S.R. v. Superintendent of Financial Services and OMERS Administration Corporation
FST File No.: P0511-2012
Date of decision: February 18, 2014
Panel members: Elizabeth Shilton (Chair), Patrick Longhurst, Shiraz Bharmal
Parties to hearing: S.R.; Superintendent of Financial Services; OMERS Administration Corporation
SUBJECT: MOTION FOR DECISION BEFORE ALL EVIDENCE WAS HEARD
The Superintendent of Financial Services (the “Superintendent”) issued a Notice of Intended Decision on August 8, 2013 refusing to order OMERS Administration Corporation (“OMERS”) to pay survivor benefits to S.R. on the basis that S.R. was not a “spouse” as that term is defined in the Pension Benefits Act. S.R. requested a hearing on November 16, 2012.
At the pre-hearing conference on February 25, 2013, full party status was granted to OMERS.
The hearing commenced on August 7, 2013. S.R. indicated after a few hours on that day that she was withdrawing her hearing request. However, she rescinded her request the next morning and the Tribunal subsequently issued a decision allowing her to rescind her withdrawal.
The hearing resumed on October 30 and 31, 2013. S.R. called three witnesses (one by DVD, one by affidavit, and one live) and then testified on her own behalf. During her testimony in chief on October 31, she became ill and the hearing could not continue.
S.R. then brought a motion requesting the Tribunal to issue a decision based on the evidence that had been presented. The Superintendent and OMERS opposed the request, primarily on the basis that this was a case where much depended on credibility and S.R. had not yet been cross-examined. In addition, OMERS had not yet called its witnesses.
The Tribunal dismissed the motion on the basis that S.R.’s credibility was the central issue and she had not yet been cross-examined. Without prejudging the case, the Superintendent and OMERS were not being unreasonable in seeking to challenge S.R.’s credibility. While there have been cases in which witnesses have not been cross-examined due to illness, death, or disappearance, in this case the medical evidence was too vague to support S.R.’s claim that she could not continue with the hearing. If S.R.’s motion was granted, this would result in a denial of natural justice to OMERS and the Superintendent, particularly because OMERS had not yet had a chance to call its witnesse.
The Tribunal ordered that S.R. was given leave to withdraw her hearing request if she chose to do so. If S.R. wished to resume the proceeding, she was to give notice within 30 days of February 18, 2014 to the Tribunal Registrar and to the other parties. If no such steps were taken, the application would be dismissed. Finally, the anonymization order made on September 3, 2013 was to remain in place and become permanent if the matter proceeded no further, and any party seeking an order to keep the record or part of it confidential must advise the Registrar within 30 days of February 18, 2014.
Cases referred to:
Bank of Montreal v. Drycreek Livestock Enterprises Ltd., M.J. No. 325 (QB)
Canadian Union of Public Employees, Local 79 (Bodnar Grievance), O.L.A.A. No. 71
R. v. Cameron, O.J. No. 1928 (CA)
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