Marr v. Financial Services Commission of Ontario
CITATION: Marr v. Financial Services Commission of Ontario, 2012 ONSC 1471
DIVISIONAL COURT FILE NO.: 67/11
DATE: 20120302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HENNESSY AND HARVISON YOUNG JJ.
BETWEEN:
LORNE STUART MARR
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondent
COUNSEL:
Joseph A. Neuberger and Allan Manson, for the Applicant
Larissa Easson, for the Respondent
HEARD at Toronto: March 2, 2012
REASONS FOR JUDGMENT
HARVISON YOUNG J. (orally)
[1] The applicant seeks judicial review of a decision of the Superintendent of the Financial Services Commission of Ontario (“FSCO”) refusing to stay the discipline proceedings against him for delay. The matter is presently scheduled to be heard on the merits on May 2, 2012.
[2] The applicant raises a number of grounds in support of his position that this Court should allow the application and grant a stay.
[3] The respondent asks this Court to dismiss the application on the basis that it is premature. Judicial review is a discretionary remedy and judicial review of interim or preliminary decisions of administrative tribunals in the absence of exceptional circumstances is generally refused (see Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.) para. 13).
[4] The applicant submits that the process in this case is fundamentally flawed in a number of respects which irretrievably compromised the fairness of the entire process, thus, in effect justifying an exception from the general rule.
[5] The applicant raises three grounds: 1) reasonable apprehension of bias; 2) that the decision with respect to delay was unreasonable; and 3) that there was a denial of procedural fairness in the failure to provide the applicant with the opportunity to make submissions before the Superintendent decided not to accept the recommendation of the Advisory Board.
[6] We do not agree that these grounds, either individually or cumulatively, constitute exceptional circumstances justifying this Court’s intervention at this interlocutory stage.
[7] The applicant argued that the Superintendent must have given preference to his concerns with respect to the allocation of investigative resources in his decision on delay thus giving rise to a reasonable apprehension of bias.
[8] We do not agree that a reasonable person properly informed would conclude that there was a reasonable apprehension of bias on the part of the Superintendent, particularly in light of the description in the material before us describing the Superintendent’s role.
[9] With respect to the merits of the decision on delay, this is a matter properly left to the hearing on the merits and to any subsequent appeal that the applicant may bring.
[10] The applicant also argues that he was denied procedural fairness in that he was not provided with an opportunity to make submissions before the Superintendent made his decision.
[11] The Insurance Act, R.S.O. 1990, c. I. 8 at s.393(10.1) authorizes the Commission to make rules governing the practice and procedure before the Advisory Board and pursuant to those rules, the Advisory Board is to provide a report to be delivered to the Superintendent. The Superintendent then “shall consider the report and issue a written order with written reasons” (s. 32 of the Rules). Pursuant to s.393(10.2), an applicant may appeal the Superintendent’s decision respecting a licence to the Financial Services Tribunal. The applicant may raise the issues relating to delay and the reasonableness of the decision in the course of the hearing on the merits and any appeal thereafter. Unlike the situation in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, this statutory framework provides the applicant with the full right of appeal with respect to the Superintendent’s decision on the merits.
[12] In our view, this is similar to the situation in Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (O.C.A.), where the Court of Appeal observed that the issue of prejudice arising from delay is best assessed in the context of the hearing on the merits as it unfolds (at para. 8).
[13] We do not accept that these decisions are tainted by a fatal jurisdictional defect justifying judicial intervention at this time.
[14] The application is therefore dismissed.
SWINTON J.
[15] I have endorsed the Application Record, “For oral reasons delivered in Court today, application for judicial review is dismissed. Costs to the respondent fixed at $5,000.00 all inclusive.”
HARVISON YOUNG J.
SWINTON J.
HENNESSY J.
Date of Reasons for Judgment: March 2, 2012
Date of Release: March 22, 2012
CITATION: Marr v. Financial Services Commission of Ontario, 2012 ONSC 1471
DIVISIONAL COURT FILE NO.: 67/11
DATE: 20120302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HENNESSY AND HARVISON YOUNG JJ.
BETWEEN:
LORNE STUART MARR
Applicant
– and –
FINANCIAL SERVICES COMMISSION OF ONTARIO
Respondent
REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: March 2, 2012
Date of Release: March 22, 2012