IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended (the APBA@);
AND IN THE MATTER OF a Proposal of the Superintendent of Financial Services to Refuse to Make an Order under section 87 of the PBA respecting a request by Ms. Rose Conforti relating to the Toronto Transit Commission Pension Fund Society, Registration Number 0317586;
266 Royal Park Way
Woodbridge ON L4H 1J8
John D. Cannell
Manager, Pension Fund Society
Toronto Transit Commission Pension Fund Society
1900 Yonge Street
Toronto ON M4S 1Z2
NOTICE OF PROPOSAL
I PROPOSE TO REFUSE TO MAKE AN ORDER in respect of the claim of Rose Conforti (“Ms. Conforti”) that the Toronto Transit Commission Pension Fund Society (the “Plan”) is not being administered in accordance with the Plan documents, and the PBA, pursuant to section 87(2)(a) of the PBA.
- Ms. Conforti is the former spouse of a member of the Plan. In the course of their divorce proceeding, the member’s pension was valued for purposes of a division of family property under the Family Law Act.
- Ms. Conforti takes the position that the valuation of her former spouse’s pension does not fully reflect the value of the pension and that the value of the pension that was attributed to her as a result of the divorce proceeding does not reflect her correct entitlement. Ms. Conforti has written to staff of the Financial Services Commission of Ontario on a number of occasions, both during and subsequent to the divorce proceeding, claiming that the Plan administrator has breached the PBA and Plan by-laws in a number of ways.
- Ms. Conforti, in a letter dated October 21, 2006, has requested that the Superintendent of Financial Services (the “Superintendent”) prosecute the Plan administrator and issue an Order against the Plan administrator under section 87 of the PBA. The crux of her complaint is that:
a) the Plan administrator breached the PBA by not providing to her on a timely basis records and information regarding her former spouse’s pension and the by-laws of the Plan, which Ms. Conforti alleges resulted in a valuation that does not reflect the full value of the pension;
b) the Plan administrator is not properly interpreting the PBA or the Plan’s by-laws as they pertain to making and crediting of employer or member contributions, resulting in miscalculations and a valuation that does not reflect the alleged full value of the member’s pension;
c) the Plan administrator, in its dealings with Ms. Conforti, breached its duty to use all relevant knowledge and skill in the administration of the Plan under section 22 of the PBA.
- Based on the information provided, Ms. Conforti has not demonstrated that the Plan administrator has breached the PBA or Regulation 909, R.R.O. 1990, as amended, or is not administering the Plan in accordance with its by-laws.
- The member, whose pension was subject to valuation as family property under the Family Law Act, had not terminated membership in the Plan at the time of the divorce proceeding. Where a member has not terminated membership in a plan, the plan’s obligations to provide information are set out in section 29 of the PBA and section 45 of Regulation 909. This information does not include specific information pertaining to the pension of Ms Conforti’s former spouse. That information can only be disclosed to Ms. Conforti with the permission of the member or by court order. The record provided by Ms. Conforti indicates that the Plan administrator has provided her with the information required by section 29 of the PBA and section 45 of Regulation 909, and there is therefore no basis for issuing an Order against the administrator of the Plan with respect to this request.
- Ms. Conforti has submitted that the Plan administrator has not complied with funding standards or contribution requirements that are set out in the PBA and or Plan’s bylaws, and that the failure to comply with these standards resulted in a valuation that does not reflect the full value of the member’s pension when calculating the equalization of family property in her divorce proceeding. The funding requirements of the PBA and the Plan’s by-laws do not have any application to the valuation of an individual member’s pension for Family Law Act purposes, and the Superintendent does not have jurisdiction under the PBA to review that valuation.
- As the Plan administrator has provided Ms. Conforti with the information that is required by the PBA and Regulation 909, and the Plan’s funding and contribution obligations are irrelevant to the valuation of the member’s pension in this instance, Ms. Conforti has not demonstrated that there is a basis for making an order against the administrator of the Plan under section 87(2)(a) of the PBA.
- Such further and other reasons as may come to my attention.
YOU ARE ENTITLED TO A HEARING by the Financial Services Tribunal (the “Tribunal”) pursuant to section 89(6) of the PBA. To request a hearing, you must deliver to the Tribunal a written notice that you require a hearing, within thirty (30) days after this Notice of Proposal is served on you.*
YOUR WRITTEN NOTICE must be delivered to:
Financial Services Tribunal
5160 Yonge Street
Toronto ON M2N 6L9
Attention: The Registrar
FOR FURTHER INFORMATION on the Form to be used for the written notice, please see the Tribunal website at www.fstontario.ca or contact the Registrar of the Tribunal by phone at 416- 590-7294 or toll free at 1-800-668-0128, ext. 7294, or by fax at 416-226-7750.
IF YOU FAIL TO REQUEST A HEARING WITHIN THIRTY (30) DAYS, I MAY CARRY OUT THE PROPOSAL AS DESCRIBED IN THIS NOTICE.
DATED at Toronto, Ontario, this 24th day of January, 2007.
K. David Gordon
Deputy Superintendent, Pensions
*NOTE - Pursuant to section 112 of the PBA any Notice, Order or other document is sufficiently given, served or delivered if delivered personally or sent by regular mail and any document sent by regular mail shall be deemed to be given, served or delivered on the seventh day after the date of mailing.