FINANCIAL SERVICES TRIBUNAL
2013 ONFST 14 Decision No. P0515-2013-3 Date: 2013/11/26
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 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.
B E T W E E N:
WEIHUA SHI APPLICANT
and
SUPERINTENDENT OF FINANCIAL SERVICES RESPONDENT
and
HOLCIM (CANADA) INC. ADDED PARTY
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
APPEARANCES:
For the Applicant – Weihua Shi (the Applicant) For the Superintendent of Financial Services – Deborah McPhail For the Added Party, Holcim (Canada) Inc. – Jennifer McAleer
WRITTEN SUBMISSIONS:
Applicant: October 21, 2013 Superintendent of Financial Services: October 22, 2013 Holcim (Canada) Inc.: October 25, 2013 Applicant’s Reply Submission: October 28, 20131
REASONS FOR DECISION
I. INTRODUCTION
1The Tribunal rendered its decision on this case on October 9, 2013. On October 21, 2013, the Applicant filed a Request for Review of that decision under the Rules of Practice and Procedure for Proceedings Before the Financial Services Tribunal (the “Rules”).
2After having considered the Request for Review, we have concluded that the Applicant has failed to meet the threshold for review and therefore dismiss the request. Our reasons follow.
II. REASONS FOR DECISION
3The conditions under which the Tribunal will review its decisions and orders are set out in Rules 44-47. The circumstances which the Panel will consider in deciding whether it is advisable to review all or part of its decision are set out in Rule 46.01 which is reproduced below:
“In deciding whether it is advisable to review all or part of its decision or order, the panel or member may consider any relevant circumstances, including:
(a) whether there is material error of law or fact such that the panel or member would likely have reached a different decision but for that error; (b) the extent to which any party or any other person has relied on the decision or order; (c) whether the decision or order is under appeal or is the subject of a judicial review application; and (d) whether the public interest in finality of decisions and orders is outweighed by the prejudice to the requester.”
4The Tribunal outlined its approach to Requests for Review in Olszewska v. Ontario (Superintendent Financial Services) 2013 ONFST 7, Decision No. P0500-2012-3, and prior decisions as follows:
A. The Applicant must put forward either new evidence or new arguments or objections not reasonably available at the time of the original hearing. (See also Gaylea Foods Co- Operative Limited v. Ontario (Superintendent of Financial Services) 2010 ONFST 12, Decision No. P0275-2006-5); and
B. A Request for Review is not an opportunity to reargue the case. (See also McGrath v. Ontario (Superintendent of Financial Services) 2010 ONFST 9 Decision No. P0335-2008-3).
The Tribunal also pointed out in the McGrath decision cited above that:
“There is a strong public interest in the finality of orders. Accordingly, most Tribunals whose rules provide for review or reconsideration offer such an opportunity only on very narrow grounds… There is a similar need for finality in pension matters. In our view, the Tribunal should take a similarly narrow approach to determining whether or not Requests for Review cross the threshold and warrant a review of a Tribunal order.”
5The Applicant has put forward new arguments that relate to the immediate vesting of her pension benefit. The Applicant asserts that (a) she was immediately vested under the terms of the Plan and (b) the changes made to the Act subsequent to the date of her termination also provide for immediate vesting of pension benefits. Therefore, she is entitled to a deferred pension in accordance with the Act and by extension to a transfer of such deferred pension to a “locked-in” RRSP. Upon examination, both of her arguments fail.
6Under argument (a), the Applicant conflates the terms of the Plan with those of the Act. The Act permits a pension plan to provide more favourable provisions than those set out in the Act. However, that does not mean that the terms of the Plan can be imported in to the Act. The provisions of the Act must be interpreted under its own terms. Section 37 of the Act that was in effect at the time relevant to the case clearly states that to qualify for a deferred pension, “… the member must be a member for a continuous period of at least twenty-four months …” The reference under Section 42 to a member “who is entitled to a deferred pension …” must be interpreted in relation to the provisions of Section 37 of the Act, without regard to the more favourable provisions included in the Plan as permitted on a discretionary basis under the Act. The Applicant had less than twenty-four months of membership in the Plan and therefore was not entitled to a deferred pension under terms of the Act, even if the Plan provided for immediate vesting.
7Argument (b) fails because the revisions to the Act providing for immediate vesting were not effective until May 18, 2010, months after the Applicant’s termination, and they were not retroactive even if the first reading of the Bill proposing the changes occurred before the date of the Applicant’s termination. The revisions do not apply to the Applicant.
8Although in deference to the Applicant we have dealt with and disposed of the foregoing arguments, we also note that they could reasonably have been made at the time of the hearing since all the information was available then. Strictly speaking, the new arguments do not meet the threshold test for a review.
9The rest of the Applicant’s submission is a reprise of the evidence and arguments already presented at the Hearing and considered by the Tribunal in its original decision, and therefore fails the threshold test. The Applicant alleges that the facts presented by her were “distorted, manipulated or misled (sic) in the Decision”. In making the allegation, the Applicant misunderstands the Tribunal’s role which is to hear, review and assess all the evidence presented to it, draw its conclusions regarding the facts of the case and then apply the law to those facts. Her allegations of material error of fact and law boil down simply to disagreements with the Tribunal’s assessment.
10In her request, the Applicant also expresses her concern regarding the absence of two witnesses she would have liked to cross-examine and who were not called by Holcim at the hearing. Holcim had the prerogative of calling the witnesses it believed would make its case. It was up to the Applicant to call her own witnesses to further her case. She did not do so.
11The Applicant alleges that she has not received any of her entitlement to her DC Account upon termination. This patently is not the case. By the Applicant’s own account, CIBC advised her in April 2010 that they had deposited the monies representing her DC Account received from the Plan through Standard Life in a “non-locked-in” RRSP account opened in her name bearing a different account number than the one originally shown in her application. She refuses to acknowledge the ownership of this account because, according to her, she did not authorize CIBC to open the account under that number. Nonetheless, all her contributions deducted from her pay and those contributed by Holcim on her behalf, together with investment earnings, constituting her entitlement under her DC Account, are being held by CIBC for her in the account opened in her name under that number. The account is at her disposal and the only thing stopping her from accessing it is her own wilful refusal to do so. There is no prejudice to the Applicant.
12In summary, the Applicant does not provide any information that would constitute an error in law or fact that would lead us to change our decision. In the main, the Applicant is rearguing the case. Her allegations of material error of fact and law are simply disagreements with how the Tribunal assessed the evidence and disposed of the arguments. The Request for Review does not meet any of the considerations set out in Rule 46.01. We must uphold the strong public interest in the finality of decisions especially as there is no discernible prejudice to the Applicant.
III. ORDER
13For the above reasons, the Request for Review is denied.
Dated at Toronto, this 26th day of November, 2013.
“John Solursh” John Solursh
“Jennifer Brown” Jennifer Brown
“Shiraz Bharmal” Shiraz Bharmal