King v. Superintendent of Financial Services
FST File No.: P0527-2013
Date of decision: July 31, 2015
Parties: Richard King; Superintendent of Financial Services
SUBJECT: NOTICE OF INTENT TO DISMISS
The Applicant claimed benefits entitlement from the Carpenters’ Local 27 Pension Plan (the “Plan”). On July 18, 2013, the Superintendent of Financial Services (“Superintendent”) issued the Notice of Intended Decision (“NOID”) indicating his intention to refuse to issue an order requiring the payment of a pension to the Applicant from the Plan. Subsequently, requests for a hearing were filed by the Applicant on August 20, 2013 and August 28, 2013. A hearing was scheduled in front of the Financial Services Tribunal (“FST”) for December 12, 2014 for which proper notice had been given. The Applicant failed to appear at the hearing.
On January 8, 2015, the FST issued a Notice of Intention to Dismiss the Applicant’s Request for a Hearing without a hearing due to the Applicant’s failure to appear at the December 12, 2014 hearing. The decision also noted the Applicant’s request for a written hearing was rejected because the matter required evidence and documentation through oral hearing. The Applicant had not provided disclosure of documents or filed submissions within agreed upon time limits set out at pre-hearing conferences.
The Applicant filed a request for review of the FST’s January decision on January 15, 2015. He made two requests:
1. To continue by way of written hearing, which was not granted; and
2. To continue by electronic hearing which was granted on certain conditions including that the Applicant meet audio and video connection requirements from his location in Jamaica.
A hearing date for the electronic hearing was fixed with the consent of all parties at June 29, 2015.
On the date of the hearing, the Applicant failed to maintain both video connection and telephone contact to adequately conduct the hearing. As a result, no evidence was put forth by the Applicant who bore the onus of providing at least a prima facie case of entitlement under the Plan.
In addition, the FST dismissed a written motion and related submissions by the Applicant made a few days prior to the June 29, 2015 hearing asking the Chair to recuse himself because: (1) the Applicant’s credibility was allegedly questioned in an earlier decision; and (2) the Applicant was denied the right to counsel in the electronic hearing process. Submissions opposing the motion were made by Counsel for both the Superintendent and Trustees. In denying the motion, the FST stated there were significant material facts that were in dispute such that the credibility of all witnesses would be in issue but no findings of credibility were made against the Applicant or otherwise. Further with respect to the Applicant’s right to counsel, the Applicant had acknowledged that the possibility of his being able to retain Counsel willing to act on a contingency fee or pro-bono basis was very remote. The FST said the Applicant was not denied right to Counsel, he was simply not successful over an extended two year period in obtaining representation.
The Request for Hearing by the Applicant was dismissed without further notice and the Superintendent was directed to carry out the NOID.
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