Marr v. Financial Services Commission of Ontario, 2012 ONSC 1471

REASONS FOR JUDGMENT

HARVISON YOUNG J. (orally)

1The 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.

2The applicant raises a number of grounds in support of his position that this Court should allow the application and grant a stay.

3The 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).

4The 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.

5The 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.

6We do not agree that these grounds, either individually or cumulatively, constitute exceptional circumstances justifying this Court’s intervention at this interlocutory stage.

7The 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.

8We 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.

9With 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.

10The 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.

11The 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.

12In 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).

13We do not accept that these decisions are tainted by a fatal jurisdictional defect justifying judicial intervention at this time.

14The application is therefore dismissed.

SWINTON J.

15I 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.”