FINANCIAL SERVICES TRIBUNAL
2011 ONFST 3
Decision No. I0451-2011-1
IN THE MATTER OF the Insurance Act, R.S.O. 1990 c.1.8, as amended (the “Act”) and in particular Section 17 and subsection 393(10.2);
AND IN THE MATTER OF a decision dated November 12, 2010 of the Executive Director Licensing and Market Conduct Division of the Financial Services Commission by delegated authority from the Superintendent of Financial Services (the “Superintendent”), revoking the life insurance agent licence of Kofi Owusu Agyei-Amoama;
AND IN THE MATTER OF a Notice of Appeal in accordance with the Section 17(1) of the Act filed by Kofi Agyei-Amoama (the “Appellant”);
AND IN THE MATTER OF a Request that the Tribunal extend the time for filing the Notice of Appeal pursuant to the provisions of subsection 4(1) of the Statutory Powers Procedure Act, R.S.O. 1999 c.S.22.
BETWEEN:
KOFI AGYEI-AMOAMA
Appellant
- and -
THE SUPERINTENDENT OF FINANCIAL SERVICES
Respondent
BEFORE:
Mr. John M. Solursh Chair of the Tribunal and Chair of the Panel
APPEARANCES:
Mr. Kofi Agyei-Amoama on his own behalf
Ms. Larissa Easson for the Superintendent of Financial Services
INTRODUCTION:
The Appellant filed an Appeal on February 8, 2011 of a decision dated November 12, 2010 by the Superintendent’s Delegate revoking the Appellant’s life insurance agent licence. That filing occurred beyond the 30-day period prescribed for the filing of an Appeal under subsection 17(2) of the Act.
At the Pre-hearing teleconference in this matter held on March 17, 2011, the Superintendent took the position that the Tribunal did not have jurisdiction to extend the time for filing an appeal pursuant to the Act and that in any event an extension is not appropriate in this case. Accordingly, it was the position of the Superintendent that the Tribunal does not have jurisdiction to deal with the Appellant’s Appeal.
The Tribunal, with the agreement of the parties, adjourned the Pre-hearing conference to a date to be fixed by the Tribunal pending receipt and consideration by the parties of an anticipated decision of the Tribunal regarding its jurisdiction to extend the time limit under subsection 17(2) of the Act in the matter of Xiaodan Huang v. The Superintendent of Financial Services FST File No. I0453-2011-1. The Decision and order of the Tribunal in the Huang matter was issued on April 6, 2011 and circulated to the parties in this matter.
The pre-hearing conference in this matter resumed on April 18, 2011. It was conducted, at the request of the Appellant, as a teleconference rather than in person. The agreed purpose of the resumption of the pre-hearing conference was to address the issue as to whether the Tribunal has jurisdiction to extend the time for filing this appeal and if so whether it should agree to that extension. The parties agreed that if an extension was not granted, the Tribunal did not have jurisdiction to deal with the Appellant’s appeal.
LAW:
The relevant provisions of the Act are as follows:
Subsection 393(10.2)
The applicant or licensee may appeal to the Tribunal the decision of the Superintendent to refuse to grant a licence, to refuse to renew an existing licence or to revoke or suspend an existing licence.
Section 17
(1) If an appeal is provided for, a person affected by a decision of the Superintendent may appeal the decision to the Tribunal.
(2) A notice of appeal shall be in writing and shall be served on the Superintendent and filed with the Tribunal within 30 days after the date of the Superintendent’s decision or within such time period that this act specifies.
The Tribunal has jurisdiction to extend time limits pursuant to section 4 of the Statutory Powers Procedure Act which provides as follows:
4(1) Any procedural requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal.
The Tribunal concluded in its Huang decision that it had jurisdiction to waive the 30-day period for an appeal under subsection 393(10.2) of the Act, on the basis that the 30-day time period set out in Section 17 of the Act is a procedural requirement for purposes of subsection 4(1) of the Statutory Powers Procedure Act provided that consent to the waiver is given by all of the parties (the Applicant, the Superintendent and the Tribunal). In the Huang decision the Applicant and the Superintendent had both consented to the waiver of the time period for filing the appeal and the Tribunal determined that it was appropriate in the circumstances for it to exercise its discretion to waive that time period.
FACTS AND REASONS FOR DECISION:
Counsel for the Superintendent informed the Tribunal at the continued pre-hearing conference that the Superintendent, after consideration of the Huang decision and the facts in this matter, had decided he would not consent to a waiver of the 30-day time period with respect to the appeal filed by the Appellant. Superintendent’s counsel explained that the position of the Superintendent was based on his consideration of the specific facts set out in his file on this matter.
The information summarized by Superintendent’s counsel, which was acknowledged by Mr. Agyei-Amoama to be accurate, included a lengthy series of attempts to contact the Appellant by mail, regular mail and by telephone regarding an intention to revoke his licence having regard to the cancellation of his errors and omissions insurance policy, a related notice of an Opportunity for Hearing dated September 1, 2010 before an Advisory Board under the Act and also a Notice of the subsequent decision of the Superintendent’s Delegate. The Notice of the decision of the Superintendent’s Delegate included reference to the time limits for implementing an Appeal under the Act to this Tribunal. More recent mailings to Mr. Agyei-Amoama were sent to a new address provided in November 2010 by him.
Mr. Agyei-Amoama did not dispute the outline of facts by the Superintendent’s counsel. He confirmed that he had provided information about his new address to the Financial Services Commission of Ontario. However, he commented that he had failed to provide the unit number of the office at his new address and thus he said he had not actually received by mail the Notice of the decision of the Superintendent’s Delegate. He acknowledged that he had failed to provide, prior to November 2010, any up to date notice to the Superintendent of his full new address or contact information in accordance with the Insurance Act. He subsequently travelled abroad for several weeks. He was aware of the advisability of checking the related website of the Commission which listed the Superintendents decisions, but did not do so until after he had returned to Canada and he noticed on the website, after the time for filing an appeal had expired, the decision to revoke his licence.
The Tribunal does not have jurisdiction to extend a time limit under Section 4 of the Statutory Powers Procedure Act unless the consent of the parties has been obtained. That requirement cannot be met in this case because the Superintendent has refused to consent. The Superintendent’s decision in this case not to consent to an extension of time was made after consideration of the request by the Appellant for an extension of time to file an appeal. The Superintendent’s position does not seem unreasonable or arbitrary having regard to the circumstances recited by his counsel.
DECISION:
The Tribunal, in the absence of the Superintendent’s consent, lacks jurisdiction under subsection 4(1) of the Statutory Powers Procedure Act to extend the time limit for the Appellant to file a Notice of Appeal in this matter for purposes of subsections 393(10.2) and Section 17 of the Act. According, it is not necessary for the Tribunal to decide whether it would be prepared to exercise its discretion to extend the time limit for filing an appeal in this matter.
As was pointed out to Mr. Agyei-Amoama at the Pre-hearing conference by the Superintendent’s counsel, he is at liberty to apply under the Act for a new licence provided that he meets the requirements of the Act and related regulations.
DATED at Toronto, this 2nd day of May, 2011
“John Solursh”
Mr. John Solursh Chair of the Tribunal and Chair of the Panel