[1]           As a result of the NOID in which the Respondent refused to issue an order under section 87 of the Act requiring the Added Party (the “Board” or “Teachers’ Board”) to recognize the Applicant’s employment from 1980-1989 as qualifying for Plan membership and pensionable service, the Applicant commenced this proceeding.

[2]           While the Tribunal is not without sympathy for the Applicant’s circumstances, based upon the evidence, submissions and analysis set out below, the Tribunal dismisses the Applicant’s claims and orders the Respondent to carry out the NOID.

[3]           The following issues to be considered by the Tribunal in this hearing were set at the first pre-hearing conference by order of the Chair:

[4]           In cases such as this the Applicant bears the burden of proving on a balance of probabilities that he has an entitlement under the pension plan – i.e., that he is entitled to be credited for the Alleged Service/Other Service under the Plan.^[2]  This fundamental burden of proof may shift if the evidence of the party bearing the burden raises a prima facie case.  In such event, the evidentiary burden may shift to another party.^[3]

[5]           Section 87 of the Act states that, subject to section 89, the Respondent may make an order requiring an administrator or any other person to take or refrain from taking any action in respect of a pension plan or a pension fund if the Respondent is of the opinion, upon reasonable and probable grounds,

[6]           Under section 19 of the Act, the Teachers’ Board, as the Plan administrator, is required to ensure that the Plan is administered in accordance with the Act, the regulations thereunder, and the Plan as filed.

[7]           The Plan administrator is a fiduciary and must discharge its Plan obligations with care, diligence and skill in accordance with the following provisions of section 22 of the Act:

[8]           Section 23 of the Act provides that an employer who participates in a pension plan “shall provide to the administrator of the pension plan any information required by the administrator for the purpose of complying with the terms of the pension plan or of this Act, the regulations or the [FSRA] rules.”

[9]           The Plan terms are contained in the prevailing Teachers’ pension legislation set out below.

[10]        The Teachers’ Board was continued by the Teachers’ Pension Act, R.S.O. 1990, c. T.1 (the “TPA”). Under section 3 of the TPA, the Teachers’ Board is required to administer the Plan in accordance with the TPA, the Act, and the Income Tax Act (Canada), R.S.C. 1985, c. 1 (5th Supp.) (the “ITA”).

[11]        Pre-1990 - The Plan terms with respect to the relevant periods of Alleged/Other Service are contained in the prevailing prior Teachers’ pension legislation set out below.

[12]        Paragraph 147.1(7)(a) of the ITA requires the Teachers’ Board, as Plan administrator, to “administer the plan in accordance with the terms of the plan as registered.” Contravention of paragraph 147.1(7)(a) could make a pension plan’s registration under the ITA revocable under subsection 147.1(11) with attendant tax consequences.

[13]        The Alleged Service relates to the period from September 1980 through June 1989.

[14]        The relevant Plan terms from September 1980 until August 1, 1984 were contained in the Teachers’ Superannuation Act, 1980, R.S.O. 1980, c. 494 (the “TSA 80”).

[15]        Under the TSA 80 (in respect of Alleged Service Sept/80 through Aug/84):

[16]        The relevant Plan terms from September 1, 1984 through to December 31, 1989 were contained in the Teachers’ Superannuation Act, 1983, S.O. 1983, c. 84 (the “TSA 83”).

[17]        Under the TSA 83 (in respect of Alleged Service Sept/84 through June/89):

[18]        Section 1(2) of the TSA 80 and section 1(2) of the TSA 83 are substantially similar with respect to the requirements to be “qualified as a teacher”, including certificates of qualification, letters of standing and LOPs.  Letters of standing apply to teachers qualified in other jurisdictions who wish to teach in Ontario and are therefore not applicable here.

[19]        “Teacher” is defined under the Education Act^[4] as a member of the Ontario College of Teachers. To become a member of the Ontario College of Teachers a person must become qualified by being certified as a teacher by the College to teach in Ontario’s publicly funded schools.

[20]        A school board is entitled to apply for an LOP under circumstances where they are unable to find a qualified teacher for a specific position.

[21]        In this regard, paragraph 8(1)(j) of the Education Act, in force in 1980 at the start of the Alleged Service, authorizes the Minister of Education to grant an LOP (for a term not exceeding a year) authorizing a school board to employ as a teacher a person who is not qualified as such if the Minister is satisfied that no qualified teacher is available.  In addition, school boards may, in accordance with regulations (see below), temporarily hire unqualified persons to teach in emergency situations without LOPs for up to ten days per school year.

[22]        The following Regulations under the Education Act reflect school boards’ ability to employ unqualified teachers in emergency situations for a maximum period of 10 days per school year without obtaining an LOP.

[23]        While the parties filed an Agreed Book of Documents (“ABD”), they were unable to reach agreement on an Agreed Statement of Facts.  Based upon the testimony of the Applicant and the Added Party’s witness, Michael McAllister (Director, Quality and Risk Management with the Teachers’ Board), including witness statements, affidavit, ABD and other documents admitted into evidence at the hearing, the Tribunal accepts the following facts for purposes of determining the issues in this matter:

[24]        There is no dispute concerning whether or not the Applicant actually worked as a teacher for the period of Alleged Service.  Nor is there a dispute with respect to the Applicant’s employment described as Other Service, except to the extent such Other Service was not included in the investigations leading up to the NOID or the intended decision of the Respondent set out therein.  Leaving aside the technical (but valid) question of the Tribunal’s jurisdiction in this proceeding with respect to Other Service, the submissions of the Added Party and Respondent clearly draw no distinction between the two periods of service for purposes of their position that for all periods of service to qualify as pensionable service under the Plan terms, they must be periods of service worked for a participating employer by a qualified teacher under a certificate of qualification, a letter of standing or an LOP.  It is undisputed that the Applicant has not been able to produce any of these documents to support his claims.

[25]        The Applicant acknowledges that he was not a certified teacher until 2003.  He describes himself as an “innocent victim” and alleges that it is not up to him to produce evidence of an LOP to support his claim, but rather it is up to the Teachers’ Board to prove that he was not granted an LOP.  The Applicant was a member of the Plan prior to 1980 for 16.5 days and says that, notwithstanding the fact that no pension contributions were ever deducted from his pay during the Alleged Service with the TDSB (and the TBE) throughout the 1980s, he thought he was still an active Plan member, or, in the alternative, he was justifiably confused about his membership status.  Nevertheless, the Applicant urges the Tribunal to conclude in his favour by assuming that because he worked for participating employers teaching credit courses as an uncertified teacher, LOPs must have been obtained by such employers, but have been lost since extensive searches has not located them.  The Tribunal does not find these arguments persuasive.

[26]        The Applicant submits that, as Plan administrator, the Teachers’ Board must, in the circumstances, grant his service credit claims in order to properly discharge its fiduciary responsibilities under the Act.  We will return to the subject of the Board’s fiduciary duties later in this decision, but it is somewhat ironic that it is the observance of this very fiduciary duty in the administration of the Plan terms under the Act that compels the Board to deny the Applicant’s claims.  Section 87 of the Act requires there to be reasonable and probable grounds that the Plan is not being administered in accordance with the Act or the Plan text, or that the Board is contravening the Act or the regulations. It is up to the Applicant to prove any such allegations on a balance of probabilities.

[27]        The Board’s responsibility as Plan administrator is to administer the Plan in accordance with its terms and the Act as a fiduciary pursuant to the statutory standard of care set out in section 22 of the Act.  In so doing, the Board must administer the terms of the Plan as written and certainly cannot knowingly ignore or constructively amend such terms even if such action purports to remedy an unfortunate situation.  The Tribunal finds that in administering the Plan the Board is required to credit service only in circumstances of eligibility where proof of being “qualified as a teacher” is properly filed with the Board by the employing school board or otherwise.  In the Applicant’s case, this means the Board must receive LOPs to confirm that the Applicant was a qualified teacher.  At the relevant times, the Plan (through TSA 80 and TSA 83) clearly limited membership to persons who were employed as a qualified teacher.^[5] In this regard, the Plan deemed an individual to be a qualified teacher if the individual either: 

[28]        The Tribunal finds that the answers to Issues 1 and 2 are no.  As detailed below, there is no provision under the Act or the Plan requiring the Teachers’ Board to credit the Applicant with the Alleged Service, or any other contested service under the Plan, in the absence of a certificate of qualification, a letter of standing or an LOP. On the contrary, the Board would be in breach of the terms of the Plan and the Act if credited service were granted to an individual who does not satisfy the requirements of the Plan to be “qualified as a teacher” in respect of such service.

[29]        The Applicant has not proven, on a balance of probabilities, that LOPs were granted for the Alleged Service or any other service for which the Applicant has not already been credited. The evidentiary burden has not shifted because the Applicant has not established a prima facie case that he taught under LOPs during the period 1980-2003.

[30]        The Plan terms are clear. Under the relevant sections of the TSA 80 and the TSA 83, respectively, a period of employment is eligible for service credit only if the claimant has been employed as a qualified teacher. The relevant Plan terms provide that to be a qualified teacher a person must have a certificate of qualification, letter of standing, or an LOP. There is no dispute that the Applicant did not have a certificate of qualification or a letter of standing during the period of the Alleged Service. Therefore, in the Applicant’s case an LOP is required in order for his service to be credited under the Plan.^[7]

[31]        The TPA, the Act, and the ITA all require the Teachers’ Board to administer the terms of the Plan as written and as registered. The Plan does not confer any discretion on the Board to ignore the requirement of an LOP for any person. Nor is the Board authorized under the Plan to make a determination as to whether or not an LOP “likely” existed in the absence of actual confirmation of an LOP. Similarly, no such provisions are provided under the Act.  The Board must have evidence that an individual is a qualified teacher if it is to grant a period of historical service. With respect to the Applicant, this evidence must be in the form of LOPs and the Board must actually receive copies of the LOPs to credit applicable service.

[32]        Even if the Board had discretion to make a determination as to whether or not an LOP likely existed in the absence of actual confirmation of an LOP (which we find it does not), the evidence before the Tribunal does not support a finding that LOPs were granted in respect of the Alleged Service. In fact, if any LOP had been issued during the period of Alleged Service, then under the Ministry’s normal practice, both the Applicant and his employer would have received a copy.

[33]        The Applicant argues that LOPs should have been obtained for the Applicant to be teaching evening and night courses for credit during the period of Alleged Service. As such, the Applicant has asked the Respondent, and now the Tribunal, to assume that LOPs were granted to the school board and have simply been lost.

[34]        The Applicant has provided documentation relating to his employment with the TBE (predecessor to the TDSB) as a night school instructor during the period of Alleged Service, however, it is not whether the Applicant was employed by TBE that is at issue. What is at issue is whether such employment at the time satisfied the requirements of the Plan for the Applicant to have been deemed employed during the Alleged Service as a “qualified as a teacher” under subsection 1(2) of TSA 80 and TSA 83.  The Applicant has provided no confirmation that he was so qualified during the Alleged Service. On the contrary, the evidence indicates that no LOPs could be found despite exhaustive searches.  As stated above, in 2010 the TDSB responded to the Applicant following several unsuccessful searches by saying “you can appreciate that we are not able to provide you with documentation that does not exist”.

[35]        The TDSB again confirmed (in a letter dated November 8, 2013) that the TDSB conducted a “thorough search” of the available records and were unable to locate copies of LOPs for the Alleged Service.  The evidence is not that LOPs were issued, but lost.  There is no hard, non-speculative, evidence that the TDSB or TBE ever applied for LOPs in respect of the Applicant or that LOPs were ever granted.  However, the TDSB notes in its November 8, 2013 letter that they “have reason to believe the TBE would have applied for and received the Letters of Permission to allow him [the Applicant] to teach night school at that time.”  The letter goes on to say “We do not have any information that would indicate that the TBE did not apply for nor receive such Letters of Permission.”  The letter ends by saying that “If the OTPPB decides to add this service to Mr. Monteiro’s record, you may invoice us for his post-September 1984 service, and we will make payment accordingly….the pre-September 1984 service should be collected directly from Mr. Monteiro.”

[36]        While perhaps well meaning, the speculation in this letter is unsupported by the evidence.  From 1980-2003 LOPs were not submitted by the TDSB/TBE to the Board, nor was the Applicant enrolled in the Plan by the TDSB/TBE as an active contributing Plan member as one would expect if this speculation were accurate.  The problem with these statements by the TDSB (and reliance on them by the Applicant) is that they put forward as a positive argument the inability of either the TDSB or the Teachers’ Board to essentially prove a negative proposition.

[37]        The inability of the TDSB or the Applicant or the Teachers’ Board to prove a negative, does not persuasively prove (or support) an assumption that the LOPs were applied for by the TDSB/TBE or granted by the Minister.  The Applicant alleges that because it was the responsibility of the TDSB to obtain the LOPs, the Teachers’ Board’s insistence that the Applicant provide documentary evidence that he taught under LOPs is an unfair shifting of the burden of proof.  However, the burden of proving an entitlement for pension benefits is clearly on the individual seeking the benefits. The Applicant has the burden of showing that the Alleged Service is pensionable. The fact that the Applicant was dependant on the school boards to apply for LOPs does not shift the burden with respect to pension benefit entitlement. This fact also does not allow the Board or the Respondent to presume that LOPs were granted in the absence of persuasive hard evidence (e.g. if there was evidence of active Plan membership or some LOP grants but not a complete set).

[38]        Again, the Teachers’ Board has no discretion with respect to LOPs. The Board must administer the Plan in accordance with the Plan terms which, in the circumstances, require a determination by the Board under paragraph 1(1)(2) of TSA 80 and TSA 83 that the Applicant was a qualified teacher based on a “granted” certificate of qualification or LOP.

[39]        Without actual (or at the very least reasonable and verifiable) evidence of such grants, the Plan terms have not been met and the Board cannot act otherwise.  The Board cannot simply assume that the TDSB obtained LOPs for the Applicant because there are other possible explanations or based on the speculation of the TDSB, particularly given the Board’s experience that “controls on the part of school boards regarding unqualified teachers were lacking” at the relevant time.  In addition, the evidence before the Tribunal is that school boards were in fact permitted at the time to appoint people as temporary teachers without obtaining LOPs.^[8]

[40]        Given that an LOP may not, under the Education Act exceed 1 year, 10 LOPs would need to have been granted by the Minister to cover the Alleged Service years. The Tribunal finds that on a balance of probabilities, it is more probable to conclude that no LOPs were granted than to conclude that all 10 LOPs have been lost.

[41]        In summary, the Tribunal does not accept the Applicant’s arguments or the TDSB’s speculation that the TBE necessarily must have obtained an LOP for him at the relevant time. The Education Act permits a school board to appoint people as temporary teachers without obtaining LOPs. Moreover, the Board’s evidence is that the controls on the part of school boards regarding unqualified teachers were lacking making any such presumption of an LOP difficult and unreliable. Even if it were the case that the TBE was required to apply for LOPs, the Applicant and the TBE did not do so, such failure would not allow, and should not require, the Board to administer the terms of the Plan otherwise than as written and registered.

[42]        Overall, the evidence does not establish on a balance of probabilities that there were LOPs and that the Applicant was a qualified teacher for the period of the Alleged Service or for the other service. As such, there is no evidence to support a conclusion that the Plan is not being administered in accordance with the Act, the regulations, or the Plan.

[43]        The Applicant in his submissions and evidence raises a number of additional issues which the Added Party and the Respondent argue are not really part of the issues before the Tribunal as set out in Part III above and are therefore not within the scope of this proceeding. They submit that these additional issues are extrinsic to the issues for determination presently before this Tribunal.  Nevertheless, the Tribunal finds that, for clarification and completeness, it is desirable to address these issues.

[44]        The Board, as administrator of the Plan, has a duty of even-handedness that requires it to hold an impartial balance among beneficiaries.  The Board has a duty of care toward the Applicant as a member (since 2003 and prior as an inactive member), but also to all other members, to administer the Plan in accordance with the Act, the regulations, and the Plan.  In this context, the duty requires consistent application of the Plan’s terms to similarly situated members. The evidence before the Tribunal shows that the Board has denied grants of additional service credit to other night, summer and adult day school instructors who have failed to provide proof of LOPs. It would be contrary to the Board’s duty of even-handedness to make an exception in this case when it has not done so previously.^[9]

[45]        The Applicant’s submissions make new allegations not directly addressed in the NOID to the effect that the Applicant was not, in general, properly communicated with as an inactive Plan member (i.e., a pre-1980, 16.5-day inactive member) and was also not properly informed about the LOP requirements by the Teachers’ Board.  The Applicant submits that this alleged failure by the Board constitutes a failure to properly administer the terms of the Plan and follow the Act, and should be remedied by granting the Applicant’s service credit claims.  These allegations are denied by the Board.  Both the Board and the Respondent persuasively submit that, in any event, the allegations are outside of the scope of the Board’s authority relating to the issues in this proceeding.  Nevertheless, we intend to deal with such allegations and, following that, address the issue of Tribunal authority.

[46]        Specifically, the Applicant urges the Tribunal to find that the Board’s conduct over the years in failing (1) to contact him from 1980-2003 to inquire as to why he was no longer contributing and (2) to provide him with member statements and other Plan communications, resulted in delays which contributed to his inability to locate the LOPs supporting his claims.  The Applicant alleges that this constitutes a breach of the Plan, a breach of the Act and imprudent administration of the Plan by the Board which should be remedied by the Tribunal ordering the Board to fully reinstate the Alleged and Other Service, despite the terms of the Plan which clearly require LOPs to be received by the Board in conjunction with crediting such service.

[47]        We cannot agree with the Applicant’s position.  While we accept that the Applicant may have been confused about his pension status, he certainly bears a significant portion of the responsibility in the circumstances for not proactively inquiring of his employers and the Board to determine his pension status between 1980 and 2003.  In this regard, we find that the Applicant knew (or should have known) from his employment during those years and interaction with other teachers and from his past experience (albeit brief) as a Plan member in 1978, that Plan participation was accompanied by mandatory employee contributions, which were not being deducted from his pay at any time between 1980 and 2003.

[48]        The Teachers’ Board admits that the Applicant was an inactive member of the Plan with respect to his short period of pre-1980 service and also acknowledges that their records did not disclose a current address until the Applicant resurfaced in 2003 as a certified teacher contributing to the Plan.  The Applicant says that the Board had an obligation to contact him, even if it meant placing advertisements in the media, and points to this “failure” by the Board as a breach of the Plan and the Act which justifies the Tribunal granting his claims.  Again, we cannot agree with this position.

[49]        The Board’s responsibility as Plan administrator is to administer the Plan in accordance with its terms and the Act as a fiduciary pursuant to the statutory standard of care set out in section 22 of the Act.  This means that the Board’s administration must meet the standard of reasonable prudence.  Based on subsection 22(2), the standard applicable to the Board is higher than ordinary prudence – it is subjective in terms of the Board’s use of “all relevant knowledge and skill that the administrator possesses or, by reason of the administrator’s profession, business or calling, ought to possess.”

[50]        This standard, however, does not impose strict liability.  The applicable standard of care is reasonableness, not perfection.

[51]        In the circumstances of this case, did the Teachers’ Board act reasonably according to the applicable standard of care with respect to its administration of the Plan terms under the Act relative to the Applicant?  We find that it did.  In particular, was the Board’s failure to contact the Applicant as an inactive member with 16.5 days of service between 1980 and 2003 unreasonable in the circumstances?  We find that in the circumstances it was not.  Once again, the standard is reasonableness and in a pension plan with over 60,000 members the Tribunal recognizes that it is not possible to administer with 100% accuracy.  What is required is prudence – not perfection.

[52]        Again, section 87 of the Act requires there to be reasonable and probable grounds that the Plan is not being administered in accordance with the Act or the Plan text, or that the Board is contravening the Act or the regulations and it is up to the Applicant to prove any such allegations on a balance of probabilities.  Based on the evidence the Tribunal finds there are no reasonable and probable grounds indicating that the Board breached the Act or the Plan by failing to inform the Applicant about the LOP requirements at the relevant times or, in the circumstances, had any obligation to do so.

[53]        The evidence shows that the Board responsively worked with the Applicant for nearly 15 years to address the Applicant’s request to be credited for the Alleged Service. The documents contained in the ABD show this and demonstrate that the Board was administering the Plan in accordance with the Plan terms and was acting within the standard of care owed to the Applicant.  The Added Party and the Respondent submit that any allegation of unfair treatment is misdirected at the Board. They suggest that the Applicant’s recourse may be to seek redress against the school boards who employed him.

[54]        The issues for determination are those set out above in Part III of this decision.  In summary, the issues ask whether the Act or the Plan require the Teachers’ Board to credit the Applicant with service under the Plan despite the absence of an LOP. The Added Party and the Respondent submit that the Applicant’s submissions alleging inadequate information are without merit and, in any event, do not directly address the Part III issues.  As a result, the Added Party and Respondent submit that the Tribunal does not have authority to adjudicate such allegations.

[55]        In the circumstances of this case, the Tribunal is in agreement.  The Tribunal has specific, limited jurisdiction conferred upon it by statute. In particular, subsection 89(9) of the Act states:

[56]        Under subsection 89(9) of the Act the Tribunal’s jurisdiction is limited to directing the Respondent to make the intended decision set out in the NOID or directing the Respondent to refrain from making the intended decision and taking such actions as the Tribunal considers that the CEO ought to take.

[57]        While the Tribunal may, under subsection 89(9) of the Act, direct the Respondent to substitute a decision of the Tribunal for that of the Respondent, the Tribunal does not have the power to award any remedy not provided for under the Act.^[10]

[58]        The Tribunal has not been directed to any provision of the Act empowering the Tribunal to direct that the Applicant be credited with service despite his not meeting the requirements set out under the Plan terms, regardless of whether or not the Applicant was given inadequate information. Even if the evidence were to show that the Applicant had been materially misled, his recourse would be a civil claim outside of the jurisdiction of the Tribunal.^[11]  As the Tribunal stated (in obiter) in Paul^[12] :

[59]        The Applicant has relied upon the decision of the Court of Appeal for Ontario in Hall v. Ontario Teachers’ Pension Plan Board, issued in April 2000 (“Hall”).^[13]  The Tribunal finds that Hall has no bearing on the issues in this case.  In Hall the Court of Appeal held that qualifying part-time service earned prior to September 1984 is eligible for credit under TSA 80. The evidence shows that qualifying part-time service earned post-September 1984 has always been eligible pursuant to the provisions of TSA 83, regardless of the Hall decision.

[60]        The present case addresses whether the Alleged Service was qualified service; the fact that it was part-time service is immaterial, and the Applicant has never been denied credit on the basis that it was part-time service. Thus, the Hall decision has no bearing.

[61]        As noted above, the Applicant received a Certificate of Qualification and Registration from the Ontario College of Teachers on July 16, 2003, and he became an active member of the Plan in September 2003, thus he was not an active Plan member when the Hall decision was released in 2000. Since 2006, the Applicant has been seeking credit for all of the Alleged Service, without any distinction between pre-1984 and post-1984 service.

[62]        Based upon the above, the Applicant’s claims are dismissed and the Tribunal orders the Respondent to carry out the NOID.