FINANCIAL SERVICES TRIBUNAL
2012 ONFST 9
Decision No. M0481-2011-1
IN THE MATTER OF the Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c. 29 (the “Act”), in particular sections 7, 19, 21, 29, 38 and 39; the Mortgage Brokerages: Standards of Practice Regulation, O. Reg. 188/08, in particular section 42; and the Administrative Penalties Regulation, O. Reg. 192/08, in particular section 3;
AND IN THE MATTER OF a Notice of Proposal issued by the Superintendent of Financial Services to impose an administrative monetary penalty;
AND IN THE MATTER OF a Request for Hearing filed by Sultan Investments Realty Ontario Corporation, on September 1, 2011, pursuant to subsection 39(5) of the Act.
BETWEEN:
SULTAN INVESTMENTS REALTY ONTARIO CORPORATION
Applicant
– and –
SUPERINTENDENT OF FINANCIAL SERVICES
Respondent
BEFORE:
Mr. Denis Boivin Member of the Tribunal and Chair of the Panel
Mr. Jeffrey Richardson Member of the Tribunal and Member of the Panel
Ms. Heather Gavin Member of the Tribunal and Member of the Panel
APPEARANCES:
Mr. Sultan Afzal Principal Broker for Sultan Investments Realty Ontario Corporation, representing the Applicant
Mr. Stephen Scharbach Representing the Respondent, the Superintendent of Financial Services
HEARD:
January 23, 2012
REASONS FOR DECISION
A. INTRODUCTION
This is a decision upon a hearing held pursuant to s. 39(5) of the Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006 (“the Act”) at the request of Sultan Investments Realty Ontario Corporation (“Sultan”) through its Principal Broker, Mr. Sultan Afzal.
On August 3, 2011,the Superintendent of Financial Services (the “Superintendent”) issued a Notice of Proposal which proposes an administrative monetary penalty of $1,500 against Sultan for failing to have errors and omission insurance (“E&O insurance”) as required pursuant to O.Reg. 188/08, s.42, made pursuant to the Act, for the period of July 2, 2010 to December 19, 2010.
The staff of the Registrar’s office of the Tribunal attempted to schedule a prehearing teleconference with the parties, but was unable to reach Mr. Afzal. Messages were left for him at the telephone number provided on the Request for Hearing form, but Mr. Afzal did not reply. Accordingly, the date for a hearing was set for January 23, 2012 and a Notice of Hearing was sent by the Registrar to the parties, Sultan and the Superintendent, on November 4, 2011. The Notice included a statement that “if you do not participate in the hearing in accordance with this Notice, the Tribunal may proceed without your participation and you will not be entitled to any further notice in this proceeding.” This statement is part of the required content of a Notice of Hearing prescribed by the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (see Rule 22.03(c)).
Sutlan’s principal broker, Mr. Afzal did not appear before the Tribunal at the appointed time and place of the hearing. He did not send a representative in his place and he did not advise the Registrar, at any time, that he would not be appearing