Pensions - Teachers' Pension Act. Monteiro v. CEO Financial Services Regulatory Authority
In Monteiro v. CEO Financial Services Regulatory Authority (Div Court, 2023) the Divisional Court considered pension claims by a long-term night-school teacher lacking credentials. Here the court sets out the associated application, appeal procedure, involved parties, statutory history and administrative steps in the case:
 Oscar Monteiro (the “Appellant”) taught part-time night school credit courses for the Toronto Board of Education (“TBE”)  between September 1980 – June 1989 (the “TBE Services”) without being formally qualified as a teacher. He also taught similar courses for other school boards prior to obtaining his teaching qualifications in 2003 (the “Other Services”). In this decision, I refer to the TBE Services and the Other Services, collectively, as the “Services”.
 The Appellant did not receive any pension credits (“Credits”) from the Ontario Teacher’s Pension Plan (the “Plan”) for any of the TBE Services. Nor did he receive any Credits for any of his Other Services, save 16.5 days earned in 1978-79. In the period from about 1980 to 2003, the Appellant did not make the required employee contributions to the Plan.
 Starting in 2006, the Appellant has attempted to obtain Credits for his non-qualified teaching Services. After he was turned down by the Plan’s Board (the “OTPPB”), he turned to the Financial Services Regulatory Authority (the “FSRA”). After considering the Appellant’s request the Respondent, Chief Executive Officer of the FSRA (the “CEO"), issued a Notice of Intention to Decide (“NOID”), stating the intention to refuse the Appellant’s request. The Appellant then applied to the Ontario Financial Services Tribunal (the “Tribunal”) to reverse the NOID and grant him Credits for the TBE Services. Although he did not raise the issue with the FSRA, the Appellant also sought a Tribunal order granting him Credits for the Other Services as well.
 On December 15, 2021, after a hearing de novo, the Tribunal dismissed the Appellant’s application. Instead, it ordered the CEO to carry out the terms of its NOID. The Appellant appeals that order to this court.
 The Respondent OTPPB is the administrator of the Plan. The OTPPB’s statutory obligations are set out below. Participating employers have an obligation to enroll eligible members in the Plan.
 The Respondent CEO is responsible for the management and administration of the Financial Services Regulatory Authority (the “FSRA”), an independent regulatory agency created under the Financial Services Regulatory Authority of Ontario Act. Under s. 3(1) and 3(3) of that statute, two of the objects of the FSRA are to promote good administration of pension plans and to protect and safeguard the pension benefits and rights of pension plan beneficiaries.
 The FSRA and its CEO are required to ensure the compliance of a pension plan or fund’s administrator with the requirements of the Pensions Benefit Act (“PBA”), its regulations, the FSRA’s rules and the terms of the pension plan. Under s. 87(1) of the PBA, the CEO may make an order requiring a pension plan or fund’s administrator to take or refrain from taking any action in respect of a pension plan or a pension fund in order to ensure such compliance.
 The uncontradicted evidence of Michael McAllister, the OTPPB’s Director of Quality and Risk Management, was that it “has always limited Plan membership to properly qualified teachers.” Further, in the OTPPB’s “experience, during the period of Alleged Service the controls on the part of school boards regarding unqualified teachers were lacking.”
 Mr. McAllister also testified that in the normal course, when an LOP is granted by the Minister, a copy goes to the relevant board of education and another copy goes to the employee.
Statutory Obligations of the OTPPB
 Under s. 3 of the Teacher’s Pension Act, (the “TPA”), the OTPBB is required to administer the Plan in accord with the TPA, the Plan’s terms, the PBA and its regulations. Section 19(1) of the PBA imposes similar requirements, as does ss. 147.1(7)(a) of the Income Tax Act (Canada.). The Minister of Finance may revoke a pension plan’s registration if it is not administered according to the Income Tax Act (Canada.): s. 147.1(11).
 Section 22(1) of the PBA requires the OTPPB to “exercise the care, diligence and skill in the administration and investment of the pension fund that a person of ordinary prudence would exercise in dealing with the property of another person.” As the Tribunal found, based on the plain wording of the provision, that standard is not one of strict liability; it is reasonableness, not perfection.
 The PBA places a fiduciary duty on the OTPPB to each of the Plan’s members. That duty must be interpreted in light of the OTPPB’s duty of even-handedness to each class of beneficiaries under the Plan. That means, in part, that each class of beneficiaries receives exactly what the Plan’s terms call for, nothing more, nothing less. The OTPPB may not “give an advantage or impose a burden when that advantage or burden is not found in the terms of the plan documents”. It would breach the OTPPB’s fiduciary duties to its members if it granted benefits to persons who were not legitimately entitled to those benefits.
Statutory Requirements for Plan Credits
 From 1980 – August 1, 1984, the terms of the Plan were contained in the Teacher’s Superannuation Act, 1980, (the “1980 TSA”). During that period, s. 24(1) of 1980 TSA limited participation in the Plan to persons who were “enrolled” in accord with the Plan’s terms. The term “employed” was defined in s. 1(1)(d)(xiv) of the 1980 TSA as excluding anyone who “is not qualified as a teacher under the Education Act and the regulations under that Act”.
 Section 1(2) of the 1980 TSA stated that every person who received a certificate of qualification, letter of standing or LOP “shall be deemed to be qualified as a teacher for the purposes of this Act so long as his certificate or letter of standing or letter of permission granted in respect of him, remains valid”.
 Under s. 24 of the 1980 TSA, the requirement to contribute to the Plan and thus obtain Credits is limited to those “employed”, as defined above.
 The 1980 TSA was amended in 1983 (the “1983 TSA”), but its terms requiring Plan members to be “qualified as a teacher” remained virtually identical to those of its previous iteration.
 Thus, the relevant statutory regime required the Appellant to have been granted an LOP each year in order to be eligible for membership in the Plan. No authority has been presented to this court that demonstrates a change in this obligation at any time before 2003.
 The Appellant first raised the issue of his Credits for the TBE Services in 2006, 17 years after he ended his work with the TBE. Lacking possession of any LOPs for the TBE Services, the Appellant made a number of requests to the Toronto District School Board (the “TDSB”), the successor of the TBE, to search its records. He asked the TDSB to find what he claimed to be his missing LOPs. Evidence presented to the Tribunal demonstrates that the TDSB made a number of unsuccessful searches of its records for any LOPs that may have been granted to the Appellant for the period during which he provided the TBE Services.
 In his email to the Appellant of April 21, 2009, Jim Bliangas of the TDSB wrote “we have done a thorough search and have found nothing to indicate that you had an LOP." In an email fifteen months later, on July 21, 2010, Cori Byberg of the TDSB, explained the TDSB’s inability to locate any LOPs for the Appellant as follows:
I would like to assure you that we have done an exhaustive search of all [TDSB] records in an effort to satisfy your inquiry. I can confirm that there are no Letters of Permission on file for any of the work you have performed for TDSB and the former Toronto Board of Education. I'm sure that you can appreciate that we are not able to provide you with documentation that does not exist. In a decision dated November 30, 2016, a six-member panel of the OTPPB’s Benefits Adjudication Committee rejected the Appellant’s claim to Credits allegedly earned while performing the TBE Services. It determined that he had not been qualified as a teacher at the time he performed the TBE Services. The Appellant was not the only person in that position. The OTPPB had previously rejected claims to Credits by other non-qualified teachers who failed to prove that they had received LOPs during their terms of service. As it argued before the Tribunal, the OTPPB felt that its duty of even-handedness under the PBA prevented it from making an exception for the Appellant.
 Following this decision, the Appellant applied to the FSRA for a determination that he was entitled to Credits for the Services. His application did not deal with the Other Services. On March 19, 2021, the CEO issued the NOID, stating that the FSRA intended to deny his request.
 The Appellant then applied to the Tribunal to rescind the NOID and for an order granting him Credits for the TBE Services. Although the issue had not been before the FSRA, the Appellant nonetheless sought an additional order, granting him Credits for the Other Services.
The Tribunal’s Decision
 The Tribunal found that neither the PBA nor the terms of the Plan require the FSRA to grant Credits to the Appellant for the TBE Services in the absence of an LOP for each school year in which Credits are sought. It further found that the onus lay with the Appellant to prove that he had obtained LOPs for the period during which he offered the TBE Services.
Issue No 1: Did the Tribunal err in law in finding that the Appellant required an LOP for each year in which he claimed Credits for the Services?
 In an appeal of the NOID of the CEO, the Tribunal’s jurisdiction is constrained by s. 89(9) of the PBA to ensuring compliance with the statute and its regulations. Section 89(9) reads as follows:
Power of Tribunal Thus, the Tribunal’s jurisdiction is strictly limited to remedies available under the PBA. It could order the CEO to carry out the NOID, refrain from doing so, or otherwise comply with the provisions of the PBA. It may not exercise its discretion to make orders contrary to the PBA and by implication, the terms of the Plan. The Tribunal could not order the CEO to grant Credits to the Appellant in the absence of LOPs for the years that he worked as a non-qualified teacher for the TBE or any other school board. Thus, in order to grant him credits for the TBE Services or Other Services, it must have found that he had been granted LOPs for the relevant period of time.
(9) At or after the hearing, the Tribunal by order may direct the Chief Executive Officer to make or refrain from making the intended decision indicated in the notice and to take such action as the Tribunal considers the Chief Executive Officer ought to take in accordance with this Act, the regulations and the Authority rules, and for such purposes, the Tribunal may substitute its opinion for that of the Chief Executive Officer.
 The PBA does not allow for exceptions to the application of the eligibility criteria of the 1980 TSA and the 1983 TSA. It does not allow the Tribunal to expand the definition of the term “qualified as a teacher” to include non-qualified teachers. Nor does it allow the Tribunal to decide whether the Appellant should have received LOPs for a period when he did not receive them. Rather, it clearly limits eligibility for Credits to those who have been found to have been granted a certificate of qualification, a letter of standing, or an LOP.
 The Appellant asserts that the decision of this court, as upheld by the Ontario Court of Appeal in Hall v. Ontario Teachers' Pension Plan Board  stands for the proposition that all part-time teachers should have been entitled to Credits for their service prior to 1984. Based on the Hall decision, he says that he should have received Credits for his unqualified part-time teaching as well. However, as the Tribunal pointed out, Hall was concerned with the pension entitlements of qualified part-time teachers, not their non-qualified colleagues. Because of this distinction, Hall does not assist the Appellant.
 For those reasons, I find that the Tribunal was correct in making the legal finding that under the terms of the Plan and the relevant statutes and regulations, the Appellant was only eligible to receive Credits for the Services if it is proven that he had an LOP for each year claimed. It had no discretion to find otherwise.