The merits of this hearing involved the issue of whether the Applicant met the eligibility requirements for membership in the Carpenters’ Local 27 Pension Plan (“Plan”), and if so, was he entitled to a pension from that Plan. The Financial Services Tribunal (“Tribunal”) had previously issued a decision on January 8, 2015 (2015 ONFST 1) dismissing the request made by the Applicant for a written hearing.
In its January 8, 2015 decision, the Tribunal had held that an oral hearing would ensure proper cross-examination of witnesses and a fair hearing. The Tribunal then issued a Notice of Intention to Dismiss the Applicant’s Request for Hearing on the basis that the Applicant failed to attend the scheduled hearing on December 12, 2014. The Notice of Intention to Dismiss was subject to the condition that the Applicant could file with the Tribunal a written commitment to attend an oral hearing within 30 days of the Notice of Intention to Dismiss being issued.
Pursuant to Rule 45 of the Tribunal’s Rules of Practice and Procedure, the Applicant then filed a Request for Review of the Tribunal’s January 8, 2015 decision. The Applicant’s Request for Review laid out the same factual and legal arguments that the Applicant had made in his written submissions filed before the hearing scheduled for December 2014. The Applicant reiterated that he was in ill health and of old age, that he was unable to travel from Jamaica to attend an oral hearing, and that he continued to have difficulties retaining legal counsel. The Applicant requested that the matter continue either as a written or an electronic hearing.
The Tribunal was satisfied that there were no grounds to overrule its January 8, 2015 decision to deny the Applicant’s request for a written hearing. The Tribunal observed that it had previously given the Applicant’s request full consideration and that the Applicant did not raise any new evidence or arguments. The Tribunal agreed with the observations made in its January 8, 2015 decision that the Applicant had the evidentiary burden in the matter and was required to call oral evidence to satisfy this burden. The Tribunal observed that oral evidence subject to cross-examination was required to resolve the material facts in dispute.
The Tribunal, however, did grant the Applicant’s novel request for an electronic hearing – a request that was not previously made before the Tribunal’s January 8, 2015 decision but had been raised informally during the parties’ pre-hearing conferences. The Trustees of the Plan argued that a request for an electronic hearing could not properly be the subject of a Request for Review. The Tribunal, though, concluded it could consider this request given the unique circumstances of the matter, mainly that the Applicant was not represented and in bad health; that adequate facilities were available to conduct an electronic hearing; and that this would allow the Applicant to provide oral evidence subject to cross-examination.
The Tribunal held that the equipment used by the Applicant in Jamaica must be compatible with the Tribunal’s equipment and must provide for an uninterrupted and clear transmission of audio and video content. The Tribunal also ordered that the Applicant pay all costs incurred in Jamaica associated with the audio and video conferencing.
Despite granting the Applicant’s request, the Tribunal stated that no further adjournments will be requested by or granted to Applicant once hearing dates were set. Finally, the Tribunal stated that it retained the discretion to terminate the hearing if there were any interruption of the audio and video connection during the hearing.
Case cited: Shi v. Ontario (Superintendent of Financial Services), 2013 ONFST 14
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