Citation: Shi v. Ontario (Superintendent Financial Services), 2014 ONFST 4 Decision No. P0535-2014-2 Date: 2014/04/15

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 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.

and

RESPONDENT

BEFORE:

Elizabeth Shilton Vice-Chair of the Financial Services Tribunal

SUBMISSIONS:

For the Appellant – Weihua Shi

For the Superintendent of Financial Services – Deborah McPhail

Date HearD:

Written Submissions

REASONS FOR DECISION ON THE APPELLANT’S REQUEST FOR REVIEW OF THE TRIBUNAL’S NOTICE OF DISMISSAL

I. INTRODUCTION

1On March 20, 2104 the Tribunal issued a Notice of Dismissal of Ms Shi’s Notice of Appeal on the ground that it relates to matters that are outside the jurisdiction of the Tribunal. On March 28, 2014, Ms Shi filed a Request for Review of that Notice under Rule 44.01 of the Tribunal’s Rules of Practice and Procedure (the “Rules”).

2Ms Shi filed submissions in support of this Request. In accordance with the Rules, the Superintendent was invited to make submissions on the Request, and did so on April 2, 2014. Although the Rules do not contemplate reply submissions, Ms Shi nevertheless filed reply submissions on April 7, 2014.

3I have considered the Request for Review and the written submissions made by both Ms Shi and the Superintendent, and have concluded that the Request for Review fails to meet the threshold test for review. Accordingly, the Tribunal will not review its March 20, 2014 Notice of Dismissal.

II. Decision

4As discussed in the March 20, 2014 Notice of Dismissal, this matter is closely related to prior proceedings in which another panel of the Tribunal dismissed a Request for Hearing filed by Ms Shi on March 4, 2013. The Tribunal’s decision dismissing Ms Shi’s Request for Hearing was issued on October 9, 2013 (2013 ONFST 12, Decision Number P0515-2013-2). On October 21, 2013, Ms Shi filed a Request for Review of that decision. On November 26, 2013, the Tribunal dismissed the Request for Review because it did not meet the threshold test for review (2013 ONFST 14, Decision Number P0515-2013-3). As a courtesy to Ms Shi, the Tribunal also considered the merits of her arguments, and determined that there had been no error in the original decision that would warrant any change in the Tribunal’s original order.

5In its November 26, 2013 decision dismissing the Request for Review, the Tribunal explained the Tribunal’s Rules for reviewing decisions and its general approach to review, as follows:

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;

(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 Gay Lea 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.”

6In its March 20, 2014 Notice of Dismissal, the Tribunal explained its two-step process for review, as follows:

In 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.

7Accordingly, Ms Shi is fully aware that before the Tribunal will agree to review a prior decision, a person filing a Request for Review must first persuade the Tribunal that there is new evidence that could not reasonably have been filed at the time of the original hearing, or new arguments that could not have been made at the time of the original hearing. She is also aware that a Request for Review is not an opportunity to reargue the case.

8Nevertheless, in this Request for Review Ms Shi has made no attempt to explain how her Request for Review meets the threshold test. Instead, she has simply repeated arguments she already made in her original Notice of Appeal, and in the submissions filed in support of that Notice of Appeal. In large part, as explained in the March 20, 2014 Notice of Dismissal, these arguments simply repeat arguments which she had already made before the Tribunal in support of her original Request for Hearing. These arguments were dismissed by the Tribunal in its decision of October 9, 2013.

9I have carefully reviewed Ms Shi’s submissions on this Request for Review, and I am unable to identify any new evidence Ms Shi seeks to put forward, or any argument that she has not previously made. To the extent that she has reframed or rephrased arguments, there is no reason provided or apparent as to why those arguments could not have been made in that form as part of her original submissions. Ms Shi is simply attempting to reargue the case she argued in the submissions she initially filed in support of her Notice of Appeal.

10I therefore find that the Appellant has not met the threshold test for review. Accordingly, the Tribunal will not review its March 20, 2014 Notice of Dismissal.

III. ORDER

11The Request for Review is dismissed, and no further requests from Ms Shi for review of the March 20, 2014 Notice of Dismissal will be processed by the Tribunal.

12In addition, as explained in para. 18 of the March 20, 2014 decision, no request filed by Ms Shi for review of this dismissal of her Request for Review will be processed by the Tribunal.

Dated at Toronto, this 15th day of April, 2014.

“Elizabeth Shilton” Elizabeth Shilton