Weihua Shi v. Superintendent of Financial Services, 2013 ONFST 12

2013 ONFST 12

Decision No. P0515-2013-2

Date: 2013/10/09

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 of the Act relating to the Retirement Plan for Salaried Employees of Holcim (Canada) Inc., Registration Number 0338301;

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.

and

BEFORE:

John Solursh Chair of the Tribunal and Chair of the Panel

Jennifer Brown Member of the Tribunal and Member of the Panel

Shiraz Bharmal Member of the Tribunal and Member of the Panel

For the Applicant – Weihua Shi (the Applicant)

For the Superintendent of Financial Services – Deborah McPhail

For the Added Party, Holcim (Canada) Inc. – Jennifer McAleer

DATE HEARD:

September 6, 2013 and written submissions regarding costs received by September 13, 2013

REASONS FOR DECISION

I. INTRODUCTION

1This case deals with a claim by Weihua Shi (the "Applicant") that, upon termination of her employment with Holcim (Canada) Inc. ("Holcim"), the amount of her Defined Contribution Account (the "DC Account") payable to her under the Retirement Plan for Salaried Employees of Holcim (Canada) Inc. (the "Plan") was incorrectly calculated and included contributions deducted from her pay without her consent after her employment termination date. Moreover, she claims that the account was incorrectly transferred by Standard Life, the Plan's funding agent, to a registered retirement savings plan ("RRSP") issued to her by Canadian Imperial Bank of Commerce ("CIBC") on a non-locked-in basis contrary to her wishes to have it transferred on a locked-in basis.

2The claim was initially refused by Holcim, the Administrator of the Plan, who responded that the deductions of the Applicant's contributions were made in accordance with the provisions of the Plan, the amount of the DC Account was correctly calculated and the DC Account was transferred to an RRSP of the Applicant's choice on a non-locked-in basis in accordance with the provisions of the Plan and the Act. The Applicant then brought her claim to the Financial Services Commission of Ontario seeking an order to correct the transaction. On February 13, 2013, the Superintendent of Financial Services (the "Superintendent") issued a Notice of Intended Decision dated February 5, 2013, notifying the Applicant that he intended to refuse to make the order sought because, in his view, the Applicant's DC Account had been administered in accordance with the Plan and the Act and there had been no violation of the Act. The Applicant filed a Request for Hearing challenging that intended order.

3Upon reviewing the facts of the case, the provisions of the Plan and the application of the Act, we have reached the same conclusion as the Superintendent: that the Applicant's DC Account was correctly calculated and transferred to a non-locked-in RRSP in accordance with the provisions of the Plan and the Act. We therefore dismiss the Applicant's claim and direct the Superintendent to proceed with his intended order. Our reasons follow.

II. THE FACTS

4Holcim is the Administrator of the Plan. It applied for and was granted party status at a Pre-Hearing Conference on June 12, 2013.

5The parties were unable to reach agreement on any facts in advance of the hearing and accordingly presented their evidence at the hearing through oral testimony. The Applicant testified herself in support of her claim and provided a book of documents (Exhibit 1). Holcim called one witness, Larry McNeely, its Director of Human Resources, and provided its book of documents (Exhibit 2). There was a considerable overlap of documents between the two Exhibits and for simplicity, we will refer to Exhibit 1 where the documents are identical. The Superintendent called no witnesses.

6Some of the facts of the case are not in dispute:

a. The Plan is a combined defined benefit/defined contribution plan. It was restated and amended on January 1, 2003, and was then known as the Retirement Plan for Salaried Employees of St. Lawrence Cement. (Plan text, Exhibit 2, Tab 1). On April 15, 2009, St. Lawrence Cement Inc. changed its name to Holcim (Canada) Inc. and the Plan was amended to assume its current name. (Amendment No. 7, Exhibit 1, Tab 11).

b. The Plan is mandatory for regular full-time employees hired on or after January 1, 2003. Employees hired after September 19, 2006 automatically become members of the defined contribution option of the Plan. (Company Resolution dated June 28, 2007; Exhibit 1, Tab 12). Such member is required to contribute 4% of his earnings until the date of termination of service, and these contributions are deposited to his Defined Contribution Account invested with Standard Life; Holcim is also required to contribute 4% of the member's earnings to his account.

c. The Applicant was hired by Holcim¹ effective November 24, 2008, as a Senior Tax Analyst, reporting to A.M., Manager, Taxation. She was informed that participation in the Plan was mandatory. She therefore became a member of the plan effective that date. (Job Offer, Exhibit 1, Tab 1).

d. The Applicant's contributions were deducted from her pay and deposited to her DC Account in accordance with the Plan through to the end of 2009. Holcim deposited equal amounts to her DC Account. Standard Life issued a statement reporting the accumulated amount of her DC Account as of December 31, 2009. (Exhibit 1, Tab 4). There is no dispute as to the correctness of that amount.

7The Applicant testified that at 4:30 p.m. on January 15, 2010, A.M., her supervisor, escorted her to a meeting room and introduced her to Mr. McNeely; A.M. did not utter a single word and left the room. Mr. McNeely handed her a letter notifying her that her employment was being terminated forthwith, without notice, and Mr. McNeely proceeded with explaining the contents of the letter. The Applicant was in a state of shock. The meeting lasted about 30 minutes, and after the meeting, she was escorted back to her work station to collect her belongings and leave the premises.

8The termination letter stated that: her employment was "terminated effective January 15, 2010," she would receive her pay through January 29, 2010, in lieu of the notice she was entitled to under the Ontario Employment Standards Act, 2000, and she would receive vacation entitlement for that period. Appendix B of the letter set out the non-pension benefits she would continue to receive until the end of her statutory notice period, and also described the options she would have to convert some of these benefits to personal plans at her own expense. In Appendix A, she was informed that:

"If you are a member of the HOLCIM retirement plans … you will cease being an active member of these plans on your termination date. You will receive a statement directly from the pension plan administrator (Mercer Group and/or Standard Life) confirming the value of your entitlement under the RRSP and/or RPP along with options available to you in removing your entitlement from the plans. Your entitlement in the Plan will be transferred in accordance with your instructions." (Exhibit 1, Tab 2)

The Applicant concluded that her date of termination was January 15, 2010.

9In his testimony, Mr. McNeely confirmed the meeting and the fact that it lasted about 30 minutes. His account of the meeting differed somewhat from that of the Applicant. According to Mr. McNeely, it was his role as an HR person to counsel A.M. on how to handle the Applicant's termination, especially as it was A.M.'s first termination. As instructed, A.M. brought the Applicant in to the meeting room, told the Applicant that it was her last day at work, wished her well, shook her hand and left the room. Mr. McNeely then proceeded to explain the contents of the termination letter to her and told her that nothing would change regarding her pay and benefits for the next two weeks but that she would not be required to report to work. On the subject of her pension, he told the Applicant that Standard Life would contact her with information and she could leave her pension money with Standard Life or transfer it to another bank. When the Applicant indicated that she did not understand, Mr. McNeely told her to talk to Standard Life and not to do anything until she heard from them. (Later in his testimony, Mr. NcNeely said that Standard Life had been engaged by Holcim to administer the Plan, besides its role as the funding agent.) There was no discussion about locking-in or non-locking-in of the pension money. According to Mr. McNeely, the actual date of termination of the Applicant's employment was January 29, 2010, when her pay and benefits would end. In a later cross-examination, Mr. McNeely conceded that the opening words of the termination letter mentioned January 15, 2010 as the date of termination, but he reiterated that given the continuation of pay and benefits in accordance with the Ontario Employment Standards Act, 2000, the Applicant's employment did not cease until January 29, 2010.

10Following January 15, 2010, the Applicant received two pay stubs from Holcim:

a. Pay Stub dated January 21, 2010 for the pay period January 4 through January 17, 2010. The stub indicates, among other things, a deduction of $138.09 as the Applicant's contribution to the Plan. (Exhibit 1, Tab 3)

b. Pay stub dated February 4, 2010 for the pay period January 18 through January 31, 2010. The stub indicates a deduction for Plan contribution of $125.54 (Exhibit 1, Tab 7)

11The Applicant testified that these two contributions totalling $263.63 ($138.09 + $125.54) should not have been deducted from her pay because they were made after January 15, 2010, the date of the termination of her employment, and were not authorized by her. When it was pointed out to her in cross-examination that most of the pay in the first pay stub related to the period up to January 15, she contended that what mattered was the date of the pay stub, January 21, which was after the termination date.

12On January 21, 2010, and before she received any notification from Standard Life, the Applicant went to the CIBC branch in Mississauga to open an RRSP account to receive her DC Account (Exhibit 1, Tab 5). At the same time, she completed tax form T2151 required under the Income Tax Act (Canada) for transfers of registered account monies, authorizing the transfer of her DC Account to the CIBC RRSP, and indicating that it was an "Ontario Locked In RRSP". (Exhibit 1, Tab 6)

13Subsequently, Standard Life issued a Statement of Options to the Applicant stating her options regarding the DC Account. (Exhibit 1, Tab 8). The termination of employment date was shown as January 29, 2010 in the statement. The total amount of the DC Account at the date of the statement was shown as $8,359.16, made up of equal employee and employer contributions plus/minus investment results. The statement further went on to state that the whole of the account was vested and it was available "on a non-locked-in basis". The statement was marked as having been produced on February 4, 2010; however, the Applicant testified that she did not receive it until April 4. The Applicant further testified that she did not sign the statement as she had already provided her instructions about how she wanted Holcim to deal with her DC Account.

14The Applicant further testified that she followed up with CIBC on April 7, 2010 about the status of the transfer and received a phone call from them on April 9, 2010 that they had received $8,461.44 from Standard Life on a non-locked-in basis. When she showed her form T2151 to CIBC, the staff replaced the locked-in RRSP number by another non-locked-in RRSP number. CIBC did not obtain the Applicant's approval for this change and did not make any correction in spite of various follow-ups in the following three years. This RRSP, with the amount transferred from the Applicant's DC Account is still held by CIBC in her name.

15The Applicant also stated that after she left Holcim, she did not receive any information about her DC Account from Holcim or Standard Life. She could not therefore verify if the Holcim contributions and the contributions deducted from her pay were properly deposited to her DC Account; nor did she get a break-down of those contributions and their accumulation, until closer to the date of hearing when the information was provided to her by Holcim. Mr. McNeely, on the other hand, testified that when an employee becomes a member, Standard Life issues a PIN number to the member. Using the PIN number, the member can access the Standard Life website and obtain information about her DC Account, change investment choices, see employee and employer contributions deposited to the DC Account and utilize retirement planning tools. A member is also given an "800" number which she can use to talk to a Standard Life representative. Standard Life also makes presentations to Holcim staff every year or two about the Plan. In an earlier cross-examination, the Applicant said she did not recall anything about a PIN number to access Standard Life's website nor any Standard Life presentation. She said she "did not pay notice" to pension or contributions until the termination of her employment. Mr. McNeely further testified that employee contributions deducted from pay and matching Holcim contributions were regularly remitted to Standard Life soon after each pay was processed.

16Holcim's book of documents included two final statements respecting the status of the Applicant's DC Account from Standard Life as at March 31, 2010. The first, under the heading of "Corporate Ontario-sub-group 5002" (Exhibit 2, Tab 9) shows an amount of $8,327.88 made up of equal employee and employer contributions plus/minus investment results. It also shows that the amount had been withdrawn. The second statement under the heading of "Sub-Group TERM"(Exhibit 2, Tab 10), shows the same amount of $8,327.88 as having been transferred in, and then being withdrawn after having been adjusted to $8,461.44 with further investment gains. The withdrawn amount from the second statement reconciles exactly with the amount received by CIBC in early April 2010 (see Paragraph 14). The Applicant expressed concern about this unilateral transfer by Standard Life between different accounts and cited it as an example of activity that had propelled her to seek the protection of a locked-in RRSP. However, Mr. McNeely explained that the transfer was only an accounting procedure generally followed by Standard Life to ensure that the active and terminated employees' accounts are properly tracked for fund reporting purposes.

III. ISSUES

17The issues in this case, as determined at the Pre-Hearing Conference, are as follows:

a. What amount is payable from the Applicant's DC Account?

b. Was Holcim required, on termination of the Applicant's employment, to transfer contributions made to her DC Account to a locked-in retirement savings vehicle?

c. Based on the answers to these issues, what order or orders should the Superintendent be directed to make?

IV. PARTY POSITIONS AND ANALYSIS

What amount is payable from the Applicant's DC Account?

18The Applicant argues that the amount of her DC Account calculated and transferred by Standard Life is incorrect.

She takes the position that her employment with Holcim terminated on January 15, 2010, as stated in the first paragraph of the termination letter. Therefore, according to section 12.01(1) of the Plan, quoted below, her obligation to make contributions ceased on that date:

12.01 Member Contributions

(1) Subject to Sections 12.01 (2), 15.01, and 15.02, each Member who is accruing benefits under the Defined Contribution Option shall contribute to his Defined Contribution Account, via payroll deductions, at the rate of 4% of his Earnings until the date of termination of service, death or Normal Retirement Date whichever occurs first.

[Emphasis added]

Holcim, therefore, deducted contributions from her pay after January 15, 2010 incorrectly and without her authorization. Two such contributions were incorrectly deducted: an amount of $138.09 in the pay stub dated January 21, 2010 and $125.54 in the pay stub dated February 4, 2010, amounting to a total of $263.63. This amount should not, therefore, be included in computing the amount of her DC Account. As a consequence, the amount of $8,461.44 calculated by Standard Life as the value of DC Account and transferred to CIBC is incorrect.

19She is not disputing the Holcim contributions made parallel to these contributions. She argues that Holcim was obligated to continue her pay and benefits in lieu of the notice period required under the Ontario Employment Standards Act, 2000 and as long as she received such pay, defined as "Earnings" under the Plan, Holcim was required to make the contributions, whether or not she made any. The employer contribution requirement in Section 12.04(1) of the Plan is by reference only to Earnings, has no cessation requirement similar to member contributions and the concept of matching of employee and employer contributions is not enshrined in the Plan language:

12.04 Company Contributions

(1) Subject to Sections 12.04(2), 12.04(3), 15.01, and 15.02, the Company shall contribute 4% of the Member's Earnings to his Defined Contribution Account.

She further argues that there is no parallel obligation on her under the Ontario Employment Standards Act, 2000 to make any contributions while she was receiving salary continuance.

20The Superintendent and Holcim (the "Responding Parties") take the position that the amount of the Applicant's DC Account, as calculated and transferred by Standard Life is correct. They argue that while January 15, 2010 was the Applicant's last day at work, her employment continued because she was entitled to and received salary and benefits for a further period of two weeks in accordance with the provisions of the Ontario Employment Standards Act, 2000. As a result, her employment was not actually terminated until January 29, 2010. The Applicant therefore remained an active member of the Plan until that date and was required to make contributions in accordance with Section 12.01 of the Plan.

21We agree with the position taken by the Responding Parties. Even though the opening paragraph of the termination letter stated that the Applicant's employment is terminated effective January 15, 2010, it went on to state that her salary and benefits would continue until January 29, 2010 to meet the requirements of the Ontario Employment Standards Act, 2000 and provided further information about the treatment of her benefit and pension plans. The Applicant received her salary less deductions until January 29, 2010 as evidenced by the pay stubs dated January 21, 2010 and February 4, 2010. The effect of this continuance was that she remained in employment until January 29, 2010, she remained an active member of the Plan and therefore Holcim continued to have the obligation to deduct her Plan contributions from her pay as well as to make its own contributions. The amount of $8,461.44 calculated by Standard Life as at March 31, 2010 as the value of the Applicant's DC Account and transferred to CIBC, using January 29, 2010 as the employment termination date and including employee and employer contributions until that date, is correct.

22At the Hearing, Holcim submitted that if the Tribunal agreed with the Applicant that the actual date of termination of her employment was January 15, 2010, then it should conclude that the disputed contribution amount of $263.63 is not significant in relation to the total value of the DC Account. We agree. However, we would go even further. The first pay stub dated January 21, 2010 was in respect of the pay period January 4, 2010 to January 17, 2010, most of which occurred prior to the claimed date of termination of employment. Most, if not all (given that the January 16-17 period was a week-end), of this employee contribution amount of $138.09 relates to the pay period up to the alleged date of termination, despite the disingenuous assertion by the Applicant that what is relevant is not the pay period the deduction relates to but the date the pay and the deduction were processed. If we had agreed with the Applicant (and we do not), we would have found that the contribution deducted from the Applicant without her authorization to be equal to or not much more than the amount of $125.54 in the second pay stub and therefore not significant in relation to the total value of her DC Account. We would have noted further that this amount is not lost to the Applicant; it is sitting to her credit in the RRSP held in her name by CIBC.

23We therefore hold that Holcim correctly calculated the amount of $8,461.44 as the value of the Applicant's DC Account.

Was Holcim required to transfer the value of the DC Account to a locked-in RRSP?

24On the locking in issue, the Applicant submits that subsection 63(1) of the Act applies to her DC Account:

LOCKING IN

63(1) No member or former member is entitled to a refund from a pension fund of contributions made in respect of employment in Ontario or a designated jurisdiction on or after the qualification date [the Act defines qualification date as January 1, 1965]

She goes on to contend that subsection 63(7) of the Act applies to her and provides her with an alternative option of cash refund subject to the consent of the Superintendent (which she claims can be assumed because the Plan is registered) on the conditions set out in subsection 63(8). Furthermore, the Act gives her the right to require the Administrator to transfer this amount to a registered retirement savings arrangement in accordance with her direction as required under subsections 63(9) and 63(10). These subsections are reproduced below:

63(7) Despite subsection (1), on application by the administrator of a pension plan, contributions may be refunded to a member or a former member with the consent of the Superintendent.

63(8) On application by the administrator of a pension plan, the Superintendent may consent to a refund under subsection (7) if the pension plan provides for or has been amended to provide for the refund and the employer has assumed responsibility for funding all pension benefits associated with the contributions.

63(9) A person entitled to a payment under subsection (2) or (7) may require the administrator to pay the applicable amount into a registered retirement savings arrangement and may exercise this entitlement by delivering a direction to the administrator within the prescribed period.

63(10) Section 50.1 applies with respect to the payment into the registered retirement savings arrangement.²

Section 50.1 obliges the Administrator to make the payment in accordance with the direction of the member within the prescribed period, and discharges the Administrator once it has done so.

The Applicant further points out that the definition of "retirement savings arrangements" under the Act includes a registered retirement savings plan established under in the Income Tax Act (Canada), without any qualification as to whether it should be on a locked-in or non-locked-in basis. Thus she is free to choose the form of the RRSP as locked-in if she so wishes when directing the Administrator to transfer her DC Account to an RRSP.

25She also argues that she is entitled to alternative options regarding how she can receive her entitlements under section 14.02 of the Plan. She can either receive her entitlements using the option specified in section 14.02(1) or, because she is an Ontario employee whose membership terminated before the completion of two years of membership, she can choose to receive the entitlements under section 14.02(2). The relevant sections of the Plan are reproduced below:

14.01 Termination and Retirement Benefits

Under the Defined Contribution Option, a Member whose Active Membership terminates for any reason other than death shall be entitled to receive the value of his Defined Contribution Account.

14.02 Transfer

(1) Subject to Sections 14.02(2) and 14.02(3), a Member who terminates Active Membership may elect, in full satisfaction of the Member's entitlements under the Defined Contribution Option of the Plan, to have the value of his Defined Contribution Account, either:

(a) transferred directly on his behalf on a locked-in basis to another registered pension plan, provided the administrator of that pension plan agrees to accept the transfer;

(b) transferred directly on his behalf to a locked-in retirement account as prescribed for this purpose under the Pension Benefits Act;

(c) applied to purchase a deferred annuity authorized by the terms of the Plan under which he is the annuitant from an insurance company licensed to transact business in Canada; or

(d) transferred directly to any other vehicle as may be prescribed for this purpose by the Pension Benefits Act and the Income Tax Act.

Upon such transfer or purchase, the Member will cease to be a Member and will have no further entitlement under the Plan.

(2) Notwithstanding Section 14.02(1):

(a) the Ontario, Nova Scotia, or Newfoundland and Labrador Member who terminates Active Membership before completing two years of Active Membership; or

(b) the New Brunswick Member who terminates Active Membership before completing five years of Continuous Service,

is entitled to receive a refund of the value of his Defined Contribution Account. The Member may also elect to have the refund transferred directly to a registered retirement savings plan.

26The Applicant argues that she gave direction to Holcim by completing the T2151 form to transfer her DC Account to a locked-in RRSP with CIBC within the prescribed timeframe under the Act and also in accordance with the Plan. She therefore submits that by transferring her DC Account to a non-locked-in RRSP with CIBC, Holcim has not discharged its duty and is in violation of the Act, contrary to the Superintendent's conclusion.

27The Responding Parties' argument regarding locking-in options under the Act can be summarized as follows:

At the time of the termination of her employment the Applicant had less than 24 months of continuous membership in the Plan, and therefore, under the provisions of Section 37 of the Act that was in force at the time, she was not entitled to a deferred pension. As a result, the locking-in provisions of the Act did not apply to the transfer of her DC Account because of the application of the exception under subsection 63 (4) of the Act, which was also in force at the time.

Section 37 at the relevant time read as follows:

Deferred Pension

37 (1) A member of a pension plan who meets the qualifications in subsection (2) is entitled to the benefit mentioned in subsection (3).

37 (2) The qualifications are:

(a) that the member must be a member on or after the lst day of January, 1988;

(b) that the member must be a member for a continuous period of at least twenty-four months; and

37 (3) The benefit is a deferred pension equal to the pension benefit provided in respect of employment in Ontario or in a designated jurisdiction,

(a) under the pension plan in respect of employment by the employer after the later of the 31st day of December, 1986 or the qualification date;

(b) under any amendment made to the pension plan after the 31^st day of December 1986; and

Subsection 63(4) of the Act at the time read as follows:

63 (4) Despite subsection (1), a member whose employment is terminated and who is not entitled to a pension or to a deferred pension under section 37 (deferred pension) is entitled to payment within the prescribed period of time of an amount equal to not less than the amount of the member's contributions, and the interest on the contributions, made under the pension plan in respect of the member's employment after the 31^st day of December, 1986.

[Emphases added]

Furthermore, the Act defines "registered retirement savings arrangement" as meaning a registered retirement savings plan established in accordance with the Income Tax Act (Canada) or a registered retirement income fund. A "registered retirement savings plan" under the Income Tax Act (Canada) is not required to be locked-in.

Therefore, there is no requirement under the Act that funds be transferred to a locked-in RRSP.

With respect to the options available under the Plan, they argue that the transfer provisions applicable to the Applicant under Section 14.02, do not provide for locking-in. Section 14.02(2) of the Plan states that "Notwithstanding Section 14.02(1) (Section 14.02 (1) provides for the right to transfer to a locked-in plan or account), the Ontario … Member who terminates Active Membership before completing two years of Active Membership … is entitled to receive a refund of the value of his Defined Contribution Account. The Member may also elect to have that refund transferred to a registered retirement savings plan." [Emphasis added]. They argue that the language of the Plan clearly indicates that Ontario members with less than two years of continuous service are not entitled to have their defined contribution accounts transferred to a locked-in RRSP. The word "notwithstanding" in section 14.02(2) does not mean that an additional right is conferred upon the member with less than two years of continuous service; it means that in spite of the transfer options available in section 14.02(1), the options available to an Ontario member with less than two years of continuous service are those set out in section 14.02(2). As a result, there is no right under the Plan to have a DC Account transferred to a locked-in RRSP; the Plan does not provide greater rights than the Act.

Holcim also points out that the provisions of Section 14.02(1) of the Plan are clearly subject to the provisions of Section 14.02(2). The opening sentence of Section 14.02(1) reads: "Subject to Sections 14.02(2) and 14.02(3), a Member who terminates Active Membership may elect …" This further clarifies that the options available under Section 14.02(1) do not apply to members who fall under the purview of Section 14.02(2).

28We agree with the Responding Parties' analysis of the application of the Act and the Plan to the facts of this case. The Applicant's analysis is flawed in that she did not reflect the exceptions under subsection 63(4) of the Act and Section 14.02(2) of the Plan that are applicable to her because she did not have two years of plan membership when her employment terminated. She mistakenly interpreted the words "despite" and "notwithstanding" as conferring additional optional rights on her and she disregarded the words "subject to". She is also wrong in concluding that section 63(7) of the Act applies to her circumstances. That section provides for a member to cash out a benefit that is locked-in with the consent of the Superintendent; not the other way around. Therefore, subsections 63(8) through 63(10) of the Act, if they were legally in force at the relevant time for purposes of this matter, also do not apply to her.

29The Applicant is correct in concluding that the Income Tax Act (Canada) definition does not specify that an RRSP has to be locked-in or not locked-in. However, this does not help her case because there is no obligation on Holcim under the Act or in the Plan to transfer her DC Account to a locked-in RRSP.

30The Applicant is seeking to have a greater level of protection of her retirement savings by transferring her DC Account to a locked-in RRSP. However, as was pointed out to her at the Hearing, a RRSP which is locked-in pursuant to the Act does not provide any more protection to her than a non-locked-in RRSP. The concept of "locking-in" is a creature of pension standards legislation primarily meant to restrict the member herself, with some exceptions, from using the retirement funds for purposes other than the provision of retirement income.

31We hold that Holcim was not required to transfer the Applicant's DC Account to a locked-in RRSP.

What order should the Tribunal make?

We have come to the same conclusion as the Superintendent regarding both the foregoing issues and, therefore, we uphold the Superintendent's intended decision.

V. COSTS

32Holcim has requested an award of its costs as against the Applicant in the amount of $5,000 which is significantly less than its actual legal cost of the proceeding. The Applicant requested an award of her costs against Holcim in an unspecified amount. Those costs requests were the subject of written costs submissions filed by Holcim and the Applicant within the time frame set by the Tribunal at the conclusion of the hearing.

33The Tribunal's authority to award costs of a party in a proceeding are set out in Rule 41 of its Rules of Practice and Procedure (the "Rules") as follows:

"41. Costs of Parties

Where the conduct or course of conduct of a party in a proceeding before the Tribunal has been unreasonable, frivolous or vexatious, or a party has acted in bad faith during a proceeding, the Tribunal may order the offending party to pay all or part of another party's costs in the proceeding.

41.02

An order for costs pursuant to Rule 41.01 shall not be made unless it is requested by a party in a proceeding before the Tribunal. This request can be made at any stage of the proceeding prior to the release by the Tribunal of its final order in the proceeding. Where costs are requested, both the party requesting costs and the party against whom the order is requested shall be given a reasonable opportunity to make submissions to the Tribunal."

The criteria to be applied by the Tribunal in considering an award of costs to a party are set out in Rule 42:

"42.01

In determining whether the conduct or course of conduct of a party in a proceeding before the Tribunal has been unreasonable, frivolous or vexatious, or whether a party has acted in bad faith during a proceeding, the Tribunal shall consider all relevant circumstances, including evidence that a party:

(a) failed to attend a hearing or pre-hearing conference before the Tribunal when properly given notice, without sending a representative and without contacting the Registrar and other parties to the hearing or pre-hearing conference;

(b) failed to comply in a timely manner with an undertaking, procedural order or direction of the Tribunal and thereby caused prejudice or delay to another party in the proceeding;

(c) failed to comply in a timely manner with the disclosure and production requirements set out in the Tribunal's Rules or in any Practice Direction adopted by the Tribunal;

(d) failed to cooperate with other parties during preliminary proceedings or at the hearing;

(e) advanced a position that was frivolous, vexatious or manifestly unfounded;

(f) knowingly presented false or misleading evidence to the Tribunal; or

(g) refused to admit facts or documentary evidence not in dispute and which it should have reasonably admitted."

We have carefully considered the written submissions on the cost request filed by Holcim and the Applicant in the context of the Rules, the findings of fact noted above and our observations as to the conduct of the parties at the hearing and related to the proceeding.

Holcim, the successful party, has acted in a reasonable, appropriate and professional manner prior to and throughout the proceeding in dealing with the Applicant relating to the issues in dispute. Accordingly, we will not grant the Applicant's request for costs against Holcim.

We also have decided not to grant Holcim's request for an order that the Applicant pay a very limited portion of its costs. The Applicant, a self-represented person, made some written and oral statements that somewhat exceeded the limits of reasonableness and that did not appear to always be consistent. She appears to have developed an unjustified level of distrust of Holcim which inter alia lead her to demand information on explanations already provided or made available to her. She also misunderstood the roles and legal obligations of Standard Life and CIBC. However, we are satisfied that the Applicant believed in good faith in the correctness of the positions which she put forth in the proceeding. After consideration of the Rules and all of the circumstances including the evidence and the conduct of the parties, we have concluded that the Applicant's conduct and course of conduct in the proceeding were not frivolous or vexatious and were not unreasonable to a degree that we are prepared to exercise our discretion to grant Holcim's request for an award of costs against her.

VI. ORDER

34In accordance with the above reasons, the Application is dismissed without costs. The Tribunal directs the Superintendent to make the decision reflected in its Notice of Intended Decision dated February 5, 2013.

Dated at Toronto, this 9th day of October, 2013.

"John Solursh"

John Solursh

"Jennifer Brown"

Jennifer Brown

"Shiraz Bharmal"

Shiraz Bharmal

Footnotes

For simplicity, we have always used "Holcim" to refer to the Plan Administrator, rather than use its previous name of St. Lawrence Cement for events before its name change in 2009.
Subsections 63(9) and 63(10) of the Act were added to the Act by 2010, c.9 on a date to be proclaimed by the Lieutenant Governor. Apparently they had not been proclaimed at the start of the issues raised before the Tribunal. However they support the position of the Applicant and they were accepted by both the Superintendent and Holcim as potentially applicable to the Applicant's position. Therefore we have proceeded on the basis that those subsections were in force at the date relevant to this matter.