FINANCIAL SERVICES TRIBUNAL
2003 ONFST 5
Decision No. U0216-2003-1
Date: 2003/03/18
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8,
as amended (the “Act”);
AND IN THE MATTER OF a Notice of Proposal to Refuse to Consent
by the Superintendent of Financial Services (the “Superintendent”), dated
January 20, 2003, with respect to an application for withdrawal of money
from a life income fund, locked-in retirement account, or a locked-in retirement
income fund (a “locked-in account”) based on financial hardship;
AND IN THE MATTER OF a Hearing under subsection 89(8) of the Act;
R E A S O N S
- The Applicant in this matter requested a hearing in respect of the Superintendent’s Notice of Proposal to Refuse to Consent dated January 20, 2003, denying the Applicant access to funds associated with a locked-in account. The Applicant had applied to withdraw these funds, pursuant to subsection 67(5) of the Act, which reads as follows:
67.–(5) Despite subsections 1 and 2, upon application, the Superintendent may consent to the commutation or surrender, in whole or in part, of a prescribed retirement savings arrangement of a type that is prescribed for the purposes of this subsection if the Superintendent is satisfied as to the existence of such circumstances of financial hardship as may be prescribed.
- The Superintendent’s ground for denial was that this application (the “Current Application”), which was dated December 12, 2002 and was made on the basis of low income, was made within 12 months after the date of a previous successful application (the “Previous Application”), which was dated August 8, 2002 and was also made on the basis of low income, contrary to the conditions imposed by subsections 89(4) and 89(5) of Ontario Regulation 909 as amended (the “Regulation”), as follows:
89.–(4) Only one application may be made during each 12-month period.
(5) An unsuccessful application is not counted for the purposes of subsection (4).
The issue to be determined by the Tribunal, based on written submissions from the Applicant and Superintendent, is whether or not the Superintendent should have consented to the Current Application.
The Applicant states that his most recent successful application based on low income was the Previous Application signed by the Applicant on August 8, 2002.
On December 12, 2002, the Applicant signed the Current Application, requesting consent to withdraw funds from his locked-in account on the basis of low income. As this application was made within 12 months after the successful Previous Application, which was also made on the basis of low income, the Current Application does not meet the conditions set out in subsections 89(4) and 89(5) of the Regulation.
In his submissions to the Tribunal, the Applicant presented additional evidence of his financial hardship, including copies of an unpaid utilities bill and a demand from his landlord for unpaid rent. However, no matter how serious the Applicant’s financial hardships are, this Tribunal has no authority to direct the Superintendent to allow an application that does not meet the requirements of the Regulation. The Current Application cannot be granted because it fails to meet one of those requirements, in that a previous application was made within the preceding 12 months, on the same basis of low income circumstances. The Tribunal cannot waive this Regulation in this situation, nor can the Tribunal direct the Superintendent to act contrary to this Regulation.
Regarding the possibility of the Applicant making another application now, on the basis of the demand from his landlord for rental arrears, the Superintendent submits that the Applicant cannot apply on this basis until July 2003, 12 months after the date of another previous successful application made in 2002 on this basis.
The Tribunal affirms the Superintendent’s Notice to Propose to Refuse to Consent dated January 20, 2003, regarding the Current Application.
O R D E R
The Superintendent is hereby directed to carry out the proposal contained in the Notice of Proposal to Refuse to Consent, dated January 20, 2003, directed to the Applicant.
Dated at Toronto, this 18th day of March, 2003.
“Kit Moore”
Mr. Kit Moore
Member, Financial Services Tribunal