CITATION: Hiscocks v. Financial Services Commission of Ontario Tribunal, 2017 ONSC 5456
DIVISIONAL COURT FILE NO.: 16-2227 DATE: 201709/15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
M.G. Quigley, Matheson and Raikes JJ.
BETWEEN:
CHRIS HISCOCKS
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO TRIBUNAL AND SUPERINTENDENT OF FINANCIAL SERVICES and DRS TECHNOLOGIES CANADA LTD.
Respondents
Chris Hiscocks, Self-Represented
Deborah McPhail, for the Superintendent of Financial Services
Jennifer McAleer, for DRS Technologies Canada Ltd.
HEARD at Ottawa: September 13, 2017
Matheson J. (Orally)
[1] The Applicant seeks judicial review of a Decision of the Financial Services Tribunal dated March 15, 2016.
[2] The Applicant is a retired employee of the Respondent DRS Technologies Canada Ltd. He currently receives a pension from the DRS pension plan, in which he was enrolled effective January 1, 2004. DRS denied the Applicant’s request to retroactively purchase membership in the DRS Plan for the period from October 29, 1997, to December 31, 2003. The Tribunal denied the Applicant’s request that it direct the Superintendent of Financial Services to permit him to retroactively purchase that pensionable service.
Brief Background:
[3] From 1979 to 1997, the Applicant was employed with Spar Aerospace Limited. The Applicant was eligible to join Spar’s pension plan after 12 months of employment. He decided not join the Spar Plan.
[4] On October 29, 1997, DRS purchased the assets of Spar. The Applicant’s employment was transitioned from Spar to DRS.
[5] The DRS pension plan covered transferred employees from Spar who, as of October 29, 1997, participated in or were eligible for, or who were in the process of satisfying eligibility requirements for, the Spar Plan. The Applicant was eligible to join the DRS Plan upon becoming employed with DRS. He did not join at that time.
[6] In April 2004, the Applicant applied to enroll in the DRS Plan. He was enrolled effective January 1, 2004.
[7] In 2013, the Applicant also sought but was refused retroactive membership covering the period prior to his enrolment in January 2004, back to October 29, 1997.
[8] The Applicant alleges that when DRS acquired the Spar business in 1997, it contravened s. 25 of the Pension Benefits Act, R.S.O. 1990, c. P.8, which required the pension plan administrator to provide written information about the plan to certain employees who were not yet members of the plan. The Applicant did not receive a s. 25 notice.
[9] Under s. 87 of the Pension Benefits Act, the Superintendent of Financial Services may make an order requiring a plan administrator to take certain action where a pension plan is not being administered in accordance with the Pension Benefits Act. This process was invoked by the Applicant, who sought an order requiring DRS to allow him to retroactively purchase membership in the DRS Plan for that 1997-2003 time period.
[10] The Superintendent gave Notice of Intended Decision dated April 10, 2015. The Superintendent indicated that he would refuse to exercise his discretion under s. 87 of the Act to make the requested order. The Superintendent’s reasons indicated that even if the s. 25 notice requirements had not been met, the Applicant was aware of the DRS Plan and his right to join it.
[11] The Notice of Intended Decision also gave the Applicant notice of his right to a hearing before the Financial Services Tribunal. The Applicant requested a hearing.
[12] Under s. 89(9) of the Act, the Tribunal may direct the Superintendent to make or refrain from his intended decision, or take other action. Like the decision of the Superintendent, the Tribunal’s decision is a discretionary decision.
[13] The Tribunal hearing took place in January 2016. Evidence was put forward in an Agreed Statement of Fact and through two witnesses; specifically, the Applicant and a Human Resources (“HR”) person from DRS testified before the Tribunal.
[14] The Tribunal released its decision on March 15, 2016. The Tribunal denied the Applicant’s request that it require that the Superintendent order the retroactive membership in the DRS Plan. The Tribunal held that there was no breach of s. 25 of the Act because that section did not apply to the Applicant. The Tribunal also found that the requested remedy of retroactive membership was not available in any event.
[15] The Tribunal made findings of fact. The Tribunal found, among other things, that even if DRS had contravened the notice requirements in s. 25, the Applicant knew about the Plan. The Tribunal found that the Applicant preferred to pursue alternative investment strategies for his retirement and took no action regarding the DRS Plan until 2012. The Tribunal found that there was no evidence that the Applicant would have joined the DRS Plan in 1997 if he had been given formal notice under s. 25.
[16] That Tribunal found that even if s. 25 had been contravened, “we do not think the facts of this case warrant an exercise of discretion in the Applicant’s favour.”
[17] The Tribunal ordered that the Superintendent’s intended decision, to refuse to exercise his discretion to make an order in favour of the Applicant, be carried out.
[18] This Application for Judicial Review was commenced on July 26, 2016.
Issues/Standard of Review
[19] The Applicant raises a number of issues, which we have grouped as follows:
(1) Whether there was a breach of natural justice or procedural fairness.
(2) Whether the Tribunal erred in making certain findings of fact without evidence.
(3) Whether the Tribunal made reviewable errors in the exercise of its discretion.
(4) Whether the Tribunal’s interpretation of s. 25 of the Act was correct.
(5) Whether the Tribunal had jurisdiction to grant the requested remedy under s. 87 of the Act.
[20] The Applicant properly cites the case of Dunsmuir v. New Brunswick, 2008 SCC 9 regarding the standard of review. The standard of review applicable to questions of mixed law and fact, as well as the Tribunal’s exercise of its discretion, is reasonableness. The standard of review with respect to pure statutory interpretation is correctness.
[21] An additional issue has been raised by the Respondents in this case. Specifically, the Respondents have raised the Applicant’s failure to exhaust his appeal rights in a timely way or at all as a complete answer to this Application for Judicial Review.
[22] The Respondent DRS asks this Court to dismiss this Application for Judicial Review because the Applicant has not exercised a right of appeal available to him under s. 91 of the Pension Benefits Act. DRS further submits that the Applicant is out of time in that the right of appeal ought to have been exercised within 30 days of the date of the Tribunal decision. The Respondent Superintendent has raised these issues as well.
[23] Section 91 of the Pension Benefits Act does provide a right of appeal from the decision of the Tribunal. That appeal is to this Court and ordinarily should have been brought within 30 days. Here, the Applicant has brought, instead, an Application for Judicial Review and has done so within about 4 ½ months after the Tribunal decision.
[24] We will address this issue first. Applying the principles set out in Pellow v. Royal College of Dental Surgeons, 57 A.C.W.S. (3d) 147, 1995 O.J. No. 2398, 1995 (Div. Ct.), at para. 7, there are no special circumstances in this case, in our opinion, which would justify a departure from the general rule that certiorari should not be granted when the party aggrieved has a right of appeal that was not taken advantage of and has expired. Based on the record before us and the Applicant’s submissions today regarding the relevant circumstances, we are not persuaded that there are the required special circumstances.
[25] The Application for Judicial Review should therefore be dismissed on this basis. We would dismiss the Application for Judicial Review on the merits as well and will briefly set out those reasons for decision.
- Was there a breach of natural justice or procedural fairness?
[26] In this application for judicial review, the conduct that would form the foundation for a claim of breach of natural justice or procedural fairness would be conduct of the Tribunal. The only conduct of the Tribunal raised, which was raised in oral submissions, was the submission that the Tribunal ought not have accepted the evidence of the HR witness, who was said in oral submissions to have been biased. The Applicant has shown no foundation for this allegation of breach of natural justice.
[27] The Applicant appears to also focus on the conduct of DRS toward him as an employee and appears to rely on the concept of a duty of care owed to him by DRS. He relies in his factum and oral submissions on both the law of negligence and on the law of fiduciary duty. These submissions do not provide a foundation for a breach of natural justice or procedural fairness by the Tribunal.
- Did the Tribunal err in making certain findings of fact without evidence?
[28] The Applicant submits that the Tribunal made its findings about his knowledge based on no evidence. Similarly, the Applicant submits that the Tribunal speculated about the Applicant’s knowledge of the DRS Plan.
[29] These submissions have not been established. The Tribunal had significant evidence before it upon which it made its findings, including the Applicant’s own testimony. The Tribunal had an evidentiary basis for the factual findings that the Applicant challenges, including the finding that he knew about the DRS Plan. Based on the evidence before it, the Tribunal reasonably concluded that the Applicant knew he was eligible for immediate membership in the DRS Plan prior to the time of the sale of the business and on his acceptance of the offer of employment from DRS in October 1997. This specific finding is set out in the Tribunal’s Reasons for Decision.
- Did the Tribunal make reviewable errors in the exercise of its discretion?
[30] The Tribunal held that even if s. 25 had been breached, it would not have exercised its discretion in favour of the Applicant.
[31] The Applicant submits that the Tribunal focused on irrelevant factors in the exercise of its discretion, including aspects of the Spar Plan, the Applicant’s eligibility for the Spar Plan, the fact that two former Spar employees joined the DRS Plan and that the fact that the Applicant did not attend certain information sessions. The Applicant further submits that the Tribunal ignored the relevant statutory requirements.
[32] We do not agree that the above facts are irrelevant, they relate to the Applicant’s eligibility to join the DRS Plan and to his knowledge of that eligibility. Further the Tribunal set out the relevant statutory framework at paras. 9-22 of its decision. Accordingly it did not ignore the statutory requirements as suggested by the Applicant. The Applicant has failed to establish that the Tribunal made a reviewable error in the exercise of its discretion.
- Was the Tribunal’s interpretation of s. 25 of the Act correct?
[33] There is no need to deal with this ground.
[34] The Tribunal found that even if s. 25 had been contravened, the facts of this case did not warrant an exercise of discretion in the Applicant’s favour. The Applicant’s grounds for challenging those facts and the exercise of discretion have failed. The decision to refuse the requested relief, even if there was a breach, was reasonable. There is therefore no basis to interfere with the decision of the Tribunal regardless of this additional ground.
- Did the Tribunal have jurisdiction to grant the requested remedy under s. 87?
[35] Given that the Applicant has not established that he would prevail, there is no need to deal with this additional issue.
[36] The Application is dismissed.
Matheson J.
I agree _______________________________
M.G. Quigley J.
I agree ______________________________
Raikes J.
Date of Reasons for Judgment: September 13, 2017
Date of Release: September 15, 2017
CITATION: Hiscocks v. Financial Services Commission of Ontario Tribunal, 2017 ONSC 5456
DIVISIONAL COURT FILE NO.: 16-2227 DATE: 2017/09/15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G. Quigley, Matheson and Raikes JJ.
BETWEEN:
CHRIS HISCOCKS
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO TRIBUNAL AND SUPERINTENDENT OF FINANCIAL SERVICES and DRS TECHNOLOGIES CANADA LTD.
Respondents
ORAL REASONS FOR JUDGMENT
M.G. Quigley, Matheson and Raikes JJ.
Date of Reasons for Judgment: September 13, 2017
Date of Release: September 15, 2017