FINANCIAL SERVICES TRIBUNAL

Citation: Kimber v. Ontario (Superintendent Financial Services), 2015 ONFST 8 Decision No. I0592-2014-1 Date: 2015/03/19

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 (“NOP”) to Impose an Administrative Monetary Penalty issued by the Superintendent of Financial Services on July 25, 2014 against Jonathan Kimber;

AND IN THE MATTER OF a Request for Hearing filed by Jonathan Kimber on August 28, 2014.

B E T W E E N:

JONATHAN KIMBER

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

BEFORE:

John Solursh Chair of the Panel and Member of the Tribunal

APPEARANCES:

For the Applicant – Jonathan Kimber

For the Superintendent of Financial Services – Stephen Scharbach

Written Submissions

REASONS FOR DECISION

I. INTRODUCTION

1On August 28, 2014, the Applicant filed a Request for Hearing in relation to a Notice of Proposal to Impose an Administrative Monetary Penalty on Jonathan Kimber, dated July 25, 2014. The Superintendent responded by filing a Notice of Motion on November 14, 2014, seeking an order that the Request be dismissed without a hearing. On February 2, 2015, the Tribunal issued a Notice of Hearing in Writing (the “Notice”) in this matter, as authorised by Rule 14 of the Tribunal’s Rules of Practice and Procedure relating to the Superintendent’s Notice of Motion requesting an order dismissing the Applicant’s request for hearing. In the Notice, the Tribunal requested that the parties in their written submissions should address the following:

a) Precisely when the Applicant was given notice of the NOP or should be deemed to have been given notice, within the meaning of s. 441.3(5) of the Insurance Act.

b) If relevant, whether section 33 of the Insurance Act applies in these circumstances, and if so, what is the effective date of service of the NOP on the Applicant?

c) In the event that the Tribunal finds that the filing deadline under section 441.3(5) of the Insurance Act, is a procedural deadline to which section 4(1) of the Statutory Powers Procedure Act, R.S.O. 1990 s. 5.22 applies (see Chandler v. Ontario (Superintendent Financial Services) 2014 ONFST 12, is the Superintendent prepared to consent to a waiver of the deadline for filing the Request for Hearing in the Applicant’s case?

d) Any other matter they believe to be relevant to the issue of compliance with the statutory 15 day deadline for filing a Request for Hearing.

2The Superintendent and the Applicant made written submissions.

3Having 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.

4I have set out below the reasons for this decision.

II. THE FACTS AND SUBMISSIONS OF THE PARTIES

5The Applicant filed his Request for Hearing with the office of the Registrar of the Tribunal on August 28, 2014 according to the date stamp applied by the Registrar’s office. The Request for Hearing was dated August 10, 2014. The Applicant stated in his written submissions that he did sign for the NOP at the Post Office on August 8, 2014 and that he read the paperwork, saw the 15 day deadline for filing a request for hearing and made the assumption that he had 15 business days. He further stated in his written submissions that on the same weekend he completed the Request for Hearing and signed and dated it August 10, 2014. However, he acknowledged that he did not put the Request for Hearing in to the post box he believed until August 22, 2014.

6The Superintendent responded by filing a Notice of Motion on November 17, 2014, seeking an order that the Request for Hearing be dismissed without a hearing. That Notice of Motion contained affidavits sworn by John Allin, a Regulatory Discipline Officer of the Financial Services Commission of Ontario (“FSCO”), who is responsible for dealing with the Applicant’s NOP, and Therese Navrotski, a Legal Secretary 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.

7The Applicant is a life insurance agent licensed under 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”). According to the affidavit evidence of Mr. Allin, filed by the Superintendent in support of the motion, the NOP was sent by both registered and regular mail on July 25, 2014 to the address the Applicant had provided to FSCO as his address of record. The Applicant acknowledged in his written submissions that he did receive the NOP when he signed for it at the Post Office on August 8, 2014. Canada Post tracking information provided to the Tribunal by the Superintendent indicates that the registered letter was signed for by the Applicant on August 8, 2014. All the evidence consistently provides that the NOP was actually received by the Applicant via registered mail on August 8, 2014.

9Contrary to the statement in Mr. Allin’s affidavit, the affidavit of service by Therese Navrotski states that the NOP dated July 25 2014, and related details were sent to Jonathan Kimber on July 31, 2014. That affidavit of service is attached as an exhibit to John Allin’s affidavit. The Canada Post tracking information attached to Mr. Allin’s affidavit also indicates that the NOP was accepted at the Post Office on July 31, 2014. I find that the NOP was delivered to the Post Office on July 31, 2014 and on that date the process for delivery by registered mail commenced.

10As required by the 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 limit for filing such a request and provided details with respect to the procedure for filing a request for hearing, 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’s Request for Hearing, although according to his recollection signed earlier and subsequently mailed on August 22, 2014, was not actually received by the Tribunal until August 28, 2014 which I find to be the filing date in accordance with the Tribunal’s procedure. The Applicant acknowledges in his written submissions that he missed the deadline (by, according to him four days) and he requests that some leniency in the matter be made. He provided some reasons for his request for leniency.

12In his written submissions, the Superintendent argued that the Applicant filed his Request for Hearing beyond the statutory time limit. He also advised that he does not consent to extend that time limit. He therefore argues that the Tribunal should dismiss the Request for Hearing without holding a hearing.

III. LEGAL FRAMEWORK

13I adopt the following summary of the relevant legal framework set out by the Tribunal in Carvalho v. Ontario (Superintendent Financial Services) 2015 ONFST 5, issued on February 17, 2015:

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

Section 441.3(2) sets out the procedure the Superintendent must follow 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.

Section 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 not 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”.

Neither 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 of Hearing. However, s.4.1(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”.

Section 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).

The 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).”

14The Tribunal’s Rules of Practice and Procedure further provide that:

a) Filing means “the effect of delivery of a document to the Registrar and its receipt by the Registrar” (Rule 8.1).

b) A document may be filed in various ways including by (as occurred in this case) “regular or “registered mail” (Rule 8.03).

c) The Registrar “shall date stamp all documents when they are received and a document is deemed to be filed as of that date” (Rule 8.04), subject to a limited exemption which is not relevant in the present circumstances when the document is filed after 4:45 p.m. or on a day that is not a business day (in which event the document is deemed to have been filed or served on the next business day).

IV. ANALYSIS

15The NOP was issued to the Applicant on July 25, 2014. It was sent on July 31, 2014 to the address the Applicant had on file with FSCO as his address of record by registered and regular mail. It was actually received by the Applicant when he picked it up at the Post Office on August 8, 2014.

16The Request for Hearing was filed on August 28, 2014 in accordance with the Rules of Practice and Procedure of the Tribunal. 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”. More than 15 days elapsed between the issuing of the NOP and the filing of the Request for Hearing.

17However, 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.

18The Superintendent correctly noted that the Insurance Act contains a deemed service provision – Section 33. It states that service of any document for the purpose of a matter to be determined by the Superintendent or a proceeding before the Tribunal, may be made by registered mail addressed to the person’s last known address, and service by registered mail is effective on the seventh day after the document is mailed.

19According to the Superintendent’s evidence, the NOP was sent out by registered mail on July 31, 2014. Therefore, service under section 33(3) of the Act would have been effective on August 7, 2014. I agree with the comment by the Tribunal in Carvalho that 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.

20In any event, Mr. Kimber physically received the notice on August 8, 2014. The Tribunal accepts the Superintendent’s position that even if notice is regarded as having been “given” on the date that the Applicant actually receives the notice (August 8, 2014), his written request for a hearing was received by the Tribunal on August 28, 2014 which was more than 15 days after the notice was given. August 28, 2014 was the date of filing in accordance with the Tribunal’s Rules of Practice and Procedure. On this approach the statutory time limit would have expired on August 22, 2014 or, as the Superintendent noted in his written submissions, “most generously, August 23, 2014 (which is a Saturday and therefore extended to the next business day of August 25, 2014).”

21Whichever of the two approaches is applied, the statutory time limit expired a few days before the Request for Hearing was filed on August 28, 2014 which was a few days (possibly as little as 3 days) after the statutory time limit expired. In Chandler v. Ontario (Superintendent Financial Services), 2014 ONFST 12, 2014 ONFST12, and in the Carvalho decision, the Tribunal recently considered the consequences of failure to file a timely request for hearing.

In Chandler, Carvalho and this case, the Superintendent argued that the time limit established by Section 441.3 of the Act is a substantive rather than a procedural requirement, and the Tribunal has no power to waive that time limit under Section 4(1) of the Statutory Powers Procedure Act (the “SPPA”). The Tribunal, as in Chandler and in Carvalho, does not find it necessary to decide that point because even if the fifteen day time limit is a procedural rather than a substantive time limit, the fact is that the Superintendent has not consented to waive it (see also Scriver v. Ontario (Superintendent Financial Services), 2015 ONFST 4). The Tribunal does not have unilateral discretion under Section 4(1) of the SPPA to ignore a statutory time limit. The power of a Tribunal to waive a time limit depends on the consent of all parties and in this case, the Superintendent has made clear that he does not consent.

22Accordingly, 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 in any event the time limit has not been waived by the Superintendent.

V. ORDER

23The Tribunal orders that the Applicant’s Request for Hearing be dismissed without a hearing.

Dated at Toronto, this 19th day of March, 2015.

“John Solursh” John Solursh