Clarke v. Ontario (Superintendent Financial Services), 2017 ONFST 1

Citation: Clarke v. Ontario (Superintendent Financial Services), 2017 ONFST 1 Decision No. M0708-2016-1 Date: 2017/02/22

IN THE MATTER OF the Mortgage Brokerages, Lenders and Administrators Act 2006, S.O. 2006, c. 29, in particular sections 16 and 21

AND IN THE MATTER OF the Notice of Proposal to Refuse Renewal dated October 3, 2016 against Godefrey Clarke, issued by the Director, Licensing Branch by delegated authority from the Superintendent of Financial Services (“Superintendent”);

AND IN THE MATTER OF a Hearing in accordance with subsection 21(3) of the Mortgage Brokerages, Lenders and Administrators Act 2006, S.O. 2006, c. 29.

B E T W E E N:

and

BEFORE:

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

WRITTEN SUBMISSIONS:

For the Applicant – Godefrey Clarke

For the Superintendent of Financial Services – none filed

REASONS FOR DECISION

1The Superintendent issued a Notice of Proposal to Refuse Renewal application of the mortgage broker licence of Godefrey Clarke (the “Applicant”) alleging the Mr. Clarke’s past conduct indicated that he would not deal or trade in mortgages in accordance with the law and with honesty and integrity. The Applicant requested a hearing and a pre-hearing conference was scheduled by the Acting Registrar for January 4, 2017. A notice of the Pre-Hearing Conference dated December 9, 2016 was served on Mr. Clarke by registered mail, regular mail and email to the address provided by Mr. Clarke in his Request for Hearing.

2On January 4, 2017, the Acting Registrar, in the presence of the Chair, called Mr. Clarke at the phone number he had provided to the Tribunal and was connected with an answering machine. As the voicemail box was full he could not leave a message. The Assistant Registrar then attempted to contact the Applicant at the phone number he had indicated on his Request for Hearing, but again was directed to voicemail, where he left a message indicating that the Tribunal was trying to contact him for the call and to contact the Tribunal. At least a third attempt to contact the Applicant by phone was made in the presence of the Chair and again he was directed to voicemail.

3Mr. Clarke did not contract the Acting Registrar prior to or during the pre-hearing conference call and the pre-hearing conference call commenced by teleconference. Superintendent’s Counsel was present, as was the Acting Registrar, Acting Assistant Registrar and the Chair of the panel in this matter. The matter was adjourned given the failure of the Applicant to attend.

4Pursuant to Rule 34.01 and 35.01 of the Rules of Practice and Procedure for Proceedings Before the Financial Services Tribunal (the “Rules”), the Tribunal, on its own motion, issued a Notice of Intention to Dismiss dated January 4, 2017. The Notice of Intention to Dismiss advised that “it proposed to dismiss this proceeding without a hearing if reasonable cause is not shown within 30 days of the giving of this notice for Godefrey Clarke’s failure to appear at the pre-hearing teleconference on January 4, 2017 at 11:00 a.m. for which Notice was duly given”. The Notice of Intention to Dismiss further gave Mr. Clarke the right to make reasonable submission for failure to appear, after consideration of which the Tribunal may dismiss the proceeding without further hearing or may order it to continue, with or without conditions.

5The Acting Registrar advised that the Notice of Intention to Dismiss was sent to the Applicant by email, registered mail and regular mail to the address provided by the Applicant on his Request for Hearing. The Applicant advised by email on January 5, 2017 that “On January 4th I was awaiting a conference call from your office regarding a pre trial, unfortunately I did not receive such call. Please reschedule for a later date.” The Tribunal does not accept this submission as providing reasonable explanation of the Applicant’s failure to attend. The panel Chair was witness to at least two attempts to contact Mr. Clarke at the phone numbers he provided.

6At the request of the Chair, the Acting Registrar then emailed Mr. Clarke on January 12, 2017, requesting compliance with the Notice of Intention to Dismiss, namely the requested explanation and a primary phone number where he could be contacted. No further explanation was received nor contact received from the Applicant.

I. ORDER

7As Mr. Clarke did not provide a reasonable cause for his failure to participate on January 4, 2017 in accordance with Rule 34.02 of the Rules, the Tribunal orders that the proceeding commended by the Applicant by a Request for Hearing received October 21, 2016 is dismissed without further notice.

Dated at Toronto, this 22nd day of February, 2017.

“Florence A. Holden” Florence A. Holden