Scriver v. Ontario (Superintendent Financial Services), 2015 ONFST 4

FINANCIAL SERVICES TRIBUNAL

Citation: Scriver v. Ontario (Superintendent Financial Services), 2015 ONFST 4 Decision No. I0598-2014-1 Date: 2015/02/17

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 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 Adam Scriver;

AND IN THE MATTER OF a Request for Hearing filed by Adam Scriver on September 11, 2014.

AND IN THE MATTER OF a Notice of Intention to Dismiss the Request for Hearing issued on December 19, 2014.

B E T W E E N:

ADAM SCRIVER

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

BEFORE:

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

APPEARANCES:

For the Applicant – Adam Scriver (no written submissions received)

For the Superintendent of Financial Services – Stephen Scarbach

WRITTEN SUBMISSIONS ONLY

REASONS FOR DECISION

I. INTRODUCTION

1On September 11, 2014, the Applicant filed a Request for Hearing in relation to a Notice of Proposal to Impose an Administrative Monetary penalty on Adam Scriver, dated July 25, 2014. In response, the Superintendent filed a Notice of Motion on November 17, 2014 seeking an order dismissing the Request without a hearing. On December 19, 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:

1. 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.

3The Notice advised that the Tribunal’s opinion was based on the following facts:

1. On July 25, 2014, a Notice of Proposal (“NOP”) to Impose an Administrative Monetary Penalty was issued to Adam Scriver;
2. The NOP set out the 15 day statutory deadline for filing a Request for Hearing with this Tribunal;
3. On September 11, 2014, Adam Scriver filed a Request for Hearing with this Tribunal with respect to the NOP.
4. On November 17, 2014, Counsel for the Superintendent filed a Notice of Motion asking that the Request of Hearing be dismissed because it was filed after the expiry of the 15 day deadline for filing provided in s.441.3(5) of the Insurance Act.
5. The motion material includes an affidavit from John Allin, a Regulatory Discipline Officer with the Financial Services Commission of Ontario (“FSCO”). In that affidavit, Mr Allin swears that the NOP and accompanying materials, including a copy of the Form 1 Request for Hearing, was sent to Mr Scriver by regular and registered mail at a Brighton, ON address which is his mailing address according to FSCO’s records. He also swears that the registered letter was successfully delivered by Canada Post on August 14, 2014, according to Canada Post’s tracking record (a copy of which was attached to the affidavit), and was signed for by Mr Scriver. A copy of the scanned signature provided by Canada Post was attached to the affidavit; it is not clear that the signature is Mr Scriver’s.
6. In his Request for Hearing, Mr Scriver indicates that the Brighton ON address is his parents’ address. It is the same address he provided in his Request for Hearing. He does not indicate whether or not he provided FSCO with any other address at which to communicate with him.
7. He acknowledges receiving the NOP, but does not indicate when or how he received it.

4As 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.

The parties were expressly invited to make submissions on the question of whether the Notice had been sent to the correct address, and whether there were any issues concerning when Mr Scriver (the “Applicant”) should be considered to have been given the Notice of Proposal.

5The Superintendent made written submissions. The Applicant did not make any written submissions.

6Having considered the materials before me, I have determined that the Applicant’s Request for Hearing should be dismissed without a hearing because it was filed outside the statutory time limit, and the Superintendent does not consent to a waiver of that time limit.

7I have set out below the reasons for this decision.

II. The facts and submissions of the Parties

8As indicated above, the Applicant filed a Request for Hearing on September 11, 2014. In response, the Superintendent filed a Notice of Motion on November 17, 2014 seeking an order dismissing the Request without a hearing.

9That Notice of Motion contained affidavits sworn by John Allin, a FSCO Regulatory Discipline Officer responsible for dealing with the Applicant’s NOP, and Kelly Anne Roy, a Law Clerk employed at FSCO. Based on the information provided in the motion materials, the parties’ written submissions, and the information provided to me with those submissions, I make the following findings of fact.

10The Applicant is a life insurance agent licensed under the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

11On 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 on July 31, 2014 to an address in Brighton, Ontario which was his address of record with FSCO. While the Applicant was not currently living at the Brighton address, which was his parents’ address, he does not claim that he provided FSCO with any other address. Under the Insurance Act, s.1 of Regulation 347/04 of the Insurance Act, it is the responsibility of the licensee to keep FSCO advised of any changes of address.¹ The address to which the NOP was sent is the same as the address provided by the Applicant in his Request for Hearing. I therefore find that the NOP was sent to the Applicant at the appropriate address.

12Canada Post tracking information provided to the Tribunal by the Superintendent indicates that the registered letter was signed for by Adam Scriver on August 14, 2014. In fact, it is far from clear from the copy of the electronic signature provided that the Applicant personally signed for this letter. Although the Applicant made no submissions on that issue, I am not prepared to find that the Applicant was in actual receipt of the NOP on August 14, 2014. However, he clearly did receive it.

13As required by the Insurance Act, the NOP spelled 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 time limit 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.

14The Applicant did not file his Request for Hearing until September 11, 2014.

15In his written submissions, the Superintendent argues that the Applicant filed his Request for Hearing beyond the statutory time limit. He also advises that he does not consent to waive that time limit. He therefore argues that the Tribunal should dismiss the Request of Hearing without a hearing.

III. legal framework

16This matter deals with a NOP issued under s.441.3 of the Insurance Act.

17Sections 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.

18Section 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”. If the person to whom the NOP is issued does request 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”.

19Neither the Insurance Act (under which this penalty is imposed) nor the Financial Services Commission of Ontario Act, 1997 (under which this Tribunal is constituted) contains any provision for extending or waiving the statutory time limit for filing a Request for Hearing. However, s.4(1) of the Statutory Powers Procedure Act, R.S.O. 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”.

20Section 33 of the Insurance Act makes provision for service of documents, as follows:

(1) Unless otherwise provided in this Act or in the rules made by the Superintendent under subsection 16(3) or by the Tribunal, service of any document for the purpose of a matter to be determined by the Superintendent or a proceeding before the Tribunal that may result in an order or decision affecting the rights or obligations of a person required to be licensed under this Act may be made,

(a) on any person, by personal service on the person to be served;

(c) on a person who is not an insurer, by first class registered mail addressed to the person’s last known address;

(3) Service by first class registered mail under subsection (1) and service at a person’s place of residence under subsection (2) is effective on the seventh day after the document is mailed in accordance with subsection (1) or (2).

21The Tribunal’s Rules of Practice and Procedure provide that a Request for Hearing “shall be filed within the time period set out in the statute establishing the right to a hearing” (Rule 15.02).

IV. Analysis

22The NOP to the Applicant was issued on July 25, 2014. Despite the fact that the Applicant was not actually resident at the address to which the NOP was sent, it was sent to the address the Applicant had left on record with FSCO. This was clearly the appropriate address.

23The Request for Hearing was filed on September 11, 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”. Considerably more than 15 days elapsed between the issuing of the NOP and the filing of the Request for Hearing.

24However, the statutory time limit does not begin to run when the notice is issued; it begins to run when notice is “given”. It is therefore necessary to determine when notice was “given” for purposes of this provision.

25The Superintendent essentially treats the question of when notice was given as a question of fact. He submits that the notice was “given” on the day that Canada Post advises that Applicant signed for the registered letter containing the NOP, August 14, 2014, and calculates the 15 day time limit running from that date. On that approach, the statutory time limit expired on August 30, 2014.

26On the facts in this case, that approach may not be appropriate, since the evidence does not establish that the Applicant personally signed for the NOP or authorized that it be signed for on his behalf. In these circumstances, it may be more appropriate to have recourse to the provisions of the Insurance Act dealing with service (and “deemed service”) of documents such as the NOP. Under s.33(1) of the Act, service of such documents may be made by first class registered mail. Under s.33(3), service is effective on the seventh day after the document is mailed. According the Superintendent’s evidence, the NOP was sent out by registered mail on July 31, 2014. Service would then have been effective on August 7, 2014. In my view, the date of effective service can properly be treated as the functional equivalent of the date on which notice was given, at least in the absence of evidence to the contrary. On this approach, the statutory time limit would have expired on August 22, 2014.

27Whichever of these two approaches is applied, the statutory time limit expired well before the Request for Hearing was filed on September 11, 2014. In Chandler v. Ontario (Superintendent Financial Services), 2014 ONFST 12, a case involving the same statutory provisions as those at issue in this case, the Tribunal has recently considered the consequences of failure to file a timely Request for Hearing.

28In Chandler, the Superintendent argued that the time limit established by s.441.3 of the Insurance Act is a substantive rather than a procedural requirement, and the Tribunal has no power to waive that time limit under s.4(1) of the SPPA. The Superintendent has made the same submission in this case. The Tribunal did not find it necessary to decide the point, because “[e]ven if the 15 day time limit is a procedural rather than a substantive time limit, the Superintendent has not consented to waive it”. I take the same approach in this case.

29Section 4(1) of the SPPA does not give the Tribunal plenary discretion to ignore a statutory time limit; the Tribunal’s power to waive the time limit depends on the consent of all parties. In this case, the Superintendent has made it clear that he does not consent. Accordingly, I find that the Tribunal has no jurisdiction to proceed with a hearing on the merits of 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.

V. ORDER

30The Tribunal orders that the Request for Hearing be dismissed.

Dated at Toronto, this 17th day of February, 2015.

“Elizabeth Shilton” Elizabeth Shilton

Footnotes

1. 1O. 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”.