Ratansi v. Superintendent of Financial Services, 2012 ONFST 16

FINANCIAL SERVICES TRIBUNAL

2012 ONFST 16

Decision No. P0473-2011-2c

Date: 2012/06/08

IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended by the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c.28;

AND IN THE MATTER OF a Notice of Intended Decision of the Superintendent of Financial Services to Refuse to make an Order under section 87 of the Act relating to the Public Service Pension Plan, Registration Number 0208777;

AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Pension Benefits Act;

BETWEEN:

MEHDI RATANSI, FRANK BONI, MERCEDES CHEONG, ROBERT MASCI, DEBBIE MENDES, ALBERT PINTO, DOUG ROBINSON, DILIP SINGH, SUSAN WORONECKI, KEN BROWN, STEVE HUFF, SALLY CARROLL, GREG CORCORAN, KATHLEEN LOVELESS, SIMEON LING, DIANNE SCHEEL, JOHN LUCAS, MARTIN MIKSZA, DAVE NICHOL, BRIAN TAYLOR, EON WELCH, PAT JEYANATHAR, WILLIAM LAU, KEVIN LOCKER, DAN MASSARO, HARRY SINGH, YOGESH SURI, SUGRIM JOHN and KATHLEEN YOUNG

Applicants

• and -

SUPERINTENDENT OF FINANCIAL SERVICES

Respondent

• and –

ONTARIO PENSION BOARD

Party

DECISION ON REQUEST FOR REVIEW

1On May 7, 2012, the Tribunal issued its decision in this matter. On May 24, 2012, the Ontario Pension Board (“OPB”) filed and served a request for review of that decision. Rule 49.06 contemplates that other parties have seven days after such a request is filed and served to make their own submissions in response to the request. In this case, none of the other parties made any submissions.

2The OPB request acknowledged that its request was made after the expiry of the 10-day period provided in Tribunal Rule 49.01 for filing and serving such requests. The OPB asked the Tribunal to exercise its discretion under Rule 49.02 to waive the 10 day time limit. The only justification offered for that request was that “the OPB has required the intervening time to complete its internal review and decision making process and it now appears likely that OPB will appeal the Decision”.

3Rule 49.02 gives the Tribunal discretion to waive the time limit “if satisfied that there is good reason for the delay and that the request has merit.” In our view, no good reason has been offered for the delay. Counsel has not provided any explanation for why OPB could not perform any necessary internal review within the 10-day time limit. The fact that OPB may be appealing the decision in addition to making a request for a review does not explain the delay. On the basis of untimeliness alone, we would be prepared to dismiss the request.

4In addition, however, we are also of the view that the request is without merit. Rule 48.01 provides for the review of “an interim or final order”. The request frankly acknowledges that it is not directed towards our order. As described in the letter, the purpose of the request is “to correct the record with respect to oral submissions”. The OPB believes that paragraph 22 of the decision does not accurately reflect its position or the submissions it put forward at the hearing. For purposes of its proposed appeal, it wishes to see the decision “revised to fairly communicate the position of the OPB”. It has not provided any affidavit or documentary evidence in support of its request.

5As the Tribunal has said on prior occasions, in the normal course, a Tribunal decision or order is final: McGrath v. Superintendent of Financial Services et al, FST Decision No. P0335-2008-3 (“McGrath”); Gay Lea Foods v. Superintendent of Financial Services, Decision No. P0275-2006-6 (“Gay Lea”). While the Tribunal’s Rules of Practice and Procedure permit us to review an order, granting a review is by no means a routine matter. As the Tribunal stated in McGrath, “A Request for Review of a Tribunal order is not an opportunity to reargue the case. There is a strong public interest in the finality of orders.”

6Normally the Tribunal will review a decision only where the applicant has first passed a “threshold test”, justifying a review by providing either new evidence or new arguments not reasonably available at the time of the original hearing. In Gay Lea, the Tribunal observed that where new evidence is relied on, “that evidence must be so cogent that it ‘would be practically conclusive of the case’ in favour of the result sought by the party making the Request for Review” (para.8).

7The OPB here makes no attempt to meet that threshold test. Instead, it seeks merely what it characterizes as a “correction of the record”. As the Tribunal noted in McGrath, quite apart from the review process contemplated in Part XI of its Rules, the Tribunal has “a recognized, although very limited continuing power at common law to correct clerical errors ....codified in the Tribunal’s Rules of Practice and Procedure in Rule 12.03”. Quite properly, the OPB does not rely on this Rule. If there is an error here (a question which we leave to be dealt with through proper appellate channels), it is clearly not a clerical error. Put at its highest, the OPB has raised an issue in relation to a potential misunderstanding or misframing of one of its arguments, as reflected in a single paragraph of the Tribunal’s decision. The OPB acknowledges that making the “correction” it seeks will not change the outcome of the decision.

8In our view, a request of this type does not raise an issue warranting review of our decision. Accordingly, the request for review is dismissed, on the grounds that it is both out of time and without merit.