AND: BETWEEN: FTNANCTAL SERVICES TRIBUNAL SUPERINTENDENT OF PENSLONS RESPONDENT INTERIM ORDER

Transcription

1 05/0.9/ FAX CLEVELAND &.1 FTNANCTAL SERVICES TRIBUNAL I the matter of Fiacial Istitutios Act R.S.B.C. 1996, C. 352 BETWEEN: CiKIMM7S FINE FOOLIS L'I'l.1. AND: SUPERINTENDENT OF PENSLONS RESPONDENT INTERIM ORDER Chair: Dale R. Doa T,T,R, Member, Fiacial Scrvices Tribual Cousel for the sup wi led e^ ol'pesios, Sadra A. Wilkiso Direc~or of Fiace ad Admiistratio of Grimm's Fie Foods Ltd., Sady Liu ltcrim Order Dare: May 8,2006

2 CLEVELAND B Prior to thc Fiacial Sefviccs 'l'ribual ("FST") cosidcrig the merit9 of the appeal (the "Appcal") lauched by virtuc of Notice of Appeal filcd by the Appella~, Grimi's Fie Foods Ltd, i this matter, two issucs arose requirhg it~rim orders of the FST. As thc member charged with resposibility for thc Appeal, T have bee asked to rule o each of thcsc iterim matters. The firsr relates to the completeess of thc Record for this Appeal. The secod i\rolvcs thc represetatio of the Appellat, Grim's Fie Foods Ltd. or the lack of represetatio thereof i his mattcr. A allegatio that the Appellat is reprttsetcd by Heath Beefits Cosultig Ic. ad/or its maager, Pcsios Divisio, Mr. Grcg R. llurst i a macr that offeds the Legul Professio Acr as well as the TAW Society of British Columbia Rules IIW emerged ad requires cosideratio at his timc. FACTS IN MLATION TO THE INTERTM MATTERS A. Complctcess of the Record This Appeal was lauched by way of Norict of Appeal dated March 24,2006 ad filed with thc FST o March 28, Thc amed Kespoder is the Superitedet or Pesios ad the Appeal relates to a decisio ot Ibr: AcLig Superilltedet of Pesios dated February 27, 2006 whlch required the Appellat, Grim's Fie Foods Lld., to aed the defiitio of spouse cotaied i he pcsio pla for the erployecs of that compay lo comply with the Peuio Beefits Stadards Act withi 30 days. A package 01' materials represetig documetatio preseled to thc Actig Superitedet of Pesios has bee prepared reprcsctig the "Record" with respect to his Appcal. The Appellat takes issw with the package of doc~ucm md alleges that the Record is icomplete. Lcghy corrcspo&i~ce from Heath Beefits Cosultig Ic. md i particular Mr. Hurst of that compay, allegcd that thc Record required the iclusio of: (a) the Actig Superitedet of Pesio's ha1 decisio as set out i his February 27,2006 letter to the Appellal (ad respectig the same 1 advisc that the said fial decisio was icludcd i the package of materials provided tu me as thc member resposible for the Appeal), (b) subsratially all of thc documets held by cithcr the former Peiisio Stadards Brach or the curret Pesios Deparlmet of FlCOM that relate to the Appellat compay, ad (c) a lcgal opiio of oe Mr. Arold dated April 3,2002. As I havc otcd above, the fial decisio of the Actig Superitcdct of Pesios is icluded i the Record for cosidcmlio i this Appeal. The other two series of itcms havc ot bee icluded i the Record prcseted to me at this timc. 'l'hc correspodece from Mr. Hurst appears to mistakely cofuse the formal requiremets of a Record i u FST appcal as sct out i sectio 3.8 of thc "Fiacial Services Tribual Directives ad Practice ad Guidelies" (the

3 05/C9/ :56 FAX CLEVELAND & To clarify ad to csure that this Appeal progresses i ihc macr required by the Act, I poil out that sectio 242.2(7) of the Act requires the origial decisio-maker (i this case the Superitedet of Pesios) to forward to the Chair of the FST a copy of the Record. Scctio 242.2(6) ofthe Act dcfics thc Rccord as cosistig of the followig: The Record of all evidece, if ay, bcforc thc origial decisio-maker; Copies of origials of documetary evidece before lhc origial decisio-maker; Other thigs received as cvidccc by the origial decisio-maker; ad The decisio ad writte reasos Tor it, Xay, givc by thc origial dccisio-maker. This deliilio ul' hc Rccord would ot require the iclusio of such thrgs as documets, iformatio circulars, research materials or other materials held by the I'orler Pesio Stadards Brach or the curret Pesios Departmet of FICOM, the April 3,2002 letter of Mr. Arold or ay other materials whatsoever eve if the same relate to the Appellaut compaly, if those documets ad matcrials wcre ot preseted before the Actig Superitedet of Pesios at thc hearig before him. If, however, ay of hose documets or matcrials w c so ~ preseted, the origial decisio-maker must icludc the same i the Record provided to the FST i this Appeal. From thc correspodece that I have reviewed icludig the FST's letter to the Supcritedet of Pesios dated Mach 29,2006 requestig thc submissio of thc Kecord docietatio od Ms. Wilkiso's letter of April 3,2006 cofirmig that the Record requiremets of sectio 242.2(5) of thc Act havc bee met, I have cocluded that these documets ad materials referred lo above were ot so preseted to the Actig Superitedet of Pesios ad that the Record as preseted tu me is complete. IT, however, my readig or thc corrcspodccc ad Appcal documetatio thus far is icorrect i that regard, I order that ay of the said documets or materials that were preseted before the Actig Superitedet of Pesios at the origial hearig of this mattcr bc assembled ad submilled at!his timc via thc FST ofiicc. If I am correct i my uderstadig - amely, that oc of the said documets or material brought ito questio by the Appellat were preseted to the Deputy Superi~edet 01 Pesios at the origial hearig of this matter - the the Appellat may cosider a applicatio for the submissio of ew evidece pursuat to sectio 3.13 of thc Guidclics ad scctio 242.2(8)(b) of the Acl. A careful review of rhe criteria for the submissio of ew evidece should be made by the Appellat prior LO my applicatio as cw cvidccc must ot oly be substaitial m~d material to the decisio, it must also have ot bee i existece at the time he origial decisio-maker heard the matter or did exist but was ot discovered ad could ot through the exercise of reasoable diligece havc bcc discovered at that time. B. Allc~atio Res~cctim the Uauthorized Practice of Iaw By way of FST letter dated April 20, 2006, thc Deputy Registrar of the FST advised the parries to this Appcal that i the vicw of the fat that Grim's Fie Foods T,td. was self represeted at that time I would ot be addressig the allcgados regardig rhc uauthorized practice of law.

4 r'. CLEVELAND & Ufortuately, the circumstaces have chaged sigificatly ad these allegatios must ow be addressed. Heath Beefits Cosultig Ic., ad i particular Mr. Greg R. Hurst of that compay, appears to have had a legthy history "assistig" Grimm's Fie 1:oods Ltd. with respect to pesio ad related matters. The Record icludes correspodece goig back to April of 2002 a rcfhg lo earlier correspodccc of September 2001 relatig 10 pesio pla amedmets ad iterpreh~ios ivolvig the Iaesio Deelits Sradards Act ad its regulatio. Further, the correspodece relatcd to this Appeal ad the Record icludes legthy letters from Mr. Hurst of Heath Beefits Cosultig lc. which delve ito umcrous iterpretatios uf the legislatio surroudig this Appcal as well as positios which may reasoably be itcrprctcd as assertios of legal positios o bchalf of the Appellat. Legal cousel for the Superitedet of Pcsios addressed this matter head o i a letter dated April 7, 2006 addressed to the FST wherc shc reviewed the defiitio of "Practicc of Law" fbud i swlio 1 of the Legal ProBssio Act ad thc prohibitio agaisl persos other tha lawyers egagig i the practice of law foud i sectio 15 of the Legal Prc$kssio Act. Cousel reviewed Kulc 2-10 of the Law Society Rules which prohibits a lawyer from kowigly faciliratig by ay meas the practice of law by a perso who is ot a practicig lawyer or otherwise permitted to practice law uder sectios of the Legal Professio Acr, ad thcrcaftcr requested that this matter be dealt with by the FST. She idicatcd that a complait had bee filed with the Law Society of British Columbia hut that scparalt: cosideratio of this issue would be requircd by the FST. Grimm's Fie Foods Ltd. s~~bmittcd a ledw &~ed April 13, 2006 uder the had of its Director oltiace ad Admiistratio, Sady Liu, advisig that "we havc agreed with Heath to a shift i roles." Ms. Liu stated that she would be makig all of the Appellat's submissios i respect of the Appeal as a officer of the Appellat. Shc wet o to say: "...however wc will bc cotiuig to use the scrviccs of Heath ad Mr. Hurst to assist us i this matter." By way of letter dated April 24, 3,006, Ms. Liu, agai 0x1 bchals ur h e Appellal, wrote to the FST directig correspodccc of the FST ad he Respodet to be adtlrcssed to her ad delivered: "...c/o Ceg Hurst, Heath Beefits Cosultig Tc., West Broadway Vacouver, BC V6J la6...". Legal couisel for the Supcritcdct 01' Pesios objected by way of letter dated April 24,2006 -ad, i my view correctly submitted that Mr. Hurst ad his compay cotiued to act o bchalf of he Appellat i this matter. Although thc Legul Projissio Acl ad the Law Society Rules are clcrv i thcir laguage, wusel also referred me to the British Columbia Court of Appeal decisio Luw Sociefy of British Columbia v. Lawtie [1991] B.C.J. No. 2653, a case where our Court of Appeal cosidered the whole issue surroudig the purported practicc of law by a olawyer. Although that case is distiguishable i terms of the ature of the iliactio ivolved, the priciples set foh i that case arc, i my view, curret ad good law i the Provicc of British Columbia wilh respect to this issue. Accordigly, 1 agcc wih the s~~bmissivs of legal cousel for thc Supcritcdct or Pesios i her cotetio that Mr. Hurst ad his compay cotiue to represet Grimm's Fie Foods Ltd. i what appears to be a legal advisory rolc. 1 do ot believe that Mr. Liu's subsequet dated latter, received by the FST o April 27, 2006, which rescids her submissio regardig the delivery of documetatio to Mr. I-lurst ad advises

5 P CLEVELAND & hit Grimm's will accept servicc of documets i this Appeal, alleviates what iu thc isscapable coclusio th~t regardless of whcre ad by whom documets are filed, Grimm's is ot completig the legal aalysis o its ow behalf or is it obtaiig qualified, professioal legal advice i this matter. Rather, the "scrvices" of Mr. Hurst ad his compay may be expected to be utilized ow ad i the future i relatio to this matter uless the same are prohibited by the Law Society of British Columbia pursuat to the complait procedure which legal couiisel for the Supcritcdct of P~sios has implemeted. For the purposes of this Appeal, I order that either Grcg R. Hurst or Heath Beefits Cosultig Ic. provide services, advice or rcprcwtatio to the Appellat, Grimm's Fie Foods Ltd., i a iaer that cotravees sectio 15 of thc Legal Prufesio Act ad Rule 2-10 of the British Columbia Law Society Rules. Give the importace of the matter uder thc Appeal, it is my desire that the Appellat be represeted by qualified legal cousel authorized to pracrice law i the Provicc of British Columbia. Ilowever, it is recogized that persos i British Columbia may represet themselves with respect to matters brought bcforc the FST. Tri ihe same vei, a authorized director or officer of a compay may represet the compay i my matter brought before the FS'I'. CONCLUSION Wih respect to the Record, i order to esure that the coclusios that I have draw fiom my view of the documctatiu ad correspodece submitted i this Appeal, esurig that the Recurd as it curretly stads is complete ad i accordace with the Ad ad the Guidelies, I ask the Superitedet of Pcsios through its legal cousel to cofirm by wily of furthcr Iclter addressed to the FST that those materials ad documets referred to above (those that are ~equested to be addcd to the Record by the Appellat) do or represet docurcts or materials prescted to the Actig Superitedet of Pesios whe this rattcr was heard. From the date that legal cousel for the Superitedet of Pesios submits bat letter to the PST assumig it is able to cofirm this fact, the Appcllal, Gsimm's Fie Foods Ltd., shall have 30 days to file its argumet submissios ad bvvk of authorities if ay i this Appeal. Grimi's Fic Foods Ltd. shall have leave to make a furthcr iterim applicatio for the submissio of ew evidece should it feel that the provisios of scctio 242(8)(b) of the Act allows it ad the ew evidece is material to this Appeal. With respect to the allegatio of the uauthorized practice ol'law ivolvig Mr. liurst ad Heath Beefits Cosultig Ltd., 1 have dealt with the same by way of order above. Respectfully submitted this 8th day of May, 2006 Dale R. Doa LLB Member Fiacial Scrvices Tribual