S.R. v. Superintendent of Financial Services, 2013 ONFST 10

FINANCIAL SERVICES TRIBUNAL

2013 ONFST 10

Decision No. P0511-2012-1

Date: 2013/09/03

IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c. P.8, and 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(2)(a) of the Act relating to the OMERS Primary Pension Plan, Registration Number 0345983;

AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Pension Benefits Act, R.S.O. 1990, c. P.8.

Parties

B E T W E E N:

S.R. APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES RESPONDENT

and

OMERS ADMINISTRATION CORPORATION ADDED PARTY

Panel

BEFORE:

Elizabeth Shilton Vice-Chair of the Tribunal and Chair of the Panel

Patrick Longhurst Member of the Tribunal and Member of the Panel

Shiraz Bharmal Member of the Tribunal and Member of the Panel

Counsel and Submissions

SUBMISSIONS:

For the Applicant – S.R.

For the Superintendent of Financial Services – Deborah McPhail

For the Added Party, OMERS Administration Corporation – Jeff Galway

Hearing Conducted by Written Submissions

REASONS FOR DECISION ON THE APPLICANT’S MOTION TO RESCIND THE WITHDRAWAL OF HER REQUEST FOR HEARING

1On August 7, 2013, the Tribunal commenced a scheduled two-day hearing into the Applicant’s request for a determination on whether she is entitled to spousal benefits from the OMERS Pension Plan. As the morning proceeded, the Applicant, who was self-represented, showed signs of considerable distress. Shortly after she began to give her testimony, she advised that she was going to leave the hearing and go home. She was asked by the Chair whether that meant she was withdrawing her Request for Hearing, and she indicated that she was. The Tribunal then took a fifteen minute recess on its own motion to permit her to consider her position. When the hearing reconvened, she confirmed her decision to withdraw her Request for Hearing. In view of the nature of the issues in the case and the Applicant’s withdrawal, the Tribunal, on consent of all parties, orally confirmed and made permanent its temporary order, made at the teleconference hearing on May 15, 2013 and subsequently confirmed by letter to the parties, to anonymize the names of the Applicant and the deceased former OMERS members involved in her claim (the “anonymization order”). An order was also made pursuant to Rule 11 to keep the record confidential (the “sealing order”). The proceedings were then concluded, and the Applicant subsequently confirmed in writing her decision to withdraw her Request for Hearing.

2Early the next morning, and prior to the Tribunal issuing any written orders, the Applicant made an email request to reopen the matter. That request included a number of submissions, including representations that the Applicant had been under considerable stress over the weekend prior to the commencement of the hearing, and was “overwhelmed” and “sleep-deprived” when she indicated that she wished to withdraw. That first August 8, 2013 email was subsequently supplemented by three other emails to the Tribunal sent throughout the same day, some of which contained attachments which had not yet been filed in evidence. On the direction of the Chair, the emails (without the inappropriate attachments) were forwarded to the full panel, which determined that the package of emails should be treated as a motion by the Applicant to rescind her request to withdraw her Request for Hearing.

3The Tribunal then sought written submissions from the other parties on two questions: (1) whether the Tribunal has jurisdiction to permit the Applicant to rescind her withdrawal; and (2) whether, if the Tribunal has jurisdiction to permit rescission, it should do so in the circumstances of this case. The Applicant was given an opportunity to reply in writing to those submissions. Written submissions from all parties were completed by August 21, 2013.

4In their written submissions, both the Superintendent of Financial Services (the “Superintendent”) and the OMERS Administration Corporation (“OMERS”) submitted that the Tribunal has jurisdiction to permit an applicant to rescind a withdrawal, although the Superintendent’s submissions emphasized the very circumscribed nature of that jurisdiction and the unique circumstances of this case. Both the Superintendent and OMERS also indicated that they would not oppose the Applicant’s request to rescind her withdrawal.

5We do not believe it is useful to review the facts of the case or to analyse the relevant law under these circumstances. We are prepared to permit the Applicant to rescind her withdrawal and proceed with a hearing on the issues raised by her Request for Hearing.

6We emphasize, however, that we do so in the unique circumstances of this case. In particular, we note the following:

a) Under the Tribunal’s Rule 39, a person who has filed a Request for Hearing cannot withdraw that request once a proceeding has commenced without leave of the Tribunal. Under Part XI of the Rules, the Tribunal has the authority to review and to vary or cancel its prior decisions and orders.

b) The Applicant’s request to rescind her withdrawal came to the Tribunal before any formal written Tribunal order had been issued, and in particular before any formal order had been made directing the Superintendent to implement the Notice of Intended Decision which lies at the root of this proceeding.

c) The Applicant’s state of distress at the hearing was apparent to all present. In retrospect, it might have been preferable to adjourn the proceedings to give her more time to consider her position, rather than to permit her to withdraw that morning.

7We also note that the anonymization order and the sealing order made at the hearing were premised on the assumption that the matter was concluded. Now that the matter will be proceeding, those orders are no longer appropriate. Accordingly, we are rescinding those orders under Part XI of the Rules. We will reinstate the temporary anonymization order made by letter dated May 15, 2013 and extend it to the date on which the hearing is recommenced. We will consider at that time (i) whether the anonymization order should be continued during the hearing; (ii) whether the anonymization order should be made permanent; (iii) whether the record should remain confidential during the proceedings; and (iv) whether it should be permanently sealed when the hearing is over. If the matter is not recommenced, we will accept written submissions from the parties as to whether or not the anonymization order and the sealing order we have made today should be made permanent.

ORDERS

8The Tribunal hereby orders that:

a) The Tribunal’s oral acceptance of the Applicant’s request to withdraw her Request for Hearing, made during the hearing on August 7, 2013, is rescinded, and the Applicant will be permitted to proceed with a hearing on the issues raised by her Request for Hearing.

b) The Tribunal’s oral order of August 7, 2013 permanently sealing the record in this matter is rescinded.

c) The Tribunal oral order of August 7, 2013 making its May 15, 2013 anonymization order permanent is rescinded.

d) The names of the Applicant and the deceased former OMERS members referred to in our order of May 15, 2013 will be anonymized in Tribunal materials and in the parties’ written submissions until the hearing recommences, at which time the issue will be reconsidered.

e) The record will be kept confidential until the hearing re-commences, at which time the issue will be reconsidered.

f) The matter will be rescheduled at a pre-hearing teleconference.

The parties should contact the Registrar as soon as possible to indicate their availability for a teleconference to reschedule the hearing.