FINANCIAL SERVICES TRIBUNAL
2013 ONFST 4
Decision No. M0514-2013-1
IN THE MATTER OF the Mortgage Brokerages, Lenders and Administrators Act 2006, S.O. 2006, c. 29, in particular sections 38 and 39, and the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28;
AND IN THE MATTER OF the Notice of Proposal of the Superintendent of Financial Services, dated November 8, 2012, to impose an Administrative Monetary Penalty on Daljit (also known as Ricky) Singh;
AND IN THE MATTER OF a Hearing in accordance with subsection 39(5) of the Mortgage Brokerages, Lenders and Administrators Act 2006, S.O. 2006, c. 29.
B E T W E E N:
DALJIT SINGH
APPLICANT
and
SUPERINTENDENT OF FINANCIAL SERVICES
RESPONDENT
BEFORE:
Florence A. Holden Vice-Chair of the Tribunal and Chair of the Panel
APPEARANCES:
For the Applicant – Daljit Singh For the Superintendent of Financial Services – Larissa Easson
April 26, 2013
ORDER
I. INTRODUCTION
1On April 26, 2013, a pre-hearing was held in the above matter, chaired by Florence A. Holden, Vice-Chair, Financial Services Tribunal (“Tribunal”) and Chair of this Panel.
II. PRELIMINARY MATTERS
2By way of motion at a pre-hearing conference held in person on April 26, 2013, counsel for the Superintendent asked that this matter be dismissed for lack of jurisdiction by the Tribunal. After hearing and considering submissions by both parties, the Chair of the Panel, sitting alone, accepts the Superintendent’s submissions that the Financial Services Tribunal has no jurisdiction to accept the Request for Hearing filed by the Applicant, Daljit Singh, also known as Ricky Singh, as the request was made out of time.
III. BACKGROUND
3On November 8, 2012, the Superintendent of Financial Services of Ontario (Superintendent) issued a Notice of Proposal to Impose an Administrative Monetary Penalty (Notice) against the Applicant, Daljit Singh (also known as Ricky Singh). The Notice was issued for alleged breaches of the Mortgage Brokerages, Lenders and Administrators Act, 2006 (“Act”) and regulations related to improper public relations materials and breaches related to the improper acceptance of an advance payment or fee pursuant to section 39 of the Act.
4The Notice clearly indicated that the Applicant had fifteen days after the Notice is received or deemed to be received to file a request for hearing. This 15-day period reflects the provisions of subsection 39(5) of the Act.
5The Notice also indicated that failure to request a hearing or to make a request in accordance with section 39(5) of the Act provides the Superintendent with the right to carry out Notice, with the administrative penalty becoming payable within 30 days of receipt of the order or such longer time as may be specified in the order.
6Ms. Easson submitted that two attempts were made to serve the Notice on the Applicant. The first time the notice was sent by regular and registered mail to Mr. Singh’s address on November 8, 2012. Pursuant to section 8(2) of Regulation 190/08, delivery of the notice was effective on November 13, 2012. Mr. Singh conceded that the address used was the address on file with the Financial Services Commission of Ontario (“FSCO”), but was not current. He admitted that he had not notified FSCO of his change in address and still used that same address on his Request for Hearing. Ms. Easson advised that FSCO received information from Canada Post that the Notice was not picked up by the Applicant.
7The Notice was served a second time on the Applicant on January 16, 2013 by fax, with an effective date of January 21, 2013. Mr. Singh conceded receipt on January 16^th^.
8Ms. Easson advised that she contacted the Applicant’s broker on February 19, 2013 and offered to consent to a late request provided it was filed by February 20. The Registrar of the Tribunal did not receive a Form 1, Request for Hearing until February 21, 2013.
9Counsel for the Superintendent objected to the late filing on March 14, 2013. Both parties made written and oral submissions at this pre-hearing conference on the motion by the Superintendent to dismiss the application for failure of jurisdiction of the Tribunal due to the late filing and lack of consent by the Superintendent to further consent to the delay.
IV. ANALYSIS
10The question of whether the fifteen-day statutory deadline imposed by section 39(5) of the Act is a procedural requirement has already been addressed and affirmed by this Tribunal in the case of Gregory A. Viau and Superintendent of Financial Services, FST Decision No. M0420-2009-1. In that decision, although the main section under consideration was section 40(4) of the Act, the Tribunal also reviewed the general jurisdiction of the Tribunal to conduct proceedings in any given matter and subsection 39 of the Act. It confirmed the general proposition that the Tribunal is established by statute, namely by subsection 6(1) of the Financial Services Commission of Ontario Act, 1997 (“FSCO Act”). Under section 20 of the FSCO Act, the jurisdiction of the Tribunal to conduct proceedings derives from an enabling statute that confers powers on or assigns duties to it, in this case the Mortgage Brokerages, Lenders and Administrators Act, 2006.
11As noted in Viau, the Act under subsection 39(2) recognizes the right of a person to request a hearing with respect to a notice of proposal, as in this case, and provides in subsection 39(5) that the Tribunal “shall hold a hearing...if the person or entity requests a hearing in writing within 15 days after the notice ..is received”.
12Section 6(2) of Regulation 190/08 provides for effective delivery if sent by registered mail on the earlier of the fifth day after mailing or the day after its receipt was acknowledged by the addressee or an individual accepting it on behalf of the addressee. In this case the deemed delivery date was November 13, 2012. Even if service had been defective on first delivery, which it was not, the Applicant acknowledged delivery of the fax on January 16^th^ which under subsection 6(2)(2) is deemed to be delivered on the day the fax is sent. In either case, delivery of his Request for Hearing was not in accord with the 15-day requirement.
13The process for requesting a hearing is a procedural requirement. Under section 22 of the FSCO Act, the Tribunal has been granted the power to make rules for the practice and procedure to be observed in any proceeding before it. Under section 15(2) of the Tribunal’s Rules of Practice and Procedure for Proceedings Before the Financial Services Tribunal, issued August 2012, a Request for Hearing “shall be filed within the time period set out in the statue establishing the right to a hearing..”. It can only be waived by the Tribunal on consent of the parties and the Tribunal under section 4(1) of the Statutory Powers Procedure Act. As noted above, the Superintendent does not give such consent.
14There are no precedents under the Act to my knowledge where the procedural requirements under subsection 39(5) have been waived without the consent of the parties.
V. ORDERS
15Based on the above analysis and the precedent of the Viau decision, I am compelled to conclude that the Applicant failed to file his Request for Hearing within the 15 day deadline imposed under subsection 39(5) of the Act, and consequently, in the absence of consent from the Superintendent, that the Tribunal has no jurisdiction to conduct a hearing in this matter.
Dated at Toronto, this 6^th^ day of May, 2013.
“Florence A. Holden”
Florence A. Holden Vice-Chair of the Tribunal and Chair of the Panel