) ) Oscar Monteiro ) Appellant, self-represented ) ) Applicant (Appellant) ) ) – v. –, 2023 ONSC 922

CITATION : Monteiro v. CEO Financial Services Regulatory Authority, 2023 ONSC 922 DIVISIONAL COURT FILE NO.: 036/22 DATE: 2023-02-08 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Matheson, Kurz JJ.

BETWEEN: ) ) Oscar Monteiro ) Appellant, self-represented ) ) Applicant (Appellant) ) ) – and – ) ) Chief Executive Officer of the Financial Services Regulatory Authority, and Ontario Teachers’ Pension Plan Board ) ) ) David Stamp and Graeme Rotrand , for the Respondent Ontario Teachers’ Pension Plan Board ) Respondents (Respondents in Appeal) ))) Markus Kremer and Alex Kim for the Respondent CEO of the Financial Service Regulatory Authority – and – ) ) Financial Services Tribunal Respondents in Appeal ) ) ) )) HEARD at Toronto: January 23, 2023 (by videoconference) Kurz J.

Introduction [ 1 ] Oscar Monteiro (the “Appellant”) taught part-time night school credit courses for the Toronto Board of Education (“TBE”) [1] 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”. [ 2 ] The Appellant did not receive any pension credits (“Credits”) from the Ontario Teacher’s Pension Plan (the “Plan”) for any of the TBE S ervices. 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. [ 3 ] 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 t he 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. [ 4 ] 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.

Arguments in Brief [ 5 ] As set out below, the relevant statutory authorities required a person wishing to accrue Credits under the Plan to be “qualified as a teacher”.

To be so qualified, the person was required to have been granted one of the following documents by the Minister of Education: • a Certificate of Qualification, qualifying a person to teach in Ontario; • a Letter of Standing, allowing a teacher qualified in another jurisdiction to teach in Ontario; or • a Letter of Permission (“LOP”), granting an unqualified person the right to teach in Ontario for a limited period of time when no qualified teacher was available. [ 6 ] There is no dispute that: 1) the Appellant performed the Services and 2) he did not hold either a Certificate of Qualification or a Letter of Standing while doing so.

Thus, under the terms of the Plan, he required an LOP for each year he performed the Services to be eligible for Credits for those years. The Tribunal found that the Appellant failed to meet his onus of proof that he had been granted a LOP for any year that he performed the TBE Services. While the issue was not formally before the Tribunal, it also found that he was not eligible for Credits for the Other Services, other than 16.5 days of Credits earned in the 1978-79 school year. [ 7 ] The Appellant argues that the Tribunal erred in four ways.

First, it found that he required an LOP for each year in which he provided the Services. Second, it erred in finding that he bore the onus of proving that he possessed an LOP for each year that he claims Credits for the Services. Third, it erred in finding that he was not entitled to Credits for any of the years he provided the Services because he had not been granted LOPs for those years.

Finally, it erred in failing to find that the OTPPB breached its duties to him in failing to inform him of his pension status while he performed the Services. [ 8 ] The OTPPB argues that the Tribunal correctly found that an LOP was required for each year in which the Appellant claims Credits for non-qualified teaching. The Tribunal also correctly imposed on the Appellant the onus of proving the existence of LOPs for any year in which he performed the Services and claims Credits. The Tribunal did not err in finding that the Appellant failed to possess any such LOP for the years he provided the Services.

Further, the Tribunal did not err in finding that the OTPPB had breached no duties to the Appellant to inform him regarding his pension status. Much of the blame for the Appellant’s lack of knowledge regarding the state of his Credits rests with the Appellant himself. Thus, the Tribunal properly dismissed his application. [ 9 ] For the reasons set out below, I agree that the Tribunal did not err in denying the Appellant’s application and dismiss this appeal. Background The Parties [ 10 ] The Appellant is an educator.

Between 1970 and 2003, he worked on a part-time basis for a number of Ontario school boards, teaching various night school and weekend credit courses. For some years, he worked for more than one school board at a time. He did not become qualified as a teacher until 2003. Commencing in September 2003, the Appellant accrued Credits for his teaching services. There is no issue as to the Appellant’s pension entitlements for the time after he gained his teaching qualifications.

[ 11 ] The only Credits that the Appellant accrued prior to 2003 were the 16.5 days he earned during the 1978-79 school year, working for the Metropolitan Separate School Board, as it then was. It is unclear from the record how he came to be granted those credits. The Appellant’s membership in the Plan became inactive as he changed school board employers. The Plan’s records showed no updated current address. The Tribunal found that the Appellant “was not proactive in contacting the [OTPPB] in this regard”. [ 12 ] 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. [ 13 ] 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 [2] .

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. [ 14 ] 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 [3] (“ 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. Letters of Permission [ 15 ] The term, “teacher” was defined under the relevant version of the Education Act [4] as a member of the Ontario College of Teachers. To become a member, the College must have certified the person as qualified to teach in Ontario's publicly funded schools. [ 16 ] Under s. 8(1)(

j) of the Education Act , the Minister of Education was entitled to grant a LOP to a school board, authorizing it “to employ as a teacher a person not qualified as such if the Minister is satisfied that no teacher is available, but a letter of permission shall be effective only for the period, not exceeding one year, that the Ministry may specify therein”. [ 17 ] Regulations under the Education Act [5] also allowed school boards to hire unqualified persons to teach for up to ten days in an emergency.

Those provisions are not relevant to this court’s consideration. [ 18 ] The requirements for granting an LOP were very strict. As set out in O. Reg. 269 under the Education Act , at para. 49: a. a school board was required to provide the Ministry of Education with proof that it has “advertised at least three times, stating the salary, in a daily newspaper having provincial circulation in Ontario a position for which a teacher is required under the regulations”. b.

When the job position was for a term commencing on the first day of school in September and continuing until at least December 31, at least one such advertisement must have appeared after August 1 of that year. c. If the position was for the second school term, commencing January 1, it must have appeared at least once after October 31 of the previous year. d. Further, seven days must have passed since the date of the final advertisement, with no qualified teacher having applied for the position or no teacher who has applied for the position having accepted it. e.

That LOP was valid for a period of no more than one school year. [ 19 ] 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.” [6] [ 20 ] Mr. McAllister also testified t hat 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 [ 21 ] Under s. 3 of the Teacher’s Pension Act [7] , (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 .) [8] .

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) . [ 22 ] 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. [ 23 ] 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. [9] 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” [10] .

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 . [11] Statutory Requirements for Plan Credits [ 24 ] From 1980 – August 1, 1984, the terms of the Plan were contained in the Teacher’s Superannuation Act , 1980, (the “ 1980 TSA ”). [12] 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”. [ 25 ] 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”. [ 26 ] 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. [ 27 ] 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. [13] [ 28 ] 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’s Attempts to Retroactively Obtain Credits [ 29 ] Other than the 16.5 days of credit earned in 1978-79, neither the Appellant nor any of the school boards for which he worked, including the TBE, made any pension contributions to the Plan on his behalf. Nor did he make any pension contributions himself. The Appellant testified before the Tribunal that between 1980 and 2003, he thought that he was a member of the Plan or in the alternative, he was confused about his membership.

He offered no evidence to the Tribunal that he sought clarification of his pension status from the TBE or the OTPPB during that time. Further, he failed to update the Plan about his current address after the 1978-79 school year.

[ 30 ] 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. [ 31 ] 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. [ 32 ] 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. [ 33 ] 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. [ 34 ] 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 O ther Services. The Tribunal’s Decision [ 35 ] 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. [ 36 ] While the “Other Services” were not the subject of the CEO’s consideration and not cited in the NOID itself, the parties before the Tribunal drew no distinction between the two forms of service. Thus, the Tribunal considered the issue of Credits for the Other Services as well. It then offered the same answer regarding “Other Services” as it did for the TBE Services.

Right of Appeal and Standard of Review [ 37 ] The Appellant’s right to appeal the Tribunal’s order to this Court is set out in s. 9(1) of the PBA. The standard of review on an appeal of a decision of the Tribunal is the appellate standard. That means that the standard of correctness applies to questions of law including statutory

interpretation and the scope of the decision maker’s authority. For questions of fact and mixed fact and law where the legal principle is not readily extractable, the standard is one of palpable and overriding error: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65 , [2019] S.C.J. No. 65 at para. 37 , citing Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at para. 8 . Issues on Appeal [ 38 ] This appeal raises the four following issues: 1. Did the Tribunal err in finding that the Appellant required an LOP for each year in which he claimed Credits for the Services?

2. Did the Tribunal err in finding that the Appellant bore the legal onus of proving that he had been granted an LOP for each year in which he claimed Credits for the Services? 3. Did the Tribunal err in finding that the Minister of Education had granted no LOPs to the Appellant for the years in which he claimed Credits for the Other Services? 4. Did the Tribunal err in finding that the OTPPB did not breach its duties to him in failing to inform him of his pension status while he performed the 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? [ 39 ] 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

(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. [ 40 ] 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. [ 41 ] 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. [ 42 ] 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 [14] 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. [ 43 ] 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.

Issue No. 2: Did the Tribunal err in law in finding that the Appellant bore the legal onus of proving that he had been granted an LOP for each year in which he claimed Credits for the Services? [ 44 ] The Appellant claims that the Tribunal improperly shifted the onus of proof of his entitlement to Credits onto him, rather than place the onus onto the CEO to disprove his entitlement. He relies on the fact that boards of education such as the TBE, were required to apply to the Minister of Education for LOPs for non-qualified teachers, not the teachers themselves.

Thus, the Appellant contends that he should not have to prove that he was granted an LOP for each year that he offered unqualified teaching services. Rather, the OTPPB should have to prove the negative, that he did not receive the LOPs. [ 45 ] That argument does not align with settled law on the point. As Macaulay, Sprague and Sossin write in Practice and Procedure Before Administrative Tribunals [15] , “[t]he general rule is that whoever asserts a proposition bears the onus of proving it”.

An exception may occur when “the other side … actively has done something to block the ability of the first person to satisfy the legal

burden”. [16] There was no evidence before the Tribunal that TBE or any other publicly funded school board for which the Appellant provided unqualified teaching services did anything of the sort. In fact, the record demonstrates that the TDSB made three different sets of searches for the records that the Appellant sought. The TDSB described two such searches as “thorough” and another as “exhaustive”. [ 46 ] This court affirmed Hunte v.

Ontario (Superintendent of Financial Services) [17] , a decision of the Tribunal that the person claiming entitlement to pension benefits has the burden of proving that entitlement on a balance of probabilities. The Tribunal wrote: 60 We do not accept these submissions. The fundamental burden of proof that an applicant has an entitlement from a pension plan is on that applicant. That burden does not shift.

It is possible, of course, that if the evidence of the party bearing the ultimate burden of proof raises a prima facie case that must be answered, what is usually called "the evidentiary burden" may shift to another party in the course of a hearing. But in our view, the Applicant has failed to adduce evidence sufficiently persuasive to shift the evidentiary burden, particularly on the key issue of whether he took a Cash Refund Benefit in 1982 when he left the Plan.

Accordingly, we draw no inference from Canada Life's failure to produce complete records from the 1970s and 1980s. [ 47 ] Based on those authorities, I find that the Tribunal correctly determined that the onus rested on the Appellant to prove his pension entitlement. That onus did not shift to the CEO.

Issue No 3: Did the Tribunal err in finding that the Minister of Education had granted no LOPs to the Appellant for the years in which he claimed Credits for the Services? [ 48 ] The Tribunal made a finding of fact that the Appellant had failed to prove that an LOP had been granted by the Minister of Education for any period during which he performed the Services. That finding is subject to the palpable and overriding standard of review. [ 49 ] The Tribunal carefully considered all of the evidence before it. That evidence included the following: 1. The uncontradicted evidence of Mr.

McAllister was that when LOPs were issued, a copy ordinarily went to both the subject board of education and the employee. Thus, the Appellant would have received a copy of any LOP that was granted in regard to any unqualified teaching he performed for the TBE or any other publicly financed board of education. 2. Nonetheless, the Appellant was unable to offer even one LOP to the Tribunal, let alone ten LOPs, for the ten years that he provided the TBE Services. Nor did he provide any LOPs for any years of the Other Services.

He admitted in his testimony before the Tribunal that he never received an LOP from the Ministry of Education. 3. The Appellant further testified that, despite his efforts, no one from the TDSB was able to confirm that they had found an LOP in regard to his TBE Services. 4. That evidence was confirmed by correspondence demonstrating that the TDSB made three comprehensive attempts to search its records to find any LOPs granted to the Appellant during the years that he performed the TBE Services. 5. Mr.

McAllister also testified to a laxity in controls by Ontario school boards regarding the hiring of non-qualified teachers in the 1980’s. This may explain why the Appellant was hired to teach part-time credit courses without having been granted an LOP. 6. Mr. McAllister further testified that if pension contributions were made in regard to a member whose qualifications as a teacher could not be established to the OTPPB’s satisfaction, the contributions would have been refunded and Credits reversed. 7.

There is no evidence that the TBE ever enrolled the Appellant in the Plan or, as set out above, made contributions on his behalf to the Plan. 8.

For his part, the Appellant admitted that he made no pension contributions to the Plan during the years that he performed the Services. [ 50 ] The Appellant has pointed to a November 8, 2021 letter from the TDSB, which stated that it has “ reason to believe the TBE would have applied for and received the Letters of Permission to allow [the Appellant] to teach night school at that time." The letter continues: "[w]e 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 stating the TDSB’s willingness to pay its pension contributions "… if the OTPPB decides to add this service to Mr.

Monteiro's record”. [ 51 ] The Tribunal considered this letter but found that it was “ perhaps well meaning … speculation … unsupported by the evidence.” The Tribunal properly pointed out that “[t]he 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.” The Tribunal added that “[t]he inability of the TDSB or the [Appellant] 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. [ 52 ] Those findings, firmly rooted in the record before the Tribunal, are entitled to appellate deference. I find no palpable or overriding error in them.

Issue No. 4: Did the Tribunal err in finding that the OTPPB did not breach its duties to him in failing to inform him of his pension status while he performed the Services? [ 53 ] The Appellant argues that he should be entitled to the Credits, irrespective of the absence of LOPs, because the OTPPB failed in its duties to him.

It did so by failing to proactively contact him to clarify his Plan membership and by failing to send him plan information after the 1978-79 school year (when he joined the Plan and accrued 16.5 days of Credits). [ 54 ] The Appellant argues that the OTPPB had an obligation to track him down to inform him of his pension entitlements, even if he failed to update his contact information after 1979. It should have even placed ads in newspapers, looking for him. [ 55 ] The Tribunal rejected these arguments for two reasons.

First it found that the Appellant must bear “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.” The Tribunal made a finding of fact that he “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.” The Tribunal also pointed to the fact that the Plan has 60,000 members in order to consider the practicality of the Appellant’s demands upon its board. [ 56 ] Based on those findings, the Tribunal found that the OTPPB did not breach any of its duties to the Appellant under the terms of the Plan and the PBA .

As stated above, it found that the standard imposed on the OTPPB was reasonableness, not perfection. It found that the OTPBB’s conduct towards the Appellant was reasonable in considering the extremely limited days of Credit the Appellant had accumulated between 1980 and 2003, the size of the pension plan, the Appellant’s own failure to stay in touch with the PTPPB or inform himself of his pension status, and the statutory standards imposed on the PTPPB. [ 57 ] Those are findings of mixed fact and law, which are entitled to appellate deference, absent a palpable and overriding error or extricable error of law.

Neither has been demonstrated in this case. Conclusion [ 58 ] For the reasons set out above, I dismiss this appeal. Costs [ 59 ] No party requests costs, thus none are granted. ____________________________ Kurz J. I agree

___________________________ Backhouse J. I agree ___________________________ Matheson J. Date of Release: February 8, 2023 CITATION : Monteiro v. CEO Financial Services Regulatory Authority, 2023 ONSC 922 DIVISIONAL COURT FILE NO.: 036/22 DATE: 2023-02-08 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Matheson, Kurz JJ. BETWEEN: Oscar Monteiro Applicant (Appellant) -and- Chief Executive Officer of the Financial Services Regulatory Authority, and Ontario Teachers’ Pension Plan Board Respondents (Respondents in Appeal) -and- Financial Services Tribunal Respondents in Appeal REASONS FOR JUDGMENT

Kurz J. Date of Release: February 8, 2023 [14] [1999] O.J. No. 2105 (Div. Ct.) , aff'd [2000] O.J. No. 1507 (C.A.) .