The appeal board established under the Financial Services Board Act overturned a decision made under section 14 of the Pension Fund Act by the Registrar of Pension Funds to permit a transfer of business by a pension fund. The court held that the registrar does not have legal standing to take the appeal board decision on review to the high court.
The registrar has the power and function of determining the amalgamation of pension funds and the transfer of business from a pension fund to another person. Anyone aggrieved by a decision made by the registrar in that connection is entitled to lodge an appeal to the appeal board under section 26(1) of the FSB Act. The appeal board can confirm, set aside or vary the registrar’s decision or remit the matter for reconsideration. The appeal board decides whether the registrar’s decision is right or wrong and its decision either affirms or replaces that of the registrar.
Where the registrar’s decision is challenged on appeal, the registrar is not a party to the proceedings in the litigious sense. The registrar can take part in the proceedings and make submissions in support of the decision. Such a status is inconsistent with the role of the registrar as an impartial regulator acting in the interests of the industry generally and, in an appeal, acting as a neutral decisionmaker. When an application is made to the registrar, the registrar must adopt an impartial stance, otherwise that alone would be a ground of review. As between the appeal board and the registrar, the appeal board’s decision must be taken as correct. If the appeal board substitutes its decision for that of the registrar then effectively that becomes the registrar’s decision which has to be given effect to. The registrar cannot challenge an appeal board decision which is accepted by the funds that are parties to the transfer.
This is an extraordinary decision because it compels the registrar to follow the appeal board’s decision even if that decision is patently wrong. An appeal board decision is not however necessarily binding in future cases.