Citation: Chandler v. Ontario (Superintendent Financial Services), 2014 ONFST 12 Decision No. I0603-2014-1 Date: 2014/11/24

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended, in particular sections 441.1, 441.2 and 441.3, and the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28;

AND IN THE MATTER OF a Notice of Proposal to Impose an Administrative Monetary Penalty dated July 25, 2014 and an Order to Impose an Administrative Monetary Penalty dated September 26, 2014, both against Jermaine Chandler and issued by the Superintendent of Financial Services;

AND IN THE MATTER OF a Request for Hearing filed by Jermaine Chandler on October 6, 2014.

and

RESPONDENT

BEFORE:

Elizabeth Shilton Vice-Chair of the Tribunal and Chair of the Panel

APPEARANCES:

For the Applicant – Jermaine Chandler, Self-Represented

For the Superintendent of Financial Services – Stephen Scharbach

Date HearD:

Written Submissions

REASONS FOR DECISION

I. INTRODUCTION

1On October 8, 2014, the Tribunal issued a Notice of Intention to Dismiss in this matter, as authorized by Rule 33.01 of the Tribunal’s Rules of Practice and Procedure.

2That Notice advised the Applicant and the Superintendent of Financial Services (the “superintendent”) that:

Pursuant to Rule 33.01 of the Rules of Practice and Procedure For Proceedings Before the Financial Services Tribunal, the Tribunal hereby gives notice that it proposes to dismiss this proceeding without a hearing because it is of the opinion that:

An aspect of the statutory requirements for bringing the proceeding has not been met, in that the deadline for filing a Request for Hearing under s.441.3 (2) and (5) of the Insurance Act, R.S.O. 1990, c. I.8 was not met.

It relates to matters that are outside the jurisdiction of the Tribunal, in that the Superintendent has already issued his Order in connection with this Notice of Proposal and there is no statutory right of appeal to the Tribunal from an Order of the Superintendent.

The Tribunal’s opinion is based on the following facts:

On July 25, 2014, a Notice of Proposal to Impose an Administrative Monetary Penalty was issued to Jermaine Chandler;

The Notice of Proposal set out the 15 day statutory deadline for filing a Request for Hearing with this Tribunal;

On October 6, 2014, Jermaine Chandler filed a Request for Hearing with this Tribunal.

On October 6, 2014, Stephen Scharbach, Counsel for the Superintendent advised in an email to this Tribunal and to Mr. Chandler that the Canada Post tracking information shows that Mr. Chandler signed for the Notice of Proposal on August 1, 2014. In his request for hearing, Mr. Chandler effectively confirms this by stating that he received registered mail in connection with this matter in August.

It therefore appears that Mr. Chandler received the Notice of Proposal considerably more than fifteen days before he filed his Request for Hearing.

In his email of October 6, 2014, Stephen Scharbach advised that the Superintendent had issued an Order to Impose an Administrative Monetary Penalty on Jermaine Chandler on September 26, 2014, since no request for hearing with respect to the Notice of Proposal had been filed with the Tribunal by that date. A copy of the Order was attached to the email.

3As part of the Notice of Intention to Dismiss, the parties were advised:

Take notice that you have the right to make written submissions to the Tribunal on the issue of whether the Tribunal should dismiss this proceeding without a hearing, provided they are received within 30 days of the giving of this notice.

4Both the Applicant and the Superintendent made written submissions. Having considered those submissions, I have determined that the Applicant’s Request for Hearing should be dismissed for two reasons. First, it was filed outside the statutory time limit. Second, the Superintendent had already issued the Order he proposed to make in the Notice of Proposal, prior to the filing of the Request for Hearing. Accordingly the Tribunal no longer has jurisdiction to make an order with respect to the Notice of Proposal, and has no jurisdiction to consider an appeal from the Order.

5I have set out below the reasons for this decision.

II. The facts and submissions of the Parties

6Based on the parties’ written submissions, and on the information provided to me with those submissions, I make the following findings of fact.

7The Applicant is a life insurance agent licensed under the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

8On July 25, 2014, the Superintendent issued to the Applicant a Notice of Proposal to Impose an Administrative Monetary Penalty (“NOP” to impose an “AMP”). The NOP was sent by both registered and regular mail to an address in Toronto (likely the address the applicant had provided to FSCO, although this fact was not specified in the materials before me.)¹

9Although the Applicant no longer lived at that address, which was the address of his parents, the Canada Post tracking information (a copy of which was enclosed with the submissions) confirms that the registered letter was signed for on August 5, 2014.²

10As required by the Insurance Act, the NOP set out the Applicant’s right to request a hearing before this Tribunal with respect to the NOP. It drew attention to the 15 day statutory deadline for filing such a request, and provided details with respect to the procedure for filing, including the Tribunal’s website address. The NOP also advised that if no request for hearing was made, the Superintendent may carry out the proposal to issue the AMP.

11The Applicant did not file a Request for Hearing within 15 days, and on September 26, 2014, the Superintendent issued an order which imposed the AMP, as proposed in the NOP. That order was sent by regular and registered mail to the Applicant on September 29, 2014.

12On October 6, 2014, the Applicant filed a Request for Hearing with this Tribunal.

13In his written response to the Notice of Intention to Dismiss, the Applicant made submissions with respect to his receipt of the NOP and the steps he took to respond to the NOP once he received it. He also made submissions with respect to the merits of the NOP. Since the issue here concerns only whether the Tribunal has jurisdiction to proceed with a hearing on the merits of the NOP, I have not reviewed the Applicant’s submissions on the merits.

14With respect to the issue of timeliness, the Applicant made a number of factual submissions. The sequence of events he explained was not always clear. However, as I understand it, the Applicant relies on the following:

a. The address to which the NOP was not his current address; he described it as a previous address.

b. He was employed by Sun Life up to July 1, 2014. When he left Sun Life, he ceased to have access to the laptop on which he had been receiving email.

c. His departure from Sun Life may have required a change in his contact info with FSCO, but he appears to have left the task of making that change to Sun Life.

d. He received the NOP from the Superintendent sometime in August, forwarded from his previous address to which it had been sent. He asserts that he did not sign for any registered mail in August, but otherwise provided no information about how the letter ultimately reached him.

e. He states that once he received the NOP, he contacted FSCO (apparently Mr Scharbach’s office, since that name appears on the NOP). He asserts that he was told to wait for forms for an appeal to arrive via email. When no forms arrived, he contacted both the Tribunal and FSCO and received help in finding and completing the forms. He does not specify the dates on which any of these contacts took place, or explain why it took him until October 6, 2014 to file the Request for Hearing.

f. He asserts that he received the Tribunal’s Notice of Intent to Dismiss on October 24, 2014, although it is dated October 8, 2014. (It was sent to the St Catherine’s address he provided in his Request of Hearing).

15The Applicant made no legal submissions with respect to the two issues raised in the Notice of Intention to Dismiss.

16In his written submissions, the Superintendent takes the position that that the Tribunal should dismiss the Request of Hearing.

17The Superintendent submits that the Canada Post tracking information confirms that the registered NOP was received and signed for by the Applicant on August 5, 2014. He therefore submits that the Applicant has until August 21, 2014 to submit a Request for Hearing.

18With respect to the two issues raised in the Tribunal’s Notice of Intention to Dismiss, the Superintendent argues in his written submissions as follows:

a. Firstly, the request for hearing was made after the 15-day deadline expired. The Superintendent submits that this deadline is a substantive statutory requirement that limits the Tribunal’s jurisdiction to hold a hearing. The Tribunal has not been given any statutory authority to extend the deadline. Therefore, once the deadline passed, the right to a Tribunal hearing ceased to exist.

b. Secondly, the right to a hearing is limited to a hearing about the proposal, i.e., the Superintendent’s proposal to impose a penalty. Once the deadline has passed, the Act provides that the Superintendent may carry out his proposal and make the order. Once the order is made, a right to a hearing about the proposal no longer exists because the proposal has been replaced with an order.

c. Lastly, the Tribunal has no authority to hold a hearing or entertain an appeal in respect of an order lawfully issued by the Superintendent.

III. legal framework

19This matter deals with a NOP issued under s.441.3 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

20Sections 441.3(2) sets out the procedure the Superintendent must follows if he decides to impose a general AMP (as opposed to a summary AMP), as follows:

If the Superintendent proposes to impose an administrative penalty under this section, the Superintendent shall give written notice of the proposal to the person, including the details of the contravention or failure to comply, the amount of the penalty and the payment requirements; the Superintendent shall also inform the person that he, she or it may request a hearing by the Tribunal about the proposal and shall advise the person about the process for requesting a hearing

21Section 441.3(5) then provides as follows: “If the person requests a hearing in writing within 15 days after the notice under subsection (2) is given, the Tribunal shall hold a hearing”.

22If the person to whom the NOP is issued requests a hearing, s.441.3(6) authorizes the Tribunal, to issue an order to “direct the Superintendent to carry out the proposal, with or without changes, or substitute its opinion for that of the Superintendent”.

23However, s.441.3(7) goes on to provide that “If the person does not request a hearing or does not make the request in accordance with subsection (5), the Superintendent may carry out the proposal”. Once the Superintendent makes an order to carry out the proposal under s.441.3(7), there is no provision in the Act for anyone to request a hearing or file an appeal before the Tribunal with respect to that order.

24Neither the Act under which this penalty is imposed nor the Financial Services Commission of Ontario Act,1997 (“FSCO Act”) under which this Tribunal is constituted contain any provision for extending or waiving the time for filing a Request of Hearing. However, s.4(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”), which applies to proceedings before the Tribunal, provides that “[a]ny 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”.

25The Tribunal’s own Rules of Practice and Procedure provide that a Request of Hearing “shall be filed within the time period set out in the statute establishing the right to a hearing” (Rule 15.02).

IV. Analysis

The Timeliness of the Request for Hearing

26The NOP to the Applicant was issued on July 24, 2014. The Request for Hearing was filed on October 6, 2014. As noted above, s. 441.3(5) of the Act provides as follows: “If the person requests a hearing in writing within 15 days after the notice under subsection (2) is given, the Tribunal shall hold a hearing”.

27Some 73 days elapsed between the issuing of the NOP and the filing of the Request for Hearing. However, the statutory time line does not begin to run when the notice is issued; it begins to run when notice is “given”.

28In this case, it is not clear when notice should be considered to have been given. Under most statutes under which this Tribunal functions, there are statutory provisions or regulations which deal with when notice should be “deemed” to be given in cases in which there is a dispute about whether and when notice was actually given. In this case, however, my attention was not drawn to any provisions of the Insurance Act or regulations addressing that issue, although s. 33 of the Act would clearly have some relevance in a proper case.

29The parties essentially treated the question of when the NOP was given as a question of fact. The Superintendent submits that the registered letter containing the NOP was signed for on August 5, 2014, and therefore the 15 days begins to run from that date. The Applicant denies that he signed for the letter, and it is not clear on the material before me whose signature appears on the Canada Post tracking form. The Applicant does not provide any alternative date as the date he received the NOP.

30The Applicant concedes, however, that he did receive the NOP sometime in August 2014. Even if he received it on the last day of August, his Request for Hearing on October 6, 2014 was filed considerably more than 15 days after that date. Accordingly, the Request for Hearing is clearly out of time. The issue I must consider is whether I nevertheless have jurisdiction to hold a hearing on this matter.

31This is the first time this Tribunal has considered whether it has jurisdiction to proceed with a hearing on a Request for Hearing with respect to an AMP issued under s. 441.3 of the Insurance Act, when that Request has been filed outside the 15 day time limit established under s.441.3(5).

32The Tribunal has considered the matter of time limits with respect to similar provisions in the MBLAA. In Viau v. Ontario (Superintendent of Financial Services), 2010 ONFST 8 the Tribunal considered the matter in the context of the 15 day statutory time limit established by s.40(1) of the MBLAA for filing appeals against summary AMPs.

33In Viau, the Tribunal commenced its analysis with the observation:

Like other administrative tribunals, the Tribunal is a creature of statute. It has exclusive jurisdiction to exercise powers conferred upon it by the Ontario legislature, but it has no inherent jurisdiction to conduct legal proceedings. Accordingly, unless a person or entity has an express statutory right to request a hearing before the Tribunal, or an express statutory right to appeal a decision of the Superintendent to the Tribunal, the grievance of this person or entity cannot be brought before the Tribunal.

34The Tribunal in Viau held that it had no jurisdiction to deal with a Request for Hearing filed outside the statutory time limit established under s.40 (4) of the MBLAA. It concluded that the time limit established under s.40 was a substantive component of the right to appeal, and accordingly, s.4(1) of the SPPA, which applies to “procedural requirements”, has no application. In the absence of any other statutory authority to extend the time limit, it could not be extended or waived even on consent of the parties and the Tribunal.

35The decision in Viau has direct application only to s.40 of the MBLAA. However, in reaching its conclusion, the Tribunal contrasted the situation under s.40 of the MBLAA with the situation under s.39 of the MBLAA, which deals with general (as opposed to a summary) AMPs. The Tribunal suggested that the time limit which applied to the filing of a Request for Hearing under s.39 of the MBLAA could be interpreted as a merely procedural time limit, which could be waived under s.4(1) the SPPA. Although these comments in Viau were obiter, the Tribunal has subsequently accepted and applied them in the context of s.39 of the MBLAA: see Singh v Ontario (Superintendent Financial Services), 2013 ONFST 4.

36In Singh, however, the Tribunal emphasized that although s.4(1) of the SPPA could apply to a Request for Hearing under s.39, the Tribunal can waive a procedural requirement under that section only where there is consent of the parties and the tribunal. In Singh itself, the Superintendent did not consent. Therefore the Tribunal held that it had no jurisdiction to hear the Request for Hearing on the merits.

37This case deals with s.441.3 of the Insurance Act, which is directly analogous to s.39 of the MBLAA. The Superintendent invited me to reject the reasoning in Viau (and presumably in Singh) and hold that the time limit under s.441.3 for filing a Request for Hearing is, like the time limit established in s.40(4) of the MBLAA, a substantive rather than a procedural requirement, and therefore a requirement that cannot be waived under s.4(1) of the SPPA.

38I do not find it necessary to address this argument. Even if the 15 day time limit is a procedural rather than a substantive time limit, the Superintendent has not consented to waive it. Accordingly, I have no jurisdiction to proceed with a hearing on the merits. (In the absence of consent from the Superintendent, the issue of whether or not the Tribunal would have consented does not arise.)

39Accordingly, I find that the Tribunal has no jurisdiction to proceed with a hearing in this case because the Request for Hearing was filed outside the statutory time limit, and the time limit has not been waived by the Superintendent.

The Significance of the Fact that the Superintendent has Already Issued his Order

40The conclusion reached above would be a sufficient on its own to dismiss the Request for Hearing. However, I will also consider the additional problem raised by the fact that by the time the Request for Hearing was filed, the Superintendent had already issued the proposed order.

41The NOP was issued on July 24, 2104. On September 26, 2014, more than two months later, the Superintendent issued the order to which the NOP referred.

42The Superintendent submitted that once he has actually issued an order, it is no longer a proposed order, and the Tribunal may not deal with a Request for Hearing about the proposed order. I accept this submission. Once the Superintendent’s order is issued, the NOP is in effect moot, and no useful purpose would be served by considering whether or not it should have been issued, unless it is set aside.

43The Superintendent also submitted that there is no statutory right of appeal to the Tribunal from an order made by the Superintendent in the circumstances of this case, and accordingly the Tribunal cannot review the order. I accept this submission as well: see Shi v. Ontario (Superintendent Financial Services), 2014 ONFST 2, in which the Tribunal reached the same conclusion under the Pension Benefits Act.

44Accordingly, I also find that the Tribunal has no jurisdiction to proceed with a hearing on this matter because the Superintendent has already issued the order proposed in the NOP, and the Tribunal has no jurisdiction to deal with an appeal from that order.

V. ORDER

45The Tribunal orders that the Request for Hearing be dismissed.

Dated at Toronto, this 24th day of November, 2014.

“Elizabeth Shilton” Elizabeth Shilton

Footnotes

O. Reg 347/04 (Agents) under the Insurance Act provides as follows: “An agent licensed under this Regulation shall, if the agent’s mailing address, e-mail address, telephone number or fax number changes, provide the Superintendent with the new address or number within five days after the change is effective”. The obligation is a personal obligation of the agent.
The Superintendent initially advised that the date the registered letter was picked up was August 1, 2014; this is the date mentioned in the Notice of Intention to Dismiss. In fact, the date was August 5, 2014.