FINANCIAL SERVICES TRIBUNAL
2013 ONFST 8
Decision No. P0515-2013-1
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
SUBMISSIONS:
For the Applicant – Weihua Shi
For the Superintendent of Financial Services – Deborah McPhail
For the Added Party, Holcim (Canada) Inc. – Jennifer McAleer
WRITTEN SUBMISSIONS
REASONS FOR DECISION
I. INTRODUCTION – REQUEST FOR DOCUMENTS/INFORMATION
1The Applicant filed a motion on July 15, 2013 requesting disclosure by the Added Party (“Holcim”) of certain documents and information. I determined that the motion should be conducted by written submissions. I have considered the related written submissions filed by the Applicant, Holcim and the Respondent (the “Superintendent”) dated and filed on or before August1, 2013.
2I agree with the position of the Superintendent that the requests for disclosure are more in the nature of interrogatories. Those requests, as adequately summarized in the Superintendent’s submissions, are as follows:
Details of each contribution made to the Retirement Plan for Salaried Employees of Holcim (Canada) Inc. (the “Plan”) after December 31, 2009, including the date and amount of each contribution by Holcim (Canada) Inc. (“Holcim”) by the Applicant;
Who made the withdrawal from the Plan when the Applicant’s account was transferred to a retirement savings account with the Canadian Imperial Bank of Commerce (“CIBC”);
When the withdrawal was made;
Why the withdrawal was made;
Who provided the authority for the withdrawal, and under what provision of the Plan or the Pension Benefits Act (the “Act”) was authority provided.
3I will address below each of those requests in the context of the applicable provisions of the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (the “Rules”).
Rules of Practice and Procedure
4Rule 27 requires the parties to a proceeding to agree upon a plan for disclosure and production of “relevant” documents. In preparing such a plan the parties are to “take into account the principle of proportionality and shall consider whether the costs, burden and delay that may be imposed on the parties in disclosing and producing documents are reasonable in light of the nature, scope and complexity of the matters at issue.” If, as in this matter, the parties are unable to agree on a plan for disclosure and production of relevant documents or if a party has not produced a document after being requested to do so by another party, the Tribunal may make an order to direct such a plan or for production of a document. Accordingly any decision by the Tribunal must take into account the relevance of the document, the principle of proportionality and whether the costs, burdens and delay that may be imposed on the parties in disclosing and producing documents are reasonable in light of the nature, scope and complexity of the matters at issue.
5Rule 19 provides that “a party may direct an interrogatory to another party to:
a) clarify evidence filed by a party;
b) simplify the issues;
c) permit a full and satisfactory understanding of the matters to be considered; or
d) expedite the proceeding.”
First Request – Details of contributions made after December 31, 2009
6One of the identified issues in this proceeding is what amount is payable from the Applicant’s defined contribution account in the Plan. Accordingly, the request for details generally appears to be relevant. However, those details have already been provided by Holcim to the Applicant (and generally as submitted by Holcim were previously provided to or available to the Applicant) through payroll records and through records with the Plan custodian, Standard Life and through the letter dated July 30, 2013 provided by Holcim’s counsel to the Applicant.
7I agree with the submissions of the Superintendent and Holcim that Holcim should not be obligated to provide any further information regarding the contributions made to the Plan by the Applicant or on her behalf after December 31, 2009, having regard to the information already provided. Holcim has already produced all relevant documents and provided all relevant information.
Second Request – Who made the withdrawal from the Plan
8I agree with the positions of the Superintendent and Holcim that the answer to this question is irrelevant. I also agree with their submissions that the proportionality principle applies, i.e., the request asks for more information than is necessary to determine the issues in this proceeding. More specifically, the issues in this proceeding are the amount of the transfer from the Plan to the retirement savings vehicle established by the Applicant with Canadian Imperial Bank of Commerce (“CIBC”), whether the transfer should be to a locked-in retirement savings vehicle, and what order the Superintendent should be directed to make. The name of the person or entity who made the withdrawal will not clarify any evidence that is relevant to those issues, simplify the issues, permit a full and satisfactory understanding of the matters to be considered, or expedite the proceeding.
Third Request – When the withdrawal was made from the Plan
9I agree with the submissions of the Superintendent and Holcim that the answer to this question is not relevant and that the proportionality principle applies. The funds in the Applicant’s account in the Plan continued to earn interest until they were transferred to the retirement savings vehicle established at CIBC. The date of actual transfer accordingly is not relevant. In any event, the material filed by Applicant makes it clear that she was aware that the transfer was made between April 7 and April 9, 2010.
Fourth Request – Why the withdrawal was made from the Plan
10The answer to this request is irrelevant. It is clear from the record that the withdrawal was made from the Plan because the Applicant had directed the funds to be transferred to the retirement savings vehicle established at CIBC.
Fifth Request – Who provided authority for the withdrawal, and under what provision of the Plan or [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p8/latest/rso-1990-c-p8.html) was the authority provided?
11The answer to the question as to who provided authority for the withdrawal is irrelevant and will not assist in clarifying the evidence, simplifying the issues, permitting a full and satisfactory understanding of the matters to be considered, or expediting the proceeding. The question as to what provision of the Plan or the Act provided the authority for the withdrawal is one of the issues to be determined by the Tribunal in this proceeding.
II. ORDER
12Holcim has responded in a satisfactory manner and to an appropriate extent to the Applicant’s first request. The other requests are either irrelevant and do not meet the criteria for responding to an interrogatories or request an answer to the legal issue to be determined by the Panel. Furthermore, regard must be had to the principle of proportionality recognizing that an order requiring Holcim to respond to the Applicant’s request for additional information to be produced would cause an undue cost burden on Holcim for no substantive purpose.
13The order requested by the Applicant in this motion is denied.
14The Applicant separately requested permission in her letter dated July 19, 2013, to provide further written submissions and evidence when provided with the additional documents and information she was seeking from Holcim. In view of the foregoing decision I do not see any need to grant the permission requested by the Applicant who in any event will have an opportunity to make submissions and present evidence relevant to the matters in issue at the Hearing.
Dated at Toronto, this 12^th^ day of August, 2013.
“John Solursh”
John Solursh
Chair of the Tribunal and Chair of the Panel