FINANCIAL SERVICES TRIBUNAL

Citation: Shi v. Ontario (Superintendent Financial Services) 2014 ONFST 2 Decision No. P0535-2014-1 Date: 2014/03/20

IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c.P.8, (“the Act”) as amended by the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28;

AND IN THE MATTER OF an Order dated January 14, 2014, of the Director, Pensions Plans Branch (Acting), refusing to Order that Holcim (Canada) Inc. return the contributions made to the Applicant’s DC account in the Plan after January 15, 2010, and refusing to Order that Holcim (Canada) Inc. issue a new Statement of Options to the Applicant providing for locked-in transfer options under section 42 of the PBA;

AND IN THE MATTER OF a Notice of Appeal filed by Weihua Shi on January 21, 2014.

B E T W E E N:

Weihua Shi

APPELLANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

NOTICE OF DISMISSAL

1On February 3, 2014, the Tribunal issued a Notice of Intent to Dismiss the above Notice of Appeal pursuant to Rule 33.01 of the Rules of Practice and Procedure on the grounds that (i) it relates to matters outside the jurisdiction of the Tribunal, and (ii) it is frivolous and vexatious.

2The Tribunal gave the parties 30 days to make written submissions in response to the Notice of Intent to Dismiss. Both the Appellant and the Superintendent have made written submissions.

3After considering those submissions, I order that the Notice of Appeal is dismissed, for the reasons below.

I. background

4In the Tribunal’s Notice of Intent to Dismiss this Notice of Appeal, I set out the following background information:

1. The matter appealed from in this Notice of Appeal is an Order dated January 14, 2014 and signed by John Avergis, Acting Director, Pension Plan Branch, pursuant to s.87 of the Pension Benefits Act, R.S.O. 1990, c.P.8. (“PBA”).

2. In that Order he refuses to make certain orders against Holcim (Canada) Inc. which had been sought by Weihua Shi (“the Appellant”).

3. That Order resulted from a sequence of events in which:

a. The Superintendent of Financial Services issued a Notice of Intended Decision (“NOID”) in accordance with s.89 of the PBA on February 5, 2013, indicating his intention to refuse to make certain orders requested by Ms Shi with respect to the Holcim (Canada) Inc. pension plan;

b. As contemplated by s.89(6) of the PBA, Ms Shi then made a Request for Hearing on March 4, 2013 seeking to have the Tribunal over-rule the Superintendent and order him to make the orders she sought;

c. On October 9, 2013, after a full hearing, the Tribunal determined that it agreed with the Superintendent’s intended decision as set out in the NOID. Accordingly, it dismissed Ms Shi’s application and directed the Superintendent to make the decision contemplated by the NOID.

d. On October 21, 2013, the Applicant made a request to the Tribunal for review of its October 9, 2013 decision.

e. On November 26, 2013, the Tribunal dismissed that request for review.

f. Ms Shi filed an additional request for review with the Tribunal on December 6, 2013. This request for review was returned to her because the Tribunal’s Rules of Practice and Procedure do not permit more than one request for review (see Rule 45.03).

g. She has continued to file additional requests for review, taking the position that she is entitled to a review of the decision to dismiss her request for review (December 16, 2013; December 27, 2013; January 8, 2014; January 21, 2014). Each time, her request has been returned with the explanation that the Tribunal’s Rules do not permit such a request, but she has continued to file these requests.

4. The Order of January 14, 2014 which is the subject of this Notice of Appeal was issued under s.87 of the PBA in accordance with the Tribunal’s decision of October 9, 2013.

5. There is no statutory basis for an appeal to the Tribunal from such an Order. Accordingly, the Tribunal, as a statutory tribunal, has no jurisdiction to hear this appeal.

6. Furthermore, it appears from the Notice of Appeal that Ms Shi is attempting to use the vehicle of this appeal to re-litigate the matters already raised in her initial Request for Hearing filed on March 4, 2013, and in her numerous requests for review. Those matters have already been disposed of by the Tribunal’s decision of October 9, 2013, and the Tribunal has declined to review that decision.

5As indicated above, both parties made written submissions addressing the matters raised in the Notice of Intent to Dismiss.

6In her submissions, Ms Shi quite frankly acknowledges that the Notice of Appeal makes the same claim as the one already dealt with by the Tribunal and dismissed in its decision of October 9, 2013 (the “October 9 Decision”). Both in her Notice of Appeal and her written submissions, she states that “the proposed appeal involved the same/similar questions of fact, law and policy that raised the Appellant’s Application for Request for Hearing filed with the Tribunal on March 04, 2013, with the Tribunal’s file No P0515-2013”.

7Ms Shi requested a review of the October 9 Decision pursuant to the Tribunal’s Rules of Practice and Procedure. By decision dated November 26, 2013 (the “November 26 Decision”), the Tribunal dismissed her request for review, holding that it did not meet the threshold test for review. By the time she filed her Notice of Appeal, she had made five attempts to file a request for review of the November 26 Decision. (She points out in her submissions that she has now made two further attempts; on February 12, 2014 and again on March 3, 2014). The Tribunal has refused to accept these requests to review the November 26 Decision on the grounds that Rule 45.03 does not permit a review of a decision not to review.

8Ms Shi makes it clear both in her Notice of Appeal and in her written submissions that her motivation in filing the Notice of Appeal is to get around the Tribunal’s repeated refusals to process her request for review of the November 26 Decision.

9Ms Shi insists that her original claim is valid, but that the “simple” facts on which it is based were ‘”twisted, distorted and manipulated” in the Tribunal’s October 9 Decision. She argues, however, that she is not attempting to “relitigate” her original claims. It is her position that the original litigation process is still incomplete because the Tribunal has not yet processed her request for review of the November 26 Decision. She submits that the Registrar’s refusal to process her request for review is “invalid” because the Tribunal can legally act only by “order”. In essence, she argues that the Tribunal must conduct a hearing before it makes a determination about whether she has a right to file a request for review of the November 26 Decision.

10On the question of whether the Tribunal has jurisdiction to hear an appeal of the Superintendent’s January 14, 2014 order, she argues that she has a right to appeal because the Superintendent’s order is made under s.87 of the PBA, which provides that an order under s.87 is “subject to section 89 (hearing and appeal)”. She also relies on the Tribunal’s Form 2, entitled Notice of Appeal. That form provides instructions to appellants as follows: “To request a hearing to challenge a proposal or intended decision of the Superintendent of Financial Services, you must complete and file this form….”

11Ms McPhail, who made the written submissions on behalf of the Superintendent, argues that there is no statutory basis for an appeal to the Tribunal in these circumstances. She points out that under s. 89 of the PBA, a request for hearing can be made only after the Superintendent issues a NOID, and not when he issues an Order. Ms Shi did request and was granted a hearing to challenge the NOID. She was unsuccessful in that challenge. The statute does not provide a further right to challenge the Order made by the Superintendent following the hearing process. Ms Shi’s remedy, if she disagreed with the Tribunal’s decision, was to appeal to the Divisional Court under s.91(1) of the PBA. Ms McPhail, points out, however, the time limits established by the Rules of Civil Procedure for such an appeal have long expired.

12With respect to Ms Shi’s reliance on Form 2, Ms McPhail submits that Form 2 does not provide any right to file an appeal; it is for use where there is a statutory right of appeal. By way of example of such a statutory right of appeal, she points to s.393(10.2) of the Insurance Act, which provides for an appeal to the Tribunal from a decision of the Superintendent with respect to licences under that Act. She notes that Ms Shi’s claim does not relate to any such matter.

13Accordingly, Ms McPhail submits that there is no basis under the PBA for the Tribunal to hear an appeal. She argues, however, that the Tribunal should not issue a decision to that effect. Instead, it should simply “decline to consider the Applicant’s request”. If we understand this argument, she proposes that the Tribunal should dispose of this matter as an administrative rather than an adjudicative matter. The basis for this submission is her concern that if the Tribunal issues a decision, the Appellant may appeal that decision to the Divisional Court. She argues that such an appeal “would be an abuse of process and would effectively mean that orders issued by the Superintendent could never be considered as final”.

II. THE STATUTORY FRAMEWORK

14Ms Shi’s claim is ultimately against Holcim (Canada) Inc., her former employer, and relates to the manner in which Holcim has administered the pension plan in relation to her pension rights at the time her employment was terminated in January of 2010. The PBA sets out a specific step-by-set process for plan members who object to the manner in which their pension rights have been administered.¹

Step 1: A plan member may raise the claim with FSCO and ask the Superintendent of Financial Services to make an order. Any such order would be an order under s.87;

Step 2: Prior to making such an order, the Superintendent must issue a Notice of Intended Decision (“NOID”) indicating how he proposes to deal with the claim raised (s.89(2));

Step 3: If the plan member does not object to the Superintendent’s intended decision, the Superintendent will issue an order under s.87 as indicated in the NOID (s.89(6)-(7)).

or

If the plan member does object to the intended decision, she may file a Request for Hearing before the Tribunal, seeking to require the Superintendent to decide the matter differently than he has originally proposed (s.89(6), (8)).

Step 4: If a Request of Hearing is filed, the Tribunal will convene a hearing and decide whether the Superintendent should proceed with his intended decision as set out in the NOID, or whether he should instead make a different decision (s.89(8)-(9)). The Tribunal’s decision will be reflected in an order directed to the Superintendent.

Step 5: When the Superintendent receives the Tribunal’s decision under Step 4, he issues an order under s.87 as directed in the Tribunal’s decision.

15A party who disagrees with a decision of the Tribunal made at Step 4 of this process has the right to appeal to the Divisional Court under s.91(1). Under the Rules of Civil Procedure, a party has 30 days to file an appeal. While there is no statutory obligation on the Superintendent to wait for the statutory appeal period to expire before issuing an order under s.87, he normally does so, as he did in this case.

16There is no provision in the PBA for an appeal to the Tribunal from an order of the Superintendent issued under s.87; under the scheme of the Act, there is recourse to the Tribunal only at the NOID stage of the process.

17In addition to the statutory right of appeal to the Divisional Court identified in para. 15, the Tribunal provides for a right of review under Rules 44-47 of its Rules of Practice and Procedure. These Rules permit a party who disagrees with a Tribunal decision to request that the Tribunal review its decision. They contemplate a two-step process in which applicants must first persuade the Tribunal that a review is warranted before it will undertake a review. Step One establishes a “threshold test” in which an applicant must normally bring forward evidence or argument that is new and that was not reasonably available at the time of the original hearing before a review will be granted. A review is not an opportunity to reargue the case: Olszewska v Ontario, 2013 ONFST 12; McGrath v Ontario, 2010 ONFST 9.

18Rule 45.03 provides that “A panel or member will consider only one request for review of any decision or order by a party”. The purpose of this rule is to safeguard both the resources of the Tribunal and the public interest in the finality of orders. Accordingly, under Rule 45.03, the Tribunal will not accept a request for review of a decision which declined to review an earlier decision, since that would permit perpetual reconsideration of the original decision and leave orders perpetually unsettled.

III. Analysis

19Ms Shi has already availed herself of the statutory steps outlined in para. 14 above with respect to her claim against her former employer. She was unable to persuade the Superintendent that her employer had wrongly administered the plan. When he issued a NOID indicating his intention to dismiss her claim, she exercised her statutory right to request a hearing to challenge that intended decision. She was unable to persuade the Tribunal that her position was correct. When the Tribunal issued its October 9 Decision dismissing her claim and ordering the Superintendent to proceed with his intended decision as set out in the NOID, Ms Shi availed herself of her right under the Rules to apply to the Tribunal to request a review of that Decision. The Tribunal considered her request and dismissed it in the November 26 Decision, holding that she had not met the threshold test for review under the Rules. Ms Shi did not appeal either the October 9 Decision or the November 26 Decision to the Divisional Court.

20Ms Shi clearly does not accept the Tribunal’s disposition of her claims. Ms Shi refuses to accept no for an answer. She insists that she has a right to a review of the Tribunal’s November 26 Decision which dismissed her request for review of the October 9 Decision. She has now filed this Notice of Appeal. She concedes that the subject matter of the appeal duplicates the claim originally made before the Superintendent, which has already been dealt with in accordance with the procedure set out in the PBA. She concedes that she has filed the Notice of Appeal to circumvent the Tribunal’s refusal to permit further review of its earlier decisions. She concedes that its purpose is to get her original claim back before the Tribunal, and to persuade the Tribunal that her claim is justified and should not have been dismissed.

21However, there is simply no provision in the PBA for such an appeal to the Tribunal. Once a NOID has been confirmed by the Tribunal, as it was in this case, and an order has been issued by the Superintendent in compliance with the Tribunal decision, the Tribunal has no further role to play. Accordingly, I must dismiss this Notice of Appeal on the grounds that it deals with matters that are outside the jurisdiction of the Tribunal.

22Superintendent’s counsel argued that although the Tribunal has no jurisdiction to hear Ms Shi’s appeal, I should deal with that on an administrative rather than an adjudicative basis, by advising Ms Shi that the Tribunal declines to process her Notice of Appeal rather than by issuing a formal decision dismissing it. I do not believe that would be appropriate in this case. I have issued a Notice of Intent to Dismiss, and in my view, the appropriate sequel to such a Notice is a decision either to dismiss on a summary basis, or to allow the appeal to proceed to a hearing. Whether such a decision triggers further appeal rights to the Divisional Court, and whether the exercise of such appeal rights would be an abuse of process are matters that could be addressed in due course by the Divisional Court if any appeal is brought from this decision.

23Since I have dismissed the Notice of Appeal on the basis that it deals with a matter that is outside the jurisdiction of the Tribunal, there is no need to address the second potential ground for dismissal raised in the Notice of Intent to Dismiss: the ground that the Notice of Appeal is frivolous and vexatious. Accordingly, I make no ruling on that ground. Nevertheless, I take this opportunity to observe that Ms Shi’s conduct in connection with filing this Notice is the type of conduct that might well be found to be frivolous and vexatious in a proper case. Despite the fact that the Registrar has clearly and repeatedly conveyed to her the fact that the Tribunal’s Rule 45.03 does not permit a review of a refusal to review, she has continued to attempt to file a request for review. This Notice of Appeal is a transparent attempt to circumvent the Tribunal’s refusal to process her request for review. She clearly disagrees with the Tribunal’s interpretation of its Rule, just as she disagrees with the Tribunal’s decision to dismiss her claim, and with its decision to dismiss her request for review of its original decision. But she has now exhausted her avenues of complaint before the Tribunal. Continued efforts to bring the matter back before the Tribunal cannot be productive.

IV. ORDER

24The Tribunal orders that Ms Shi’s Notice of Appeal is hereby dismissed.

Footnotes

1. 1This is the process that was in effect at the time Ms Shi’s claims arose. Amendments to the PBA which have not yet been proclaimed may have some impact on this process, but are not relevant to Ms Shi’s case.