Citation: Elury Health Services Inc. v. Ontario (Superintendent Financial Services), 2016 ONFST 8 Decision No. SP658-2015-1 Date: 2016/03/17

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 Elury Health Services Inc. dated September 16, 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 Insurance Act, R.S.O. 1990, c. I.8.

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

1The Superintendent of Financial Services (“Superintendent”) issued a Notice of Proposal (“NOP”) on or about September 30, 2015 to revoke the service provider licence of Elury Health Services 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 fee as 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.

2The Applicant failed to attend the pre-hearing conference on January 11, 2016. On January 11, 2016, the Tribunal issued a Notice of Intention to Dismiss the proceeding without a hearing pursuant to Rule 35.01 of the Rules if reasonable cause is not shown for failure to appear. The Applicant was accorded the right to make written submissions to the Tribunal by February 12, 2016 on the issue of reasonable cause for her failure to appear. After considering that submission, under Rule 35.02 of the Rules, the Tribunal may dismiss the proceeding without further hearing or may order the proceeding to continue, with or without conditions.

3The Applicant’s Principal Representative, Jeanette Boltyansky, filed a response with the Tribunal on February 10, 2016. The Superintendent did not file any submissions beyond the pre-hearing submissions previously filed on January 5, 2016.

4For the reasons outlined below, the Applicant’s Request for Hearing is granted subject to the conditions outlined below.

II. BACKGROUND and facts

5As noted in a prior decision of this Tribunal in a related matter, JB Lifestyle Inc. v. Ontario (Superintendent Financial Services), 2016 ONFST 7, under 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.

6The Tribunal also noted that applications for a service provider licence 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.

7In the absence of evidence to the contrary, we accept the Superintendent’s contention that Jeanette Boltyansky is the Principal Representative of the Applicant. Ms. Boltyansky does not dispute this contention and has made the filings on behalf of the Applicant in this case.

8Although the parties have not yet filed an agreed statement of facts, Ms. Boltyansky’s Request for Hearing and submission on the Notice of Intention to Dismiss do not on their face dispute the Applicant’s failure to file the AIR and related fee on time or to respond to FSCO’s enquires as outlined in the NOP. The Applicant’s only explanation was that her failure to file and respond to FSCO communications was due to “personal complications which removed (her) from the day to day of the business”. Personal reasons were also alluded to in the Request for Hearing with sparse information provided. At this stage it appears that the Applicant did commit the alleged offence but I lack sufficient evident to suggest that mitigating factors may exist.

9Ms. Boltyansky did not provide any explanation for her failure to attend the pre-hearing conference. She did not allege that she failed to receive notice of the PHC conference. Although the Registrar, in my presence made repeated attempts to contact her on that date at the phone numbers and email address provided to FSCO and the Tribunal, the Tribunal was not able to contact her within a reasonable time frame. No reasonable cause for her failure to appear having been given to me, my choice is to dismiss the proceedings or to continue them with or without conditions.

10I am mindful that the Applicant can continue its business, but without the advantage of being licensed and able to bill insurers for listed services directly.

11However as the Applicant is part of a newly licensed regime, I am prepared to grant some limited leeway in this matter and permit the proceeding to continue to a hearing, after another pre-hearing conference call is scheduled by the Tribunal, with the condition that should the Applicant, through its Principal Representative Ms. Boltyansky or its legal counsel, fail to appear at a scheduled pre-hearing conference or scheduled hearing, or fail to comply with any of the orders of the Tribunal in respect of the hearing process, the Tribunal may proceed in the absence of the Applicant or dismiss the proceeding without further hearing and without further notice under Rule 35.01 of the Rules.

III. ORDER

12I order that this matter proceed and that the Registrar contact the parties to schedule a pre-hearing conference as soon as practicable. Should the Applicant, through its Principal Representative Ms. Boltyansky or its legal counsel, fail to appear at a scheduled pre-hearing conference or scheduled hearing, or fail to comply with the orders of the Tribunal in respect of the hearing process, or fails to respond to communication from the Tribunal staff, the Tribunal may proceed in the absence of that party or dismiss the proceeding without further hearing and without further notice under Rule 35.01 of the Rules.

Dated at Toronto, this 17th day of March, 2016.

“Florence A. Holden” Florence A. Holden