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PRIVATE PENSION PLANS - Membership - Eligibility - Appeals and judicial review

Tuesday, October 24, 2017 @ 8:38 AM  


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Application by Hiscocks for judicial review of a decision of the Financial Services Tribunal denying his request that it direct the Superintendent of Financial Services to permit him to retroactively purchase pensionable service from his former employer. From 1979 to 1997, the applicant was employed with Spar Aerospace Limited (Spar). He did not join Spar's pension plan. In 1997, DRS Technologies Canada Ltd. (DRS) purchased the assets of Spar. The applicant's employment was transitioned from Spar to DRS. He was eligible to join the DRS pension plan (Plan) upon becoming employed with DRS, but did not do so until 2004. In 2013, the applicant sought but was refused retroactive membership in the Plan from 1997. The applicant alleged that when DRS acquired the Spar business in 1997, it contravened s. 25 of the Pension Benefits Act which required the pension plan administrator to provide written information about the Plan to certain employees who were not yet members of the Plan. The Tribunal found that even if DRS had contravened the notice requirements in s. 25, the applicant knew about the Plan. The Tribunal found that there was no evidence that the applicant would have joined the Plan in 1997 if he had been given formal notice under s. 25.

HELD: Application dismissed. The Pension Benefits Act provided a right of appeal from the decision of the Tribunal which the applicant failed to pursue and instead applied for judicial review after the appeal period expired. There were no special circumstances in this case which would justify a departure from the general rule that certiorari should not be granted when the party aggrieved had a right of appeal that was not taken advantage of and had expired. The applicant did not provide a foundation for a claim of breach of natural justice or procedural fairness by the Tribunal. The Tribunal had an evidentiary basis for the factual findings that the applicant challenged, including the finding that he knew about the Plan. Based on the evidence before it, the Tribunal reasonably concluded that the applicant knew he was eligible for immediate membership in the Plan prior to the time of the sale of the business and on his acceptance of the offer of employment from DRS in October 1997. The applicant failed to establish that the Tribunal made a reviewable error in the exercise of its discretion.

Hiscocks v. Ontario (Financial Services Commission), [2017] O.J. No. 4850, Ontario Superior Court of Justice - Divisional Court, September 15, 2017. Digest No. TLD-October232017004