JB Lifestyle Inc. v. Ontario (Superintendent Financial Services), 2016 ONFST 7

Citation: JB Lifestyle Inc. v. Ontario (Superintendent Financial Services), 2016 ONFST 7 Decision No. SP657-2015-1 Date: 2016/03/15

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended (the “Act”), in particular sections 288.6 and 288.7;

AND IN THE MATTER OF a Notice of Proposal to Revoke Licence against JB Lifestyle Inc. dated September 10, 2015 issued by the Director, Licensing Branch by delegated authority from the Superintendent of Financial Services;

AND IN THE MATTER OF a Hearing in accordance with subsection 288.7(3) of the Act.

and

BEFORE:

Florence A. Holden Chair of the Panel and Chair (Acting) of the Tribunal

For the Applicant – Jeanette Boltyansky (self-represented)

For the Superintendent of Financial Services – Douglas Lee, Counsel

I. INTRODUCTION

1The Superintendent of Financial Services (“Superintendent”) issued a Notice of Proposal (“NOP”) on or about September 21, 2015 to revoke the service provider licence of JB Lifestyle Inc. (the “Applicant”) without the Applicant’s consent and pursuant to subsections 288.6 and 288.7 of the Act. The NOP alleged that the Applicant failed to file its annual information return (“AIR”) with the Superintendent as required by subsection 21(1) of Ontario Regulation 90/14 under the Act and related fees authorized under section 121.1 of the Act; and that the Applicant further contravened subsection 442.1(2) of the Act by failing to respond to related communications from staff of the Financial Services Commission of Ontario (“FSCO”). Pursuant to subsection 288.7(2) of the Act, notice was given to the Applicant under the NOP and the Applicant filed a Request for Hearing with the Financial Services Tribunal (“FST”) on October 22, 2015. A pre-hearing conference was scheduled for January 11, 2016, on notice to the Applicant dated November 13, 2015.

2On November 30, 2015, the Superintendent filed a Notice of Motion with the FST in this matter seeking to dismiss the Applicant’s Request for Hearing, pursuant to Rule 33.01 of the Rules of Practice and Procedure for Proceedings Before the Financial Services Tribunal (the “Rules”). The grounds for the motion were that the Applicant filed its Request for Hearing beyond the 15-day deadline contained within subsection 288.7(3) of the Act, and that the Applicant’s right to a hearing terminated on the expiry of the 15-day filing period and consequently the Tribunal lacked jurisdiction to hold a hearing. In support of his motion on November 30, 2015, the Superintendent filed the affidavit of Donnette Vassell sworn November 20, 2015.

3The Applicant failed to attend the pre-hearing conference on January 11, 2016. The Tribunal issued a Notice of Intention to Dismiss the proceeding without a hearing to the Applicant pursuant to Rule 33.01(c) of the Rules because a statutory requirement for bringing the proceeding had not been met, namely the failure to file its Request for Hearing within the prescribed 15-day period. The Applicant was accorded the right to make written submissions to the Tribunal by February 12, 2016 on the issue of whether the Tribunal should dismiss this proceeding without a hearing.

4The Superintendent filed its submissions on January 4, 2016. The Applicant’s representative, Jeanette Boltyansky, filed a response with the Tribunal on February 10, 2016.

5For the reasons outlined below, the Superintendent’s motion is granted and the Applicant’s request for a hearing is dismissed.

II. FACTS

6In the absence of evidence to the contrary, we accept the Superintendent’s contention that Jeanette Boltyansky is the Principal Representative of the Applicant.

7Although the parties did not file an agreed statement of facts, Ms. Boltyansky’s Request for Hearing and motion submissions do not dispute the Applicant’s failure to file the AIR and related fee on time or to respond to FSCO enquires as outlined in the NOP and in Ms. Vassell’s affidavit. However nothing turns on this alone since the Superintendent’s motion succeeds on other grounds.

8The Applicant provided no explanation for the late filing of its Request for Hearing, nor did Ms. Boltyansky indicate that she failed to receive the NOP or had otherwise met the 15-day deadline. Further, Ms. Boltyansky did not request a hearing on this motion or provide a defence to the motion, but simply filed a letter asking for reinstatement of the Applicant’s licence and an alternative penalty. She provided no explanation for her failure to attend the pre-hearing conference.

III. ISSUES

9The issues in this motions are:

a. Did the Applicant file the Request for Hearing within the time limit set out in subsection 288.7(3) of the Act?

b. If the answer to issue (a) is no, then does the Tribunal have jurisdiction to hold a hearing in this matter?

IV. BACKGROUND AND ANALYSIS

10Under amendments to the Act, FSCO began accepting service provider licence applications on June 1, 2014. The holder of a service provider licence is eligible to be paid directly by auto insurers for prescribed goods or services in connection with statutory accident benefits for which it submits invoices directly through the Health Claims for Auto Insurance program: see subsection 288.2(1) of the Act. Licensing became mandatory as of December 1, 2014. Unlicensed providers can continue invoicing claimants directly, who will in turn be able to seek reimbursement from their insurers for eligible expenses: see subsection 288.2(3) of the Act.

11Applications for a service provider licences are made by the Principal Representative who is the person designated by the service provider to be the primary contact with FSCO and who will be primarily responsible for the service provider’s licence and compliance with the law. It is the Principal Representative who is responsible for filing the annual information return and related fee. As with other licensed professionals, service providers who want to be licensed must accept the regulatory regime to which they are subject, including regulation by FSCO and fulfillment of their duties under the Act.

12Under the first issue, I find that in the absence of any alternative evidence from the Applicant, that there are clear, convincing and reasonable grounds to believe that the answer to issue (a) is no. I accept the affidavit of Donnette Vassell that the NOP was served by regular and registered mail to the attention of its principal representative, Jeanette Boltyansky at the address for the Applicant as it appears on FSCO’s licensing records. The Applicant does not dispute service and in her Request for Hearing acknowledges that she “uncovered the missed letters and notices from FSCO” in September 2015. At that point, I find that she still could have filed a Request for Hearing by October 9, 2015 when it was due.

13The NOP clearly indicated that if no Request for Hearing was submitted within 15 days after the NOP was given, that “the Superintendent will carry out the proposal to revoke the service provider licence of JB Lifestyle Inc. pursuant to subsection 288.7(7) of the Act”.

14The Applicant’s Request for Hearing was filed with the Tribunal as indicated on the date stamp on October 22, 2015. It was signed on October 20, 2015, well past the filing deadline. Under Rule 8.04 of the Rules, a document filed with the Tribunal is deemed to be filed as of the date stamp subject to a limited exception which has no application in this case. The Applicant does not dispute the late filing date, nor was any explanation provided. Consequently I must come to the conclusion that the Applicant did not file its Request for Hearing within the statutory time frame.

15The Superintendent submits that the deadline in subsection 288.7(3) of the Act is a substantive requirement that must be met before the Tribunal has jurisdiction to commence a hearing. For the purposes of this motion, the Superintendent has conceded that it is unnecessary for the Tribunal to decide whether the 15-day deadline is a substantive or procedural requirement, since in any event, the Superintendent has not consented to its waiver or extension. The Superintendent argues that this conclusion is consistent with several recent cases previously decided by the Tribunal under the Act, although those cases related to time limits applicable to a hearing request to challenge a proposal to impose an administrative monetary penalty.¹

16Further, in Lee v. Ontario (Superintendent Financial Services)², similar reasoning was used in the case of a late hearing request that challenged a proposal to revoke a mortgage broker’s licence and concluded that the Tribunal had no jurisdiction to proceed with a hearing.

17As stated in prior decisions of the Tribunal, 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 Act.

18The Act under subsection 228.7(2) permits a Request for Hearing (Form 1) to be filed with the Tribunal within 15 days after the NOP is given. Service of the NOP by registered mail was received by an agent of the Applicant on September 24, 2015, as signed by “R Ogalasto”. The Applicant does not dispute such service, or the late filing of its Request for Hearing.

19Under section 15.02 of the Tribunals’ Rules, a Request for Hearing “shall be filed within the time period set out in the statute establishing the right to a hearing”. Consistent with Rule 13.05 and section 4(1) of the Statutory Powers Procedure Act, if it is a procedural requirement it can only be waived by the Tribunal on consent of the parties and the Tribunal. As noted above, the Superintendent does not give such consent. If it is a substantive provision no such consent can be granted.

20Consequently, because the Request for Hearing was filed more than 15 days after the Applicant received the NOP, and because the Superintendent has not consented to waive the statutory deadline imposed by subsection 228.7(2) of the Act, I find that the Tribunal has no jurisdiction to proceed with a hearing on the merits.

V. ORDER

21The Tribunal orders that the Request for Hearing filed by the Applicant be dismissed without a hearing and that the Superintendent may proceed with his Notice of Proposal to revoke the service provide licence of JB Lifestyle Inc.

Dated at Toronto, this 15th day of March, 2016.

“Florence A. Holden” Florence A. Holden

Footnotes

Chandler v. Ontario (Superintendent Financial Services), 2014 ONFST 12; Carvalho v. Ontario (Superintendent Financial Services), 2015 ONFST 5; Scriver v. Ontario (Superintendent Financial Services), 2015 ONFST 4; Kimber. Ontario, 2015 ONFST 8; Raghubeer v. Ontario (Superintendent Financial Services), 2015 ONFST 12.
Lee v. Ontario (Superintendent Financial Services), 2015 ONFST 36.