FINANCIAL SERVICES TRIBUNAL
2011 ONFST 1
Decision No. P0334-2008-2
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended (the "PBA");
AND IN THE MATTER OF a Proposal of the Superintendent of Financial Services to Refuse to Make Orders under section 87 of the PBA requested by the York University Faculty Association respecting the manner in which the Administrator of the York University Pension Plan, Registration No. 0329763, calculates and applies annual adjustments to retirement pensions of the York University Pension Plan;
AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the PBA.
BETWEEN
YORK UNIVERSITY FACULTY ASSOCIATION
Applicant
and
superintendent of financial services and york university
Respondents
and
canadian union of public employees local 3903
Added Party
Decision
Nature of the Application
This matter concerns the jurisdiction of the Tribunal to hear certain issues in connection with the York University Pension Plan (the "Plan").
Background
On July 9, 2010 the Tribunal issued a decision with respect to the manner in which two clauses of the Plan were to be interpreted. The two clauses in question related to the calculation of annual adjustments to pensions in pay.
In its decision, the Tribunal agreed to remain seized of two additional issues referred to by the York University Faculty Association (the "Applicant") as the Mid-year Retirees and Misrepresentation issues. These issues were described by the Applicant as follows:
(i) Mid Year Retirees. There is a dispute between the parties as to the application of the adjustment mechanism to the final determination of the retirement date base pension for mid‑year retirees; and
(ii) Misrepresentation. The Applicant asserts that even if the University interpreted the Plan correctly, it misrepresented the terms of the Plan to members.
The Tribunal made no decision as to whether such issues were properly before the Tribunal or within its jurisdiction and gave the parties 60 days from the date of its decision to make submissions to the Tribunal in respect of its jurisdiction to hear either or both of these issues.
The Tribunal received submissions from the Applicant, York University Faculty Association and from the Respondent, York University, the Administrator of the Plan. The Superintendent of Financial Services agreed with and adopted the submissions of York University. The Canadian Union of Public Employees, added as a party to the original hearing, declined to make any submissions.
In its submissions to the Tribunal in respect of this matter, the Applicant withdrew the Misrepresentation issue and accordingly the only issue for the Tribunal to decide is if it has jurisdiction to hear the Mid Year Retirees issue.
SUBMISSIONS
Both the Applicant and the Respondent agree that the Mid Year Retirees issue was not addressed in the Notice of Proposal issued by the Superintendent on September 11, 2008 (the "NOP") nor was it one of the issues identified at the pre-hearing conference held in respect of the hearing that resulted from the NOP.
The Applicant argues that the Tribunal has jurisdiction to hear the Mid Year Retirees issue on the basis of section 89(9) of the PBA:
89 (9) At or after the hearing, the Tribunal by order may direct the Superintendent to carry out or to refrain from carrying out the Proposal and to take such action as the Tribunal considers the Superintendent ought to take in accordance with this Act and the regulations, and for such purposes, the Tribunal may substitute its opinion for that of the Superintendent.
The Applicant also relies on the decision of this Tribunal dated March 4, 2002 in CBS Canada Co v. Ontario (Superintendent of Financial Services) [2002 Carswell Ont. 2990(F.S.Trib.)], (the "CBS Decision"). The Applicant argues that the CBS Decision supports the argument that the Tribunal has jurisdiction to "address an issue as one of first impression" where it has not been dealt with in the Superintendent's NOP. The Applicant acknowledges the finding in the CBS Decision that in exercising such discretion, "….any direction by the Tribunal to the Superintendent to take particular action, in accordance with the Act or regulations, must be closely related to the subject matter of, or in the circumstances underlying, the proposal that the Tribunal has directed the Superintendent to carry out or refrain from carrying out".
The Applicant further argues that the Rules of Practice and Procedure of the Tribunal clearly contemplate the exercise of discretion on the part of the Tribunal to permit consideration of supplementary substantive issues that are not contained in a Pre-Hearing Conference Memorandum.
16.05 After the pre-hearing conference has been held, no substantive issues, other than those set out in the pre-hearing conference memorandum, may be raised or addressed without leave of the Tribunal.
The Respondent takes the position that the Tribunal does not have jurisdiction in respect of the Mid Year Retirees issue on the basis that the Tribunal is a statutory tribunal whose jurisdiction is defined by and limited by section 89 of the PBA and given that the Superintendent has not made any decision in respect of these issues, the Tribunal has no jurisdiction to deal with the issues.
ANALYSIS
Previous decisions of this Tribunal have accepted that the Tribunal has jurisdiction to make orders which go beyond simply directing the Superintendent to carry out (or refrain from carrying out) the orders proposed in the NOP. However that jurisdiction has not been accepted to be unlimited. (Victorian Order of Nurses for Canada v. Ontario (2009), 78 C.C.P.B. 224 (F.S.T.)) (the "VON Decision").
The general scheme of the legislation is for the Superintendent to conduct a preliminary enquiry to determine whether or not an Order is appropriate before it comes to the Tribunal. Accordingly, we agree with the Tribunal in the VON Decision that the Tribunal must be cautious in taking jurisdictions in circumstances where neither the NOP or the pre-hearing conference memorandum has dealt with the issue.
We do not accept that the Rules of Practice and Procedure create jurisdiction in the Tribunal to hear issues that have not been considered in the NOP or set out in the pre-hearing conference memorandum. Rule 16.05 simply creates the process by which the Tribunal will make a decision as to whether or not to add additional substantive issues (i.e., specific leave must be granted by the Tribunal).
In the matter of the Mid Year Retirees issue, there is no evidence before us to suggest that this matter has been considered by the Superintendent. Indeed there is very limited information before the Tribunal as to the nature of the facts or legal arguments in respect of the Mid Year Retirees issue.
The Applicant has asked us to find that the Mid Year Retirees issue is "closely related" to the annual adjustment issue that was the subject matter of the Tribunal's earlier decision. No facts have been presented to the Tribunal which would allow it to reach such a conclusion and the absence of such facts underscores the need for the Superintendent to make a preliminary enquiry. A preliminary determination by the Superintendent, through an NOP, allows the parties to refine the issue for the Tribunal and further to determine the facts and arguments that need to be submitted to the Tribunal.
The Tribunal therefore concludes that, to the extent that it has discretion to consider an issue not previously considered by the Superintendent in an NOP, it is not appropriate for it to exercise such discretion in this case. Accordingly, the Tribunal finds that the Mid Year Retirees issue is not within its jurisdiction.
We are mindful that our finding does not leave the Applicant without a remedy. The Applicant may request the Superintendent to make an Order pursuant to section 87 of the PBA to the effect that the manner in which the Respondent handles Mid Year Retirees is not in accordance with the Plan. The Superintendent will consider submissions in respect of such an allegation and issue an NOP addressing that allegation. It is only if a hearing is requested in response to the NOP that the Tribunal would have jurisdiction. Any party dissatisfied with the NOP could initiate a proceeding before the Tribunal. It may be that the investigation by the Superintendent may resolve any issues between the parties and the hearing in respect of the Mid Year Retirees issue may not be necessary. The parties should be afforded the opportunity to react to the Superintendent's determination of this issue.
We are also mindful of the consideration raised by the Applicant that there may be inefficiency, undue delay and unnecessary expenses if the matter is referred to the Superintendent however, given the absence of any facts or submissions with respect to this issue before the Tribunal, we do not believe that a referral back to the Superintendent is inefficient in the circumstances.
DECISION
It is the determination of the Tribunal that it does not have jurisdiction to hear the Mid Year Retirees issue with respect to the Plan.
Dated at Toronto this 24th day of January 2011.
"Anne Corbett"
Anne Corbett,
Vice Chair of the Tribunal and Chair of the Panel
"Shiraz Bharmal"
Shiraz Bharmal, Member of the Tribunal and of the Panel
"Paul Litner"
Paul Litner, Member of the Tribunal and of the Panel