Carl Hunte v. Superintendent of Financial Services, 2013 ONFST 11

FINANCIAL SERVICES TRIBUNAL

2013 ONFST 11

Decision No. P0510-2012-2

Date: 2013/09/26

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 Make an Order under section 87 of the Act relating to the Pension Plan for Crown Life Insurance Company Employees, Registration Number 0346601 (corrected to Registration Number 1047653);

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.

B E T W E E N:

CARL HUNTE

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

and

THE CANADA LIFE ASSURANCE COMPANY

ADDED PARTY

BEFORE:

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

Jeffrey Richardson Member of the Tribunal and Member of the Panel

Shiraz Bharmal Member of the Tribunal and Member of the Panel

APPEARANCES:

For the Applicant – Maxim Kaploun

For the Superintendent of Financial Services – Mark Bailey

For the Added Party, The Canada Life Assurance Company – Jeff Galway

DATE HEARD:

July 30 and 31, 2013; Written submissions completed August 22, 2013

REASONS FOR DECISION

I INTRODUCTION

1This decision deals with a claim by Carl Hunte (the “Applicant”) that he is entitled to a pension from the Pension Plan for Crown Life Insurance Company Employees, based on service with the company from September 1970 to October 1982.

2That claim was initially refused by the Plan administrator on the ground that its records did not show that the Applicant was entitled to a deferred pension under the Plan. The Applicant then brought his claim to the Financial Services Commission of Ontario seeking an order that the Plan pay him the pension claimed. On August 27, 2012, the Superintendent of Financial Services (the “Superintendent”) issued a Notice of Intended Decision in which he indicated that in his view the Applicant’s entitlements had been paid out of the Plan when he terminated his employment in 1982, and he was therefore not entitled to a deferred pension. The Superintendent notified the Applicant that he intended to refuse to make the order sought. The Applicant filed a Request for Hearing challenging that intended order.

3The Applicant bears the burden of proving that he has a valid claim on the Plan. On the balance of probabilities, we find that the Applicant has not met that burden. We agree with the Superintendent that the Applicant received everything he was entitled to under the Plan when he left the company in 1982. Accordingly, we dismiss the claim and order the Superintendent to proceed with his intended order.

II THE FACTS

4The Canada Life Assurance Company (“Canada Life”) is currently the owner of the Canadian business formerly conducted by the Crown Life Insurance Company, and is the current Plan administrator. It applied for and was granted party status at a Pre-Hearing Conference on December 13, 2012.

5We have been advised that the NOID wrongly identified the Plan as the original Pension Plan for Crown Life Insurance Company Employees, Registration Number 0346601. The assets and liabilities of that plan were transferred on or about 1998 to a new plan, the Pension Plan for Crown Life Insurance Company of Canada Employees, Registration Number 1047653. All parties agreed that we should amend the style of cause in these proceedings to substitute the new Registration Number, and that any order issued against the Plan by the Tribunal or the Superintendent should be made as against the new plan. Accordingly, we have reflected the new Registration Number in our decision.

6The parties filed their evidence in part through a brief Agreed Statement of Facts and an Agreed Book of Documents. To supplement this evidence, the Applicant himself testified in support of his claim, and called seven witnesses, all former employees of the company who testified to various aspects of company personnel and pension practices. Canada Life called one witness, James Savage, currently employed by Canada Life as a pension specialist responsible for administering the Plan. The Superintendent called no witnesses.

7Before reviewing the evidence in detail, it is useful to set out briefly the theory of the Applicant’s case. The Applicant was employed by the Crown Life Insurance Company (the “company”) for two periods of time: from 1970 to 1975, and then again from 1975 to 1982, with a brief hiatus in between when he was employed by another insurance company. He claims that he was a member of the Plan from 1970 to 1975. He claims that when he returned to the company after his period of other employment, the company agreed that he would be treated for pension purposes as if he had never left the Plan: in other words, that he would be treated as a member of the Plan continuously from 1970. He claims that when he finally left the company in 1982, he was entitled to a deferred pension based on some twelve years of service, and did not take his contributions out of the Plan. The Applicant has no documentary records to support his claim.

8Canada Life, supported by the Superintendent, acknowledges that the Applicant was a member of the Plan in the second phase of his employment, from 1975 to 1982. It denies that he was a member of the Plan in the first phase of his employment. It also says that even if he had belonged to the Plan in the first phase of his employment, the Plan did not bridge discontinuous periods of employment, and there was no agreement with the company to credit the Applicant with a pension service date back to 1970. Accordingly, he was properly treated as a new employee for pension purposes when he rejoined the company in 1975. Canada Life claims that when the Applicant left the company in October 1982, he took a Cash Refund Benefit which left him with no further claim on the Plan. Canada Life has a fairly sparse documentary record pertaining to the Applicant’s employment and pension history. Such documents as are available, however, are consistent with Canada Life’s theory of the case, and largely inconsistent with the Applicant’s.

9Certain core facts about the employment history of the Applicant with the company and his membership in the Plan are not in dispute. The Applicant was first employed by the company in 1970 as a policy examiner. He left sometime in 1975 to work for Transamerica, but decided to return to the company a few weeks later. He was rehired by the company with a starting date of September 2, 1975 and remained in the company’s employ until October 29, 1982, with regular salary increases and promotions along the way.

10There is dispute, however, over whether he was a member of the Plan during the first period of his employment, from 1970 to 1975. The Applicant’s testimony was that he joined the Plan in 1970 as part of the routine processing for new employees that took place in the human resources office on his first day of employment. His evidence was that the papers he was given to sign at that time included an application for Plan membership. He was never told pension plan membership was optional; he simply signed the forms that were given to him.

11He testified that he made basic pension contributions throughout this period in the amount of 3.5 percent of salary, and also additional voluntary contributions (“AVCs”) starting in about 1972, first in the amount of about $25 per biweekly pay cheque (about $650/annually) and increasing to about $50 biweekly (about $1300), from a salary ranging from $85/week when he started in 1970 to about $10,000/annum when he left in 1975. He testified that he received annual pension statements which reflected both his basic contributions and his AVCs. As previously noted, however, he did not provide copies of those statements.

12He testified that when he left the company in 1975 to go to Transamerica, he received no documentation from the Plan, and no refund of either basic contributions or AVCs. When asked what had happened to his contributions to the Plan on his departure, he testified that he understood that they would simply be forfeited, but made no inquires of the company at the time.

13We pause to observe here that we find this evidence difficult to accept at face value. The basic contributions and AVCs to which he testified would have been a substantial portion of his income, and he would clearly have been entitled to their full return together with interest under the Plan under the terms of the Plan. It seems unlikely that a policy examiner employed in the financial services industry would have been so careless of his personal financial interests as to simply abandon this amount of money without further inquiry. In view of our ultimate disposition of this matter, however, we need make no finding about what exactly happened when he left the company in 1975, and we do not do so.

14The Applicant testified that he was out of the company’s employ for no more than about ten to twelve weeks. He was unsatisfied with his new job, and as a result of conversations with his prior supervisor at the company, Ken McIntyre, he eventually returned to the company.

15He testified that Mr McIntyre discussed with him the terms on which he would return. His evidence was that after making some inquiries, Mr McIntyre advised him that he would have the same salary as when he left (although not the same job title), and that he would be “grandfathered” in the Plan. Mr McIntyre gave him no details, however, and he understood that the details were the responsibility of the Human Resources Department. On his return to the company, he was processed like a new employee, and signed a new application to join the Plan. He testified that he was again told that his pension would be “grandfathered”, but that the details could not be resolved at that time. According to his evidence, the matter was not resolved until about two weeks later when someone from Human Resources – he was not able to say who – came to him at his desk told him: “Congratulations. Your reinstatement has been approved”. According to his testimony, this person also told him that the company would be taking double deductions from him to make up for the period of his absence.

16This evidence surrounding the terms on which he joined the Plan in 1975 was troublingly vague. The Applicant testified that both Mr McIntyre and human resources told him that his pension would be “grandfathered”. He testified that the unnamed person who came to his desk used the term “reinstatement”. In describing the requirement for double deductions, he testified that the term “buy back” was used. These terms have no precise meaning in pension parlance; they reflect a range of possible approaches to “reinstatement”. As the Applicant now recollects these events, he understood that the company had agreed that his prior contributions and prior service would be fully credited to him, and that he was being required (or permitted) to buy credit in the Plan for the period he had been employed by Transamerica. He cannot point to any specific agreement to that effect, however. Indeed, according to his testimony, the arrangement was never documented, although he testified that the earlier period of service was reflected on the annual pension statements he received during this second period of employment.

17The Applicant testified that he made AVCs during this second period of employment, as he had done in the first, beginning in 1977 and continuing until the company amended the Plan in 1979 to cease accepting them. He recalled these AVCs as ranging from $50-$75 dollars up to $125 per bi-weekly pay period (now from a salary of roughly $12,500 - $14,500 annually).

18The Applicant testified that he left the company on October of 1982 to take a position outside the insurance industry. At that time he would have been thirty-seven years old. His evidence was that although it would have been normal company practice to hold an exit interview, he did not recall having one at the time of his departure. He did recall receiving a document package, although he did not itemize the contents of that package or specify when he received it. However, he testified that he never received any pension package outlining his options under the Plan.

19According to his evidence, the only contact he had with the company about his pension was a phone call on his last day of work from someone in the pensions department – again, he was not able to say who – asking him to meet this person “at the elevator in a few minutes”. At the elevator, the person handed him an envelope and told him that it contained a cheque for the return of his AVCs. His recalled that the cheque was in the amount of approximately $2400.

20He testified that he was not asked to sign any documents at that time, which he thought strange, but did not pursue. In response to a question from the Tribunal, he indicated that he made some effort to “follow up” in the pension department after he left the company, but got no response. He gave no details about these attempts, or what exactly he thought required follow up. All in all, according to his evidence, he simply accepted what was given to him without questioning it or cross-checking it with the annual pension statements which, he claims, reflected service and contributions from his first phase of employment.

21As previously indicated, Canada Life and the Superintendent take the position that the Applicant took a Cash Refund Benefit from the Plan when he left the company in 1982. They also state that his AVCs had been transferred out of the Plan in 1980 into a Group RRSP, and that the Applicant withdrew them from that Group RRSP in 1981. They take the position that these payments were reflected on the Applicant’s tax returns in 1981 and 1982.

22The tax returns were not themselves in evidence; the Applicant was not able to produce them and the Canada Revenue Agency (“CRA”) does not retain them. CRA does, however, retain summaries from 1980 on, and copies of the Applicant’s summaries from 1980 to 1985 were placed in evidence (ABD, Vol. I, Tab 16). The 1981 summary shows that the Applicant received income identified as “other income” in the amount of $1817, and had a tax credit of $181.80. These amounts coincide with amounts shown on company records to have been paid out in 1981 from the Applicant’s account in Group RRSP No. 46201, which had been set up by the company to hold AVCs transferred out of the Plan as a result of Plan amendments effective in 1979 (see the evidence of James Savage, paras. 43 and 44, below). The 1982 tax summary shows an amount of $2,615, characterized as “other pension income”. This amount coincides with the amount identified by Canada Life’s witness James Savage as the equivalent of the Applicant’s return of basic contributions plus interest for the period from September 2, 1975 to July 1, 1979 when the Plan ceased to be contributory (see para. 45, below).

23The Applicant was questioned about his tax summaries for 1981 and 1982 both in his evidence in chief and in cross-examination. He steadfastly rejected Canada Life’s theory of what these documents showed. Ultimately, however, he was not able to provide a satisfactory alternative explanation.

24Although the documents summarized his personal tax returns, he disclaimed any responsibility for the information on them, describing them as documents prepared by the CRA. Questioned about the “other income” item shown in on his 1981 tax summary, he claimed to know nothing about it. He testified to a vague recollection that there had been some trouble with his 1981 tax return, and that CRA had sent him an additional tax bill. He insisted, however, that the only explanation CRA offered for this was that there was a discrepancy between the information in their files and the information on his return. He made no inquiries about the nature of that discrepancy. He likewise disclaimed any knowledge of having transferred his AVCs out of the Plan and into Group RRSP No. 46201. Confronted with the company record showing an account in his name in the Group RRSP, he claimed to know nothing about this. Questioned about the evidence on that record that he had made a withdrawal from the Group RRSP in 1981 in the amount of $1817, he denied asking for any withdrawal, and denied receiving any cheque for $1817 from the RRSP. He insisted that the information reflected in the Group RRSP records was “incorrect”.

25In response to questions about his 1982 summary showing the amount of $2615 as “other pension income”, the Applicant denied that he had declared this or any amount as pension income on his 1982 return (although he did not tell us what tax treatment he gave the cheque he acknowledged receiving). He testified that he used a tax service in 1982, at least in part because of the problems he had encountered in 1981. He did not, however, suggest that this tax service had characterized this money as pension income. When pressed for an explanation for why an amount of “pension income” appeared on his summary, his response was that the company must have sent something in declaring the money as pension income, and the CRA must have used that declaration in preparing the summary information; for his part, he knew nothing about it.

26The Applicant called seven additional witnesses, all former employees of the company. Their evidence was primarily directed towards the issue of company practice with respect to pension plan membership in the period prior to Plan amendments effective July 1, 1979 which made Plan membership explicitly mandatory. They testified to their own experiences when they were hired, and to their understanding about the mandatory nature of Plan membership. Their start dates ranged from 1958 to 1976. We need not review their evidence in detail. Suffice it to say that their evidence generally corroborated the Applicant’s position that new employees throughout this period were given and signed a plan membership application as part of the process of hiring, and that they were not advised that Plan membership was voluntary.

27None of these witnesses, however, directly corroborated the Applicant’s testimony about his personal pension situation. One of his witnesses was Ken McIntyre, the Applicant’s supervisor prior to his departure in 1975. According to the Applicant’s testimony, it was Mr McIntyre who told him that when he returned to the company his pension would be “grandfathered”. Mr McIntyre (who had himself left the company shortly after the Applicant’s return) was unable to confirm this evidence. He could not recall discussions surrounding the Applicant’s departure and return in 1975. He had no recollections about company policy or practice on granting pension credit for periods of prior service. Mr McIntyre was clear, however, that he had no authority to negotiate with the Applicant on pension or other human resource issues, and would not have done so.

28Some of the Applicant’s witnesses gave testimony directed to the issue of company practice in bridging periods of discontinuous employment in the Plan. The Applicant called Sue Lavigne, a former employee who herself received credit for prior service after a brief break in service in the early 1990s. Ms Lavigne was initially hired in 1976. She left in 1991 to work for a government agency. She was recruited back by her supervisor, Barry Francis. Ms Lavigne testified that she and Mr Francis did not discuss her pension plan membership before she returned, but once she was back and had rejoined the Plan, she was told that her membership would be treated as continuous. She believed that she was simply treated for pension purposes as if she had never left. (Her recollection on this latter point proved to be incorrect; Mr Savage subsequently testified that her pension entry date was adjusted to reflect the five weeks she was not in the company’s employ).

29Barry Francis testified to corroborate Ms Lavigne’s evidence. His testimony was that when she returned to the company, he went himself to the Human Resources Department and requested that she be given credit for past service. He testified that although this was eventually agreed to, it took several weeks to get a response to his request. On cross-examination, he stated that he had no knowledge of company practice on reinstating pension credits; his knowledge was confined to Ms Lavigne’s situation.

30The Applicant also called Pamela MacIntyre to testify more generally on company practice. Ms MacIntyre was a Vice-President, Human Resources when she left in 1999. However, her personal knowledge of pension practice was confined to the period post-1985; although she was hired in 1972, she had no human resource responsibilities prior to 1985. She testified that during the period for which she had responsibility for the Plan, it was company practice to consider requests to bridge short breaks in service for pension purposes on a case-by-case basis, making decisions from the perspective of what would be good for the company. Relevant factors included the length of the break in service, how keen the company was to recruit the old employee back, and whether the employee had left their pension money in the Plan. As she put it, “we would do it for those people we wanted to attract back”. She also testified that she was careful not to violate the Plan documents in making such decisions. It was clear from her testimony that reinstatement was far from routine practice; she testified that there were perhaps five exceptions made that she was aware during the time in which she had human resource responsibilities.

31Canada Life called James Savage as a witness. Mr Savage has been employed by the company since 1987. He is currently a Pension Specialist with responsibility since 1998 for Crown Life staff arrangements, including the Plan and related Group RRSPs. He gave his evidence based on his review of the company and Plan files, and his knowledge of practices and procedures acquired from reviewing company and Plan documents.

32Mr Savage testified that he understood Plan membership to have been voluntary in 1970 when the Applicant was first employed by the company. That understanding was based on his interpretation of the Plan documents, and on evidence in the files of some employees whose Plan entry dates differed from their dates of hire. As an example of such a case, he identified a set of documents extracted from the employee records of a former employee named Deborah and subsequently dubbed “the Deborah documents”. These documents included a form appearing to date back to the 1960s indicating that ‘Deborah’ had opted out of the Plan in 1974 when she was hired. She subsequently joined the Plan in 1981, after it had been amended to make membership mandatory. However, Mr Savage provided no information about actual practice in the pre-amendment era on advising employees about a right to opt out of Plan membership, or about what had happened in the Applicant’s individual case.

33Mr Savage gave testimony about the company’s Document Retention Policy. He testified that it was company practice in the 1970s and 1980s to destroy personnel records, including pension records, seven years after the later of the date of termination of employment, or the date of what he called “release from the pension plan”. If a terminated employee left the Plan with no entitlement to a deferred pension, the member's pension records would be destroyed seven years after termination. If the employee was entitled to a deferred pension, he or she would be issued an annuity certificate specifying the amount and duration of the pension owed, including any guarantee period. That employee’s file would be labelled with a “P”, and the file would then be kept until seven years after the deferred pension obligation was satisfied. The file would contain a copy of the letter to the employee, the individual pension annuity certificate, and the documents reflecting the member’s election, as well as documents reflecting proof of age and any beneficiary forms. Mr Savage testified that there was no such file for the Applicant.

34Full employment records, including pension records, were retained or destroyed in accordance with this policy. In addition, during the 1980s the company also kept a set of microfiche records for all former employees which recorded basic information extracted from the main file. In that set of microfiche records, Mr Savage located a copy of a record relating to the Applicant, headed “Employment History **Terminated Employees ** March 18, 1984 (apparently the date the record was created) (ABD, Vol II, Tab 5). This record (“the Microfiche”) shows the Applicant’s employment date as September 2, 1975 and his termination date as October 29, 1982. It indicates that he had “prior service: 70-75”. It records his pension certificate number as 014822 (the same as his employee number) and shows his “pension entry date” as September 2, 1975. Various other data is recorded there, including his salary levels and increases from April 2, 1978 to January 3, 1982. It contains no other information directly pertinent to his claims. Mr Savage testified that the Applicant’s pension certificate number was consistent with the range of employee/pension numbers issued in 1975, and not with those issued in 1970. There is no similar microfiche record for the Applicant’s first period of employment.

35Mr Savage also located in the company files a copy of what appears to be two sides of a photocopied and not entirely legible Kardex card recording data relating to the Applicant (ABD, Vol II, Tab 6) (“the Kardex”). The Kardex contained both typed and hand-written information, some of which is duplicated on the Microfiche. Handwritten above the September 2, 1975 date of employment is the notation “re-empl”. This record does not contain any information relating to Plan membership. Mr Savage testified that the Kardex predated the system of keeping microfiche records.

36Mr Savage found no evidence in the records that the Applicant had been a member of the Plan during the first phase of his employment from 1970-1975. He also found no evidence that there had been any agreement to give the Applicant credit in the Plan for his period of prior service when he was rehired in September of 1975. If there had been such an agreement, he testified, it would have been reflected on the Microfiche; instead, the Microfiche records the Applicant’s pension entry date as September 2, 1975.

37Mr Savage also testified with respect to company policy on crediting employees with prior service in the Plan. It was his evidence that it was company policy in the 1970s not to give employees who returned to the company after working elsewhere credit for previous periods of service in the Plan. For this evidence, he relied primarily on a document found in the company files and filed as Exhibit 7. This document was a memorandum dated April 18, 1980 and authored by one L.G. Rollerson, identified as Senior Group Vice-President. It is addressed to the Benefit Plans Policy Committee, and titled “RE: CROWN LIFE PENSION PLANS - INTERRUPTED SERVICE”.

38The memo discusses the type of situation that would have occurred when the Applicant returned to the company in September of 1975 after a brief period of employment with another company. According to the memo, company practice at the time was not to bridge (or combine) two periods of service in such situations. The memo referred to the Committee having made two recent exceptions to this policy. It also referred to 73 other situations in which it appears that exceptions were not made. Mr Rollerson expressed the opinion that the policy of not recognizing previous service should be changed, and proposed that it be replaced with a more generous approach. Mr Savage testified that Mr Rollerson’s proposal was not implemented in the 1980s, but that the Plan was ultimately amended in the early 1990s to provide that under certain conditions and with employer consent, earlier service could be combined with current service under the Plan.

39Mr Savage’s attention was drawn to the Applicant’s claim that he had been permitted to “buy back” the ten to twelve weeks during which he had not worked for the company. Mr Savage testified that he had found no evidence in the files that anyone had ever been permitted to “buy back” service in that manner. Where the company did agree to combine periods of service, they dealt with the break by adjusting the pension entry date; this is the approach that was taken in Sue Lavigne’s case.

40While Mr Savage had no personal knowledge of what occurred when the Applicant left the company in 1982, he gave testimony about how a terminating employee’s pension issues would have been processed in the 1980s. He referred to a Procedures Manual (ABD, Vol. II, Tab 7) spelling out this procedure; while this manual dates from the late 1980s, he testified that the procedure was similar in the early 1980s.

41Mr Savage testified that according to procedure, the human resources department would notify the pension department of an employee’s pending termination date. The pension department, after reviewing that employee’s situation, would then generate a letter to the employee spelling out his options. Based on the Applicant’s pension entry date as recorded on the Microfiche, he testified that the Applicant would have been treated as an employee with slightly more than 7 years credit in the Plan. Unless such an employee explicitly elected a deferred pension, he would be deemed to have elected a cash payout. That payout would have been made, and the Plan would then have no further liability to him. This scenario, he testified, was the scenario consistent with the state of the Plan and company records.

42The 1981 Plan also contained certain “locking in” provisions for employees with a minimum of ten years continuous service or ten years membership in the Plan. Mr Savage testified that even if the Applicant had been granted credit for his prior service in the Plan, which would have given him some 12 years service and Plan membership, he would not have been caught by the locking-in provisions, because the company applied them only to employees 45 years and older. When the Applicant left the company, he was only 37 years old.

43Mr Savage was asked to comment on the Applicant’s evidence that he was told that the cheque he received from the Plan on his departure from the company represented a return of his AVCs. Mr Savage testified that according to company records, the Applicant had no AVCs in the Plan by 1982. Amendments to the Plan effective July 1, 1979 converted the Plan to a non-contributory Plan and terminated the right to make AVCs to the Plan. Employees with AVCs already in the Plan were encouraged at that time to transfer them to Group RRSP No. 46201, registered by the company for that purpose. In the 1981 restatement of the Plan, effective January 1, 1981, this transfer was made compulsory.

44Mr Savage’s search through the company records retrieved a microfiche record relating to the Applicant, identified as part of the records of Group RRSP Policy No. 46201 (ABD, Vol. II, Tab 9). This document shows an entry date for the Applicant of February 21, 1980. It indicates that a gross payout of $1817.95 (with tax of $181.80), was made on December 23, 1981, with no balance remaining in the Group RRSP after the payout. As interpreted by Mr Savage, this record shows that the Applicant transferred his AVCs from the Plan to the RRSP in 1980, and then cashed them out in 1981. This RRSP cashout would explain the information reflected in the Applicant’s income tax summaries showing “other income” of $1817 in 1981 (with a corresponding tax credit of $181.80).

45Canada Life has no records confirming that the amount received by the Applicant from the Plan when he left the company in 1982 was a return of his basic contributions. Through Mr Savage, however, it offered a reconstruction of what the Applicant’s pension contributions would have been from September 1975 when the Applicant commenced his second period of employment to July 1, 1979 (when the Plan ceased to be contributory), together with interest to his date of termination. Most of the salary information used in this reconstruction was available from the extant records; where it was not, the reconstruction assumes that salaries throughout that period increased in accordance with the Consumer Price Index. The reconstructed value comes out to precisely $2615, the figure reflected as “other pension income” on the 1982 tax summary.

46Mr Savage found no evidence that the Applicant had ever been considered as a deferred pensioner. He testified that the Plan kept an on-going and updated list of the names of deferred plan members. He produced four of these lists from the early 1990s, and confirmed that the Applicant’s name did not appear there, as it would have if the Applicant were entitled to a deferred pension. He also testified that when assets and liabilities of the Plan were calculated in connection of the Plan wind-up which preceded the transfer to the current Plan in 1998, no liability to the Applicant was reflected because the Plan had no record that he was entitled to a deferred pension.

47Overall, Mr Savage’s testimony confirmed that the company and Plan records revealed nothing whatsoever to indicate that the Applicant had an entitlement to a deferred pension from the Plan.

III ISSUES AND THE POSITIONS OF THE PARTIES

48The issue in this case, as stated by the parties at the pre-hearing conference, is as follows:

Is the Applicant entitled to a deferred pension or any other entitlement from the Plan, and if so, in what amount?

The parties have agreed that the Tribunal should address only the first part of this issue in this decision: the issue of whether the Applicant is entitled to a deferred pension or any other entitlement from the Plan. If we decide that he has such an entitlement, the parties agreed that we would then reconvene to address the issue of quantum.

49The Applicant’s basic position is that he is entitled to a deferred pension under Section VIII of the 1981 Plan. (The relevant text of Section VIII is set out in para. 63, below). He claims that he is entitled to credit for twelve years of service in the Plan, which would qualify him for a fully vested pension.

50His claim to twelve years’ service rests on his claim that he was a Plan member during the first phase of his employment as well as during the second phase of his employment. He acknowledges that he terminated his employment in 1975 and that he was rehired as a new employee when he returned in September 1975. He nevertheless argues that his two periods of employment should be treated as continuous for purposes of the Plan because:

a) There was an explicit agreement with the company in 1975 to give him credit in the Plan for service back to his original date of hire. (He describes this in his written submissions as an agreement to grant him a retroactive authorized leave of absence under Section XV of the 1971 Plan);

b) It was company practice to give credit for prior service; this practice was so common that the company has waived any right to deny that the Applicant should be treated as a Plan member from 1970; and

c) A short break in service does not, as a matter of law, interrupt continuous service.

51The Applicant argues that he did not take his contributions out of the Plan. In addition, he argues that he could not have taken his contributions out of the Plan because his benefits were locked in under the terms of Section VIII-A (The relevant text of Section VIII-A is fully set out in para. 76 below).

52Finally, although the Applicant argues that the Plan clearly and unambiguously supports his position, he submits that if we disagree on that point, we should apply the contra proferentum principle, and construe the Plan against the interests of the company, its drafter: National Steel Car Limited v. Ontario (Superintendent Financial Services), 2007 ONFST 3; Milner v. Manufacturer’s Life Insurance Company, [2006] B. C. J. No. 2787 (Sup. Ct.).

53In the alternative, he argues that if the company paid his contributions out of the Plan in 1982, it did so in violation of its fiduciary duty to administer the Plan properly in accordance with its terms, and to inform him fully of his rights and options under the Plan. In these circumstances, he argues that any return of his contributions should not be held to undermine his claim.

54Canada Life and the Superintendent (the “Responding Parties”) take a very different view of both the facts and the law. First and foremost, they argue that the burden of proof of any entitlement under the Plan lies squarely on the Applicant. They argue that he has failed to meet that burden on key factual issues, in particular that he left his basic contributions in the Plan when he terminated his employment in 1982.

55The Responding Parties take the position that the Applicant was properly treated as a Plan member only from September 2, 1975 and therefore had only some seven years service in the Plan when he left the company in 1982. Either by election or default, they argue, he was paid out his contributions as a Cash Refund Benefit and had no remaining entitlement under the Plan. They argue that Section VIII-A of the Plan, the locking-in provision, has no application to his case even if he can establish that he had ten or more years of service or Plan membership, since he was only 37 years old, and only members 45 years and older at the time of termination were locked in.

56They argue that the Applicant has failed to prove that the company violated the Plan or any of its fiduciary obligations. In addition, the Superintendent argues that even if such violations were established, the Applicant would have no remedy from this Tribunal; his recourse would be a civil claim in the courts for breach of fiduciary duty.

IV ANALYSIS

The Burden of Proof

57The Applicant’s evidence depends entirely on his recollections of key events that took place some thirty to forty years ago. The witnesses he called in support of his claim had little, if any, personal knowledge of his employment history or his history with the Plan, and where they might have had such knowledge at one time, they could no longer recall it.

58The Applicant has provided no documentary evidence to corroborate his recollections, although according to his testimony, documents such as annual pension statements existed at one time that would have reflected his version of events. It is not entirely clear what became of these documents, although it appears that they disappeared from storage in a public warehouse a number of years ago.

59In his written submissions, the Applicant attempted to shift the burden of the absence of documentation wholly onto the company. He argued that Canada Life, as Plan administrator, had a fiduciary obligation to retain its documentation, and invited us to draw the adverse inference that if the relevant documents had been produced, they “would have likely been favourable to the Applicant’s position” (Applicant’s Written Final Submissions, paras. 79 & 89). Indeed, he goes so far as to assert that Canada Life’s failure to produce documentation reverses the normal onus of proof. He argues that “the onus is on Canada Life as the current Plan administrator to show that, on a balance of probabilities, [the Applicant] was not a member of the Plan from 1970 to 1975” (Applicant’s Written Final Submissions, paras. 79 & 89), and that “the onus and obligation is on Canada Life, as Plan administrator, to show that Mr. Hunte was fully informed of his rights under the Plan and/or provide evidence either that he made an election or failed to do so after 30 days” (Applicant’s Written Final Submissions, para. 63).

60We do not accept these submissions. The fundamental burden of proof that an applicant has an entitlement from a pension plan is on that applicant. That burden does not shift. It is possible, of course, that if the evidence of the party bearing the ultimate burden of proof raises a prima facie case that must be answered, what is usually called “the evidentiary burden” may shift to another party in the course of a hearing. But in our view, the Applicant has failed to adduce evidence sufficiently persuasive to shift the evidentiary burden, particularly on the key issue of whether he took a Cash Refund Benefit in 1982 when he left the Plan. Accordingly, we draw no inference from Canada Life’s failure to produce complete records from the 1970s and 1980s.

61Likewise, of course, we draw no inference from the Applicant’s failure to document his claim; there is nothing inherently improbable about losing personal documents – even important personal documents – over the course of thirty to forty years. But the absence of documentary proof (or other corroborating evidence) places significant obstacles in the Applicant’s path. Without documentary proof, we must assess his evidence and weigh it against other evidence by application of the ordinary tests conventionally used by triers of facts to resolve evidentiary disputes. In the circumstances of this case, this includes an assessment of the credibility of the witnesses, and an assessment of the probabilities based on all the circumstances of the case, including such documents as are available.

The Applicant’s Claim under Section VIII of the 1981 Plan

62The Applicant’s primary claim is that he is entitled to a vested pension under Section VIII of the Plan.

63Section VIII provides as follows:

A member who terminates service with the Employer for any reason other than death, disability or retirement shall receive at his normal retirement date the vested portion of the normal retirement benefit funded by the Employer which had accrued to the member at his date of termination. Such vested portion shall be equal to 20% after 6 full years of service increased by 20% per year for each additional full year of service thereafter. Years of service shall be calculated from the member's date of employment except in the case of a member who has made required contributions and elects the cash refund benefit described in paragraph (a) of this Section. In the latter event, years of service shall be calculated from July 1, 1979.

In addition, the member shall elect one of the benefits described below:

(a) Cash Refund Benefit: The member shall receive an amount equal to his required and supplementary contributions received by the Insurer, together with interest thereon at the rate determined by the Insurer, subject to a minimum of 3% per annum, compounded annually from the date of deposit to the first day of the month in which the cash refund is paid.

(b) Deferred Retirement Benefit: The member shall leave his contributions with the Insurer and receive at this normal retirement date a retirement benefit equal to the amount which can be purchased from the Insurer at the member’s date of termination by such contributions together with interest thereon.

If the monthly deferred retirement benefit payable to the member in accordance with this Section is $25.00 or less then the member must elect the cash refund benefit. This option will also be deemed to have been elected by a member who has not notified the Employer otherwise, within 30 days of his date of termination of service.

64Under Section VIII, an employee is entitled to a partially vested pension if he can establish at least six years of service at the time of termination. If he can establish ten or more full years of service at the time of termination, he would be entitled to a fully vested pension.

65Much of the evidence and argument was directed toward the question of whether the Applicant should be credited with service in the Plan for the first phase of his employment as well as the second phase of his employment: in other words, whether he had twelve full years of service (dating from 1970), or only seven full years of service (dating from 1975). As we read Section VIII, however, that issue is a secondary issue, relevant only to the quantum of pension if the Applicant can establish that he is entitled to any pension at all. Under the terms of Section VIII, the key to his entitlement is not how much service he had accumulated in the Plan at the time of termination, but whether he removed his contributions from the Plan at the time of his termination. If he did remove his contributions, he had no vested entitlement whatsoever when he left the Plan, regardless of how much service he had accumulated.

66The reason for this lies in the somewhat idiosyncratic approach taken in Section VIII to the determination of length of service. For most of the time the Applicant was employed by the company, the Plan was a contributory plan. It was converted to a non-contributory plan effective July 1, 1979. Accordingly, members who joined the Plan prior to July 1, 1979 would have made required contributions, and those contributions would still be in the Plan. Under Section VIII, terminating employees who had made contributions and whose benefits were not locked in (an issue we will deal with later in these reasons) were given the option of removing those contributions as a Cash Refund Benefit or leaving them in the Plan. If they took the Cash Refund Benefit, they effectively cashed out all their service prior to July 1, 1979. They would then be treated for pension purposes as if they had been hired on July 1, 1979, and only service accumulated after that date would count towards a deferred pension. The date on which their service actually commenced would become irrelevant.

67Under this system, a member who terminated his employment in October of 1982 and took his contributions out as a Cash Refund Benefit would be credited with only three full years of service in the Plan. This would not be sufficient to give him any vested benefit, and the Plan would have no further liability to him. According to the Responding Parties, this is what happened to the Applicant.

68The key question, then, is what occurred when the Applicant left the Plan in 1982. If he took a Cash Refund Benefit, he would no longer be entitled to a pension. We find that he did take a Cash Refund Benefit.

69The Applicant does not dispute that he received a cheque from the Plan when he terminated his employment. His recollection, now more than thirty years old, is that he was told that the cheque was a return of AVCs. Canada Life’s evidence has established to our satisfaction that it was not a return of AVCs. By October of 1982, the Applicant would have had no AVCs in the Plan; he had already transferred them to the Group RRSP, as he was required to do, and cashed them out in 1981. We cannot accept the Applicant’s denial that this occurred. He is unable to supply any credible alternative explanation for the proven facts. He is unable to explain the “other income” entry on his 1981 tax summary, or why it coincides with his RRSP withdrawal record right down to the matching tax credit. To accept his evidence on this issue, we would have to accept that the company transferred his AVCs to the Group RRSP without his knowledge or consent, subsequently withdrew them from the Group RRSP without his knowledge or consent, and then compounded its unauthorized cash-out by failing to give the Applicant the cash, even though it documented the withdrawal to CRA. All of this is highly improbable. In the absence of a plausible alternative explanation, we accept the accuracy of the documentary record which confirms that by 1982 the Applicant had no AVCs in the Plan.

70If the cheque he received was not a return of AVCs – and we have found that it was not – it can only have been a return of basic contributions – a Cash Refund Benefit, to use the language of Section VIII. Canada Life’s evidence has shown that a Cash Refund Benefit for the Applicant calculated according to the 1975 pension entry date which shows on the company records would have totalled $2615.95 as of the Applicant’s date of termination. An amount of $2615 is reflected as “other pension income” on the summaries of the Applicant’s tax return for 1982. He has provided no alternative explanation for that entry.

71We are persuaded on the balance of probabilities that the cheque the Applicant received was a Cash Refund Benefit from the Plan. He denies that he asked for one; in fact, he maintains that he was given no pension election forms, and signed none. This seems unlikely. According to Canada Life’s evidence, it was standard procedure to prepare and provide these forms when a Plan member was about to terminate, and there does not appear to have been anything unusual about the Applicant’s departure which would account for a deviation from standard procedure. If he had filled out an option form and elected a Cash Refund Benefit, he might well have been given a cheque for that refund on his last day of work.

72But for purposes of the application of Section VIII, we do not need to make a determination on the factual question of whether the Applicant signed a formal election. In a paragraph located under the two options available, the Cash Refund Benefit and the Deferred Retirement Benefit, Section VIII of the Plan contains the following provision:

If the monthly deferred retirement benefit payable to the member in accordance with this Section is $25.00 or less then the member must elect the cash refund benefit. This option will also be deemed to have been elected by a member who has not notified the Employer otherwise, within 30 days of his date of termination of service.

73The Applicant argues that this paragraph applies only to members whose deferred pensions would be less than $25 a month. We cannot accept that interpretation. The first sentence of this paragraph clearly applies only to monthly pensions of $25 or less. But the second sentence can only apply to all situations; otherwise, it would be completely redundant. It is intended to make the Cash Refund Benefit the default option for all cases.

74The Applicant does not claim to have elected a Deferred Retirement Benefit. Accordingly, he would have been given a Cash Refund Benefit regardless of whether or not he specifically opted to receive it. We find that he did receive a Cash Refund Benefit. This would trigger a readjustment of his service date to July 1, 1979. He would have had three full years service when he left the company in October of 1982, and no vested benefits. Accordingly, the Plan would have no further liability to him under Section VIII.

75This finding is sufficient to dispose of the Applicant’s claim that he is entitled to a deferred pension under Section VIII. As we have previously indicated, however, the Applicant takes two alternative positions: first, that his entitlements were locked in under Section VIII-A and could not have been cashed out; and (2) if he did withdraw his entitlements, he did so only because he was not properly advised by the company. We turn now to those two arguments.

Section VIII-A: The Locking-In Argument

76Under the Plan, the normal options offered to a terminating member under Section VIII do not apply to those members whose benefits are locked-in under Section VIII-A of the Plan. The Applicant argues that Section VIII-A applies to him, and he should therefore not have been a given a Cash Refund Benefit.

77The part of Section VIII-A immediately relevant to the Applicant provides as follow:

Notwithstanding anything to the contrary contained in the foregoing Section VIII, the vesting rights of a member employed in Nova Scotia, Quebec, Ontario or Alberta shall be subject to the provisions of any provincial or federal government legislation as set out below:

In the event that the member has attained 45 years of age and has completed a continuous period of 10 years in the service of the Employer or has been a member of this plan and the previous plan for 10 years, whichever event shall first occur, all retirement benefits accredited to the member in accordance with the plans shall be fully vested in respect of any such service and the contributions the member has been required to make in accordance with the terms of the plans may not be withdrawn by such member.

A member shall receive a paid-up deferred retirement benefit equal to the benefits vested.

78Section VIII-A clearly applies only to members who have either ten years continuous service with the employer, or ten years membership in the Plan. Whether the Applicant meets either of those qualifications would depend on whether or not he was a Plan member in the first phase of his employment, and/or on the legal effect of his break in service in 1975.

79Before reaching those issues, however, there is a more fundamental question. The Applicant was 37 years old when he left the company in 1982. The Responding Parties take the position that Section VIII-A has no application to Plan Members who are under the age of 45 when they terminate. If they are correct, Section VIII-A cannot apply to him regardless of how much continuous service he had been credited with, or how long he had been a Plan member.

80The Applicant concedes that members whose claims are based on ten years continuous service must be 45 years of age before their benefits are locked in. He argues, however, that the age qualification does not apply to members whose claim is based on ten years of membership in the Plan. He argues that he falls into that category, regardless of whether or not his service is treated as continuous.

81In effect, the Applicant asks us to read the first part of the qualifying sentence in Section VIII-A as if it were structured and punctuated as follows:

In the event that: (1) the member has attained 45 years of age and has completed a continuous period of 10 years in the service of the Employer, or (2) has been a member of this plan and the previous plan for 10 years, whichever event shall first occur,

82This reading is ingenious, but we do not accept it. It is evident from the context that the intent of Section VIII-A was simply to enshrine within the terms of the Plan the vesting requirements of pension legislation then in effect. The heading of Section VIII-A is “LOCKING - IN LEGISLATION”. The section concludes by listing the dates on which “locking-in legislation” came into effect in each of the relevant provinces (for Ontario, 1965). The Section as a whole distinguishes among the rights of Plan members depending on the jurisdiction in which they were employed. It clearly links member rights to the legislation prevailing in those jurisdictions.

83For Ontario Plan members, the “locking in” requirement appeared in what was then s.20(1)(a) of the Pension Benefits Act, R.S.O. 1980, c.373, which provided as follows:

A pension plan filed for registration in accordance with section 17 shall contractually provide that,

(a) a member of the plan who has been in the service of the employer for a continuous period of ten years, or has been a member of the plan for such period, whichever first occurs, and who has attained the age of forty-five years, is entitled, upon termination of his employment prior to his attaining retirement age, or upon termination of his membership in the plan prior to this attaining retirement age, to a deferred life annuity commencing at his normal retirement age equal to the pension benefits (except pension benefits provided by voluntary additional contributions) provided in respect of service as an employee in Ontario or in a designated province,

(i) Under the terms of the plan in respect of service on or after the qualification date,

(ii) by an amendment to the terms of the plan made on or after the qualification date, or

(iii) by the creation of a new pension plan on or after the qualification date.

Similar provisions could be found in the legislation of the other provinces listed together with Ontario in the paragraph on which the Applicant relies. The rule reflected here was generally known as the “45 and 10 rule”.

84The grammar of Section VIII-A of the Plan is certainly more awkward than that of s.20(1)(a) in linking the ‘age 45’ condition to both years of service and years of membership in the pension plan, but in the context of the Plan, we have no doubt that Section VIII-A achieves the same objective as the legislation – no more and no less. The punctuation of the section does not support the Applicant’s interpretation. In addition, there is no logical reason why the company would wish to deviate from the legislative requirement by imposing a vesting condition on those with ten years service which it did not impose on those with ten years Plan membership, particularly since under the Plan and the practice, these two groups would almost completely overlap.

85The Applicant has argued that if we find Section VIII-A ambiguous, we should apply the contra proferentum rule, and opt for the interpretation of the language most favourable to Plan members. In our opinion, whether or not Section VIII-A is ambiguous, this is not a case for the application of the contra proferentum rule. That rule has been described as a rule of last resort: York University Faculty Association v. Superintendent of Financial Services (2010), FST Decision Number P0334-2008-1 at pages 10 and 13; National Steel Car v. Superintendent of Financial Services (2007), FST Decision Number P0271-2006-1 at paragraphs 24, 25 and 57; Geoff R. Hall, Canadian Contractual Interpretation Law, 2nd ed., p. 66. It is only to be applied where there are two equally reasonable readings of the language at issue. We do not find the Applicant’s reading reasonable in light of the context in which the language at issue appears.

86In addition, we are not persuaded that the Applicant’s reading is unequivocally more favourable to Plan members, since it not only vests benefits but also locks in employee contributions. From the vantage point of 2013, it certainly appears to favour the Applicant, but in 1982 he might well have taken a different view; indeed, it is probable that he did. He was only 37 years old, and under the terms of the Plan and the law then in effect, he would have had to wait until he was 65 to collect his pension. He, along with other Plan members in his position, might well have preferred the “bird in hand” of a return of contributions to the uncertainty of a pension which he would have had to wait almost three decades to collect, if he lived that long.

87We hold that Section VIII-A applies only to Plan members who have reached the age of 45. Accordingly, it did not apply to the Applicant regardless of how long he had been a Plan member in 1982.

The Fiduciary Arguments: Does the Applicant have any other Entitlements?

88We have found that the Applicant received a Cash Benefit Refund from the Plan when he terminated his employment in 1982. We have also found that payment of a Cash Benefit Refund did not violate Section VIII-A, since that section did not apply to the Applicant. This leaves only the question of whether the Applicant may have some entitlement under the Plan arising from breaches of fiduciary duty.

89The issue of breach of fiduciary duty was not squarely raised in the Statement of Issues. An allegation of breach of fiduciary duty is a serious matter, and in our view such an issue should have been clearly identified from the outset if the Applicant intended to pursue it. The Responding Parties did not object to it being raised at this point, however, and accordingly we propose to deal with it briefly.

90The fiduciary argument emerged most forcefully in the Applicant’s post-hearing submissions. The gist of these submissions was that if the Applicant did indeed receive a Cash Refund Benefit, he did so only because he was not properly informed by the company of his election options and of the consequences of electing a Cash Refund Benefit. In his view, those consequences were so onerous that “no reasonable person” would have made that choice “if they were informed properly” (Written Final Submissions of the Applicant, para. 57). As previously noted, he argued that “the onus and obligation is on Canada Life, as Plan administrator, to show that Mr. Hunte was fully informed of his rights under the Plan and/or provide evidence either that he made an election or failed to do so after 30 days” (Written Final Submissions of the Applicant, para. 63).

91In his reply submissions, the Applicant further expanded his fiduciary claim. He argued that if he had been properly informed of how his pension was being handled at the time of termination, he would have known that the company had failed to credit him with service accumulated in the first phase of his employment, and he would have been able to contest that issue at a time. He charges that “Crown Life’s failure to properly inform [him] about the way in which his entitlement was being calculated deprived [him] of the opportunity to marshal all the evidence that would have been at his disposal in 1982” (Reply Submissions, para. 29(c)).

92In addition, he argued that “the lack of effort on the part of Crown Life to maintain any basic record should be considered a serious violation of Section 22 of the Act” (Reply Submissions, para.27).

93As noted previously, the Superintendent argued that even if fiduciary violations were apparent, we have no jurisdiction to deal with them. In light of our disposition of these allegations on their merits, we need not address that issue. We find that the Applicant has not proved any fiduciary violations on the balance of probabilities.

94We are not persuaded that the Applicant’s recollections of how his pension issues were processed at the time of his termination accurately reflect what occurred. Mr Savage’s testimony established that the company had a detailed protocol which it followed for processing terminating employees who were members of the Plan. This involved examining the employee’s circumstances, generating a set of pension options tailored to the employee’s situation, and setting those options out in a letter to the employee. In our view, it is more probable than not that this procedure was followed in the Applicant’s case, and the Applicant’s testimony has not persuaded us otherwise. It defies probability that the company would deviate so significantly from normal procedure in the absence of very special circumstances, none of which appear to be present in this case. It defies common sense that the Applicant, a veteran of the financial services industry, would not have raised pointed questions about a complete failure to inform him about his rights under the Plan, or to document the terms of his departure from the Plan. The Applicant testified that he did receive a package of documents in connection with his termination. If he received a cheque for his Cash Refund Benefit on his last day of employment – and he may well have – it is almost certainly because he had already made his election, perhaps in the course of an exit interview which he no longer recalls, or perhaps by signing a form included in that package of documents. It is not possible to say whether he fully understood the implications of his choices at that time, but based on his own evidence, he made no serious effort to get more information. In this context, the Applicant’s uncorroborated recollections, now thirty years old, are simply not sufficient to impose an evidentiary onus on the company to prove exactly what steps it took to inform him of his pension options in 1982.

95We are also not persuaded that there were defects in the company’s record-keeping system of sufficient gravity to raise fiduciary concerns. James Savage provided a clear and credible explanation of the company’s record retention policies, which appear to us to be reasonable in light of its legal obligations in the 1970s and 1980s. That policy appears to have been consistently applied in the case of the Applicant’s records, despite the Applicant’s vigorous attempts to identify discrepancies. Certainly the Applicant led no evidence to establish that the company’s record-keeping policies fell short of the industry standards of the day. In retrospect, the company may wish it had adopted a more defensive policy. We are not, however, prepared to draw any adverse inferences against it for failure to do so.

96Accordingly, we dismiss the Applicant’s fiduciary claims.

The Issues With Respect to Plan Membership and Continuous Service

97In light of our disposition of the other issues, it is not necessary for us to address the questions of whether the Applicant was a Plan member during the first phase of his employment, and whether he should have been treated by the Plan as a member continuously from 1970 to 1982, and we make no definitive findings on those issues.

98As a courtesy to the several witnesses who attended to testify for the Applicant on the Plan membership issue, however, we will say that if we had been required to make a finding on whether the Applicant was a Plan member from 1970 to 1975, we would have found on the balance of probabilities that he was. The Applicant testified that he signed a Plan membership application as part of the routine documentation process at the time he was first hired. This evidence was corroborated by the evidence of all of his witnesses that they too joined the Plan in similar fashion, and that they were never told that they did not need to join the Plan. The Responding Parties led no direct evidence to the contrary. Their position that the Applicant was not a member was based primarily on the language of the Plan then in effect, which did not make membership mandatory. The witnesses’ evidence has persuaded us, however, that employees were expected to join the Plan, and were not normally told that membership was voluntary. The “Deborah documents” certainly do not prove otherwise. In fact, the existence of opt-out forms tends to confirm the Applicant’s position that employees routinely joined the Plan; it appears that employees were required to take an affirmative step – signing the opt-out form – if they wished to remain outside of the Plan.

99However, we would not have been so quick to find that the Applicant was entitled to be treated as having continuous service under the Plan from 1970 to 1982. The Applicant’s testimony fell short of establishing an enforceable agreement to credit him with his prior service and to allow him to “buy-back” service for his period of absence. Any such agreement would have been contrary to policy, and a “buy-back” of this sort would have been unique. His evidence on this point was not corroborated by Ken McIntyre, and his own testimony that the agreement was never documented would likely have led us to the conclusion that if there were discussions on this issue, they were never consummated. The Applicant’s argument that short breaks in employment do not disturb continuity of service is not persuasive as a general proposition of law, although it may be so in particular situations. The cases on which he relied for this submission - National Steel Car Limited v. Ontario (Superintendent Financial Services), 2007 ONFST 3 and Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1998] I F.C. 433 (CA) – both involve periods of lay-off, not situations in which an employee had clearly quit and then been subsequently rehired. The facts in those cases bear no resemblance to the Applicant’s situation.

V ORDER

100In accordance with the above reasons, the Application is dismissed. The Tribunal directs the Superintendent to make the decision reflected in its Notice of Intended Decision dated August 27, 2012.