1 shall also apply to a person outside Canada who would be eligible for a full pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for the payment of a pension outside Canada.

3. Notwithstanding any other provision of this Agreement:

(a) an Old Age Security pension shall be paid to a person who is outside Canada only if that person’s periods of residence, when totalized as provided in Chapter 1, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for the payment of a pension outside Canada;

(b) an allowance and a guaranteed income supplement shall be paid to a person who is outside Canada only to the extent permitted by the Old Age Security Act.

Article XVI

Benefits under the Canada Pension Plan

If a person is eligible for a benefit solely through the application of the totalizing provisions of Chapter 1, the competent institution of Canada shall calculate the amount of benefit payable to that person in the following manner:

(a) the earnings-related portion of the benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan;

(b) the flat-rate portion of the benefit shall be determined by multiplying:

(i) the amount of the flat-rate portion of the benefit determined in conformity with the provisions of the Canada Pension Plan

by

(ii) the fraction which represents the ratio of the periods of contributions to the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish eligibility for that benefit, but in no case shall that fraction exceed the value of one.

CHAPTER 3 - PENSIONS UNDER THE LEGISLATION OF THE REPUBLIC OF ESTONIA

Article XVII

Calculating the Amount of Pension Payable

1. If a person is eligible for a pension solely through the application of the totalizing provisions of Chapter 1, the competent institution of the Republic of Estonia shall calculate the amount of pension payable to that person according to the legislation of the Republic of Estonia, exclusively taking into account periods completed under its legislation.

2. In determining the right to a deferred old-age pension, no account shall be taken of a benefit paid under the legislation of Canada, whether by virtue of this Agreement or under that legislation alone.

PART IV - ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS

Article XVIII

Administrative Arrangement

1. The competent authorities of the Parties shall conclude an administrative arrangement which establishes the measures necessary for the application of this Agreement.

2. The liaison agencies of the Parties shall be designated in that arrangement.

Article XIX

Exchange of Information and Mutual Assistance

1. The competent authorities and institutions responsible for the application of this Agreement:

(a) shall, to the extent permitted by the legislation which they administer, communicate to each other any information necessary for the application of that legislation;

(b) shall lend their good offices and furnish assistance to one another for the purpose of determining eligibility for, or the amount of, any benefit under this Agreement, or under the legislation to which this Agreement applies, as if the matter involved the application of their own legislation;

(c) shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation in so far as these changes affect the application of this Agreement.

2. The assistance referred to in sub-paragraph 1(b) shall be provided free of charge, subject to any provision contained in an administrative arrangement concluded pursuant to Article XVIII for the reimbursement of certain types of expenses.

3. Unless disclosure is required under the laws of a Party, any information about a person which is transmitted in accordance with this Agreement to that Party by the other Party is confidential and shall be used only for purposes of implementing this Agreement and the legislation to which this Agreement applies.

Article XX

Exemption or Reduction of Taxes, Dues, Fees and Charges

1. Any exemption from or reduction of taxes, legal dues, consular fees and administrative charges for which provision is made in the legislation of a Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of the other Party.

2. Any documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities and similar formality.

Article XXI

Language of Communication

For the application of this Agreement, the competent authorities and institutions of the Parties may communicate directly with one another in any official language of either Party.

Article XXII

Submitting a Claim, Notice or Appeal

1. Claims, notices and appeals concerning eligibility for, or the amount of, a benefit under the legislation of a Party which should, for the purposes of that legislation, have been presented within a prescribed period to a competent authority or institution of that Party, but which are presented within the same period to an authority or institution of the other Party, shall be treated as if they had been presented to the competent authority or institution of the first Party. The date of presentation of claims, notices and appeals to the authority or institution of the other Party shall be deemed to be the date of their presentation to the competent authority or institution of the first Party.

2. Subject to the second sentence of this paragraph, a claim for a benefit under the legislation of a Party made after the date of entry into force of this Agreement shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant at the time of application:

(a) requests that it be considered an application under the legislation of the other Party, or

(b) provides information indicating that creditable periods have been completed under the legislation of the other Party.

The preceding sentence shall not apply if the applicant requests that his or her claim to the benefit under the legislation of the other Party be delayed.

3. In any case to which paragraph 1 or 2 applies, the authority or institution to which the claim, notice or appeal has been submitted shall transmit it without delay to the authority or institution of the other Party.

Article XXIII

Payment of Benefits

1. The competent institution of a Party shall discharge its obligations under this Agreement in the currency of that Party.

2. In the event that a Party imposes currency controls or other similar measures that restrict payments, remittances or transfers of funds or financial instruments to persons who are outside its territory, that Party shall, without delay, take suitable measures to ensure the payment of any amount that must be paid in accordance with this Agreement to persons described in Article III who reside in the territory of the other Party.

3. If a person requests that his or her benefit under this Agreement be paid on other than a monthly basis (quarterly, semi-annually or annually), the competent institution shall so pay that benefit.

Article XXIV

Resolution of Difficulties

1. The competent authorities of the Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Agreement according to its spirit and fundamental principles.

2. The Parties shall consult promptly at the request of either Party concerning matters which have not been resolved by the competent authorities in accordance with paragraph 1.

3. Any dispute between the Parties concerning the interpretation of this Agreement which has not been resolved or settled by consultation in accordance with paragraph 1 or 2 shall, at the request of either Party, be submitted to arbitration by an arbitral tribunal.

4. Unless the Parties mutually determine otherwise, the arbitral tribunal shall consist of three arbitrators, of whom each Party shall appoint one and the two arbitrators so appointed shall appoint a third who shall act as president; provided that if either Party fails to appoint its arbitrator or if the two arbitrators fail to agree, the competent authority of the other Party shall invite the President of the International Court of Justice to appoint the arbitrator of the first Party or the two appointed arbitrators shall invite the President of the International Court of Justice to appoint the president of the arbitral tribunal.

5. If the President of the International Court of Justice is a citizen of either Party, the function of appointment shall be transferred to the Vice-president or the next most senior member of the Court who is not a citizen of either Party.

6. The arbitral tribunal shall determine its own procedures, but it shall reach its decisions by a majority of votes.

7. The decision of the arbitral tribunal shall be final and binding.

Article XXV

Understandings with a Province of Canada

The competent authority of the Republic of Estonia and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada in so far as those understandings are not inconsistent with the provisions of this Agreement.

PART V - TRANSITIONAL AND FINAL PROVISIONS

Article XXVI

Transitional Provisions

1. Any creditable period completed before the date of entry into force of this Agreement shall be taken into account for the purpose of determining the right to a benefit under this Agreement and its amount.

2. No provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of this Agreement.

3. Subject to paragraph 2, a benefit, other than a lump sum payment, shall be paid under this Agreement in respect of events which happened before the date of entry into force of this Agreement.

Article XXVII

Duration and Termination

1. This Agreement shall remain in force without any limitation on its duration. It may be terminated at any time by either Party giving 12 months’ notice in writing to the other Party.

2. In the event of the termination of this Agreement, any right acquired by a person in accordance with its provisions shall be maintained and negotiations shall take place for the settlement of any rights then in course of acquisition by virtue of those provisions.

Article XXVIII

Entry into Force

This Agreement shall enter into force on the first day of the fourth month following the final day of the month in which the Parties shall have exchanged written notices through the diplomatic channel confirming that their respective legal requirements for the entry into force of this Agreement have been completed. The date of the exchange of the written notices shall be the date of the delivery of the last notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in duplicate at Ottawa, this 21^st day of February, 2005, in the English, French and Estonian languages, each text being equally authentic.

Ken Dryden

FOR CANADA

Marko Pomerantes

FOR THE REPUBLIC OF ESTONIA