Hiscocks v. Ontario (Superintendent Financial Services), 2016 ONFST 5
In March 2016 the Financial Services Tribunal released its decision regarding the request for hearing filed by Christopher Hiscocks asking it to direct the Superintendent of Financial Services to order DRS Technologies Canada Ltd. to permit him to purchase pensionable service retroactively. The tribunal denied Mr. Hiscocks’ request based on a finding that there had been no contravention of s 25 of the Pension Benefits Act and that, even if there had been, the PBA does not specify a remedy for such a contravention and the requested remedy was not available under the terms of the plan. The decision is important for the following reasons:
- The implications for future allegations of a contravention of s 25 and other provisions of the PBA for which no remedy is specified.
- The tribunal’s confirmation that it does not have jurisdiction to award civil damages.
- The tribunal’s comments on best practices regarding member communications upon sale of a business.
Mr. Hiscocks commenced employment with Spar Aerospace Limited in 1979. Throughout the time he was employed, Spar had a voluntary contributory defined-benefit pension plan. Mr. Hiscocks was eligible to join the Spar plan at any time after completion of 12 months of employment. He admitted that he did not join the Spar plan and in fact waived his right to participate in writing on at least two occasions.
On October 29, 1997 certain of Spar’s assets were purchased by DRS. DRS agreed to adopt a new defined-benefit pension plan covering transferred employees from Spar who, as of the date of the sale, participated in, or who satisfied or were in the process of satisfying eligibility requirements for participation in the Spar plan. Mr. Hiscocks admitted that he was aware of the new DRS plan, that he had approached a former Spar human resources employee about it and that he became eligible to join the DRS plan upon the transfer of his employment. The tribunal found no evidence that Mr. Hiscocks communicated with anyone at DRS regarding the DRS plan between 1997 and 2004 when he eventually enrolled in the plan or that he would have joined the DRS Plan in 1997.
In February 2013 Mr. Hiscocks requested that he be allowed to buy back past service for the period from 1997 to 2004. DRS denied his request and he subsequently took the issue to the Financial Services Commission of Ontario. On April 10, 2015 the Superintendent issued a Notice of Intended Decision refusing to make an order that Mr. Hiscocks be allowed to complete the buy back. This gave rise to Mr. Hiscocks’ right to request a hearing before the tribunal.
At the hearing the tribunal framed the issues as:
- Did DRS contravene or is it in contravention of section 25 of the Act?
- If the answer to issue (a) is yes, what order, if any, should the tribunal direct the Superintendent to make?
Section 25 of the PBA, in combination with section 38 of Ontario Regulation 909 sets out the information required to be provided in writing to each person who will be eligible or is required to become a member of a plan. The tribunal found that as of the date of the sale of assets to DRS, Mr. Hiscocks was neither a person “who will be eligible. . .to become a member of the [Plan]”, a new member, newly eligible to become a member, or a new hire and therefore neither section 25 of the PBA or section 38 of Reg 909 applied to him.
The tribunal noted that the panel was essentially being asked whether DRS had an obligation as a successor employer to remind employees who were not Spar plan members, but were eligible to immediately join the plan, that they remained eligible thereafter. The tribunal stated that while there is no such obligation under the PBA, the best practice would be for successor employers to confirm continuing eligibility on the date of sale. Ultimately the tribunal held that it was reasonable for a successor employer such as DRS to accept the continuing waiver of membership by Mr. Hiscocks until such time as he applied for membership.
The result was that DRS was held to not have contravened s 25 of the PBA. The panel went on to note that, even if a contravention had been held to have occurred, there is no remedy specified under the PBA and the tribunal has no jurisdiction to award civil damages. Mr. Hiscocks has applied to the Divisional Court for judicial review of the Tribunal’s decision; no date has been set.
Jason R. Paquette is a student at law at Financial Services Commission of Ontario