Citation: Peo v. Ontario (Superintendent Financial Services), 2015 ONFST 33 Decision No. I0573-2014-1 Date: 2015/09/25

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended (the “Act”), in particular sections 441.1, 441.2, and 441.3;

AND IN THE MATTER OF a Notice of Proposal to Impose an Administrative Monetary Penalty dated July 25, 2014 issued by the Superintendent of Financial Services against Chinda Peo;

AND IN THE MATTER OF a Hearing in accordance with subsection 441.3(5) of the Insurance Act, R.S.O. 1990, c. I.8.

and

RESPONDENT

BEFORE:

Bethune Whiston Chair of the Panel and Member of the Tribunal

APPEARANCES:

For the Superintendent of Financial Services – Ms. Deborah McPhail, Counsel

The Applicant was not in attendance.

DATE HEARD: September 25, 2015

REASONS FOR DECISION

I. INTRODUCTION

1On July 25, 2014, the Superintendent of Financial Services (the “Superintendent”) issued a Notice of Proposal (“NOP”) to Impose an Administrative Monetary Penalty (“AMP”) on Ms. Peo for allegedly contravening certain provisions of the Act.

2On August 11, 2014, Ms. Peo filed, with the Registrar’s office at the Financial Services Tribunal (the “Tribunal”), a Request for Hearing to challenge the intended decision of the Superintendent.

3On May 29, 2015, a Pre-hearing Conference was held at the offices of the Tribunal and Ms. Peo was not in attendance despite being given notice of the Pre-hearing Conference on April 28, 2015. At the Pre-hearing Conference the Tribunal determined it was appropriate to proceed in the Applicant’s absence.

4The Pre-hearing Conference Memorandum (“PHCM”) indicated that if the Applicant “does not attend at the hearing of this matter, the Tribunal will proceed in her absence and will consider an application to dismiss the matter for failure to appear”.

5By letter dated June 11, 2015, enclosing a copy of the PHCM and a Notice of Hearing, Ms. Peo was advised that if she failed to attend the scheduled hearing on September 25, 2015, the Tribunal may do one of the following: the Tribunal may proceed in her absence, may dismiss the proceeding without a further hearing and without further notice, or may give notice of intention to dismiss the proceeding if reasonable cause for the failure to appear is not shown within 30 days of the giving of the notice. She was also advised in the June 11, 2015 letter, that one of the possible results of the above actions if she failed to attend would be that the Superintendent would carry out the terms of his NOP and issue an Order imposing the monetary penalty of $1,000 against her.

6As noted above, Ms. Peo was not in attendance at the hearing, which commenced 30 minutes subsequent to the stated starting time of 10:00 a.m., in order to give the Applicant additional travel time should that be necessary.

II. FURTHER CONSIDERATIONS AND Decision

7Subsequent to filing the Request for Hearing with the Registrar’s office, there is no indication that Ms. Peo has made any attempt to communicate with either the Tribunal or Superintendent’s Counsel in respect of this matter, whether in response to their attempts to communicate with her or otherwise.

8Considerable time and effort has been expended by the Tribunal and the Superintendent in responding to Ms. Peo’s Request for Hearing in this matter. Despite being advised, in the July 11, 2015 letter, that she could withdraw her Request for Hearing if she did not intend to proceed, Ms. Peo did not take any action to withdraw her Request. This necessitated Superintendent’s Counsel, two potential witnesses, the Court Reporter, the Registrar and the Chair of the Tribunal attending at the Hearing of this matter on September 25, 2015, with attendant costs and inconvenience.

9Superintendent’s Counsel submitted that, in light of the Applicant’s non-attendance, the facts in the NOP should stand and the proceeding should be dismissed without further hearing and without further notice. The dismissal is authorized by s. 35.01 of the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal.

10The Tribunal noted that the facts and circumstances surrounding the alleged contravention of the Act were not novel and had been the subject of several decisions of the Tribunal in recent months, providing the insurance industry with guidance in respect of these matters; for example, refer to Notta v. Ontario (Superintendent Financial Services), 2015 ONFST 2, Molenda v. Ontario (Superintendent Financial Services), 2015 ONFST 18 and Pirapakaran v. Ontario (Superintendent Financial Services), 2015 ONFST 20.

III. ORDER

11The Tribunal hereby dismisses this proceeding and directs the Superintendent, by order, to carry out his proposal to impose an AMP of $1,000 on the applicant, Ms. Peo.

Dated at Toronto, this 25th day of September, 2015.

“Bethune Whiston” Bethune Whiston