Citation: Anthony v. Ontario (Superintendent Financial Services), 2018 ONFST 10 Decision No. IA753-2017-1 Date: 2018/05/23

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended (the “Act”), in particular sections 392.4 and 407.1;

AND IN THE MATTER OF the Notice of Proposal to Refuse Application dated August 25, 2017 against Edward Szymkiewicz Anthony, issued by the Director, Licensing Branch by delegated authority from the Superintendent of Financial Services;

AND IN THE MATTER OF a Request for Hearing in accordance with section 407.1(3) of the Act.

and

BEFORE:

Bethune Whiston Chair of the Panel and Vice-Chair of the Tribunal

For the Applicant – no submissions received

For the Superintendent of Financial Services – Brendan Forbes, Counsel

1On September 14, 2015, Mr. Anthony submitted an application for a Life and Accident & Sickness Insurance Agent licence. Mr. Anthony had previously been licensed with the Financial Services Commission of Ontario (“FSCO”) under licence number 06093361, but his licence had lapsed. For various reasons, FSCO commenced an investigation into Mr. Anthony. On August 25, 2017, the Superintendent issued a Notice of Proposal to Refuse Application (“NOP”) in respect of Mr. Anthony’s application for a licence as an insurance agent under the Act and on September 14, 2017, Mr. Anthony filed a Request for Hearing with the Registrar’s office.

2The parties participated in a Pre-Hearing Teleconference held on October 30, 2017. Orders were made by the Tribunal, on October 30, 2017, and subsequently on March 13, 2018, that were not complied with by the Applicant.

3On April 4, 2018, at the request of the Superintendent, the Tribunal issued a Notice of Intention to Dismiss. In the Notice, the Applicant was advised the Tribunal was proposing to dismiss the proceeding without a hearing unless certain steps were taken by the Applicant within 30 days of the giving of the Notice (namely, May 4, 2018).

4The Applicant was advised as follows: (a) he had the right to provide reasonable cause for failure to take the above-noted steps, (b) he had the right to make written submissions to the Tribunal on the issue of whether the Tribunal should dismiss the proceeding without a hearing, and (c) after considering any submissions received, the Tribunal could dismiss the proceeding without further hearing.

5The Applicant did not take the required steps set out in the April 4, 2018 Notice of Intention to Dismiss. Written submissions of counsel for the Superintendent were received by the Tribunal on May 3, 2018. No written submissions were received from the Applicant on or prior to May 4, 2018.

6For the following reasons, I order that the Applicant’s Request for Hearing is dismissed.

II. FACTS AND ANALYSIS

7Various steps were taken by the Financial Services Tribunal (“Tribunal”) and the parties in furtherance of preparing for a hearing in this matter. The following summary of facts is accepted by the Tribunal for purposes of this proceeding. It is based on the Tribunal’s direct knowledge and the sworn affidavit dated April 18, 2018, of Dave Deonarain, an Articling Student with the Ministry of the Attorney General Civil Law Division, Financial Services Commission of Ontario Branch.

a. On October 30, 2017, a Pre-Hearing Conference in this matter was held. The Chair of the Pre-Hearing Conference, by order, imposed obligations on each party. A Pre-Hearing Conference Memorandum dated November 9, 2017 (the “Memorandum”), documenting the obligations of the parties, was issued by the Tribunal.

b. Superintendent’s counsel met the obligations and corresponding deadlines imposed on the Superintendent, as ordered by the Tribunal.

c. The obligations and corresponding deadlines placed on the Applicant included providing the following information and documents to the Superintendent:

i. Documentary disclosure by November 30, 2017,

ii. Input on an Agreed Statement of Facts (“ASF”) and an Agreed Book of Documents (“ABD”) by January 26, 2018,

iii. Witness statements by March 9, 2018.

d. Despite regular communication from Superintendent’s counsel to the Applicant, the Applicant did not meet the deadlines set out in the Tribunal’s October 30, 2017 Order.

e. Following a request for intervention from Superintendent’s counsel, the Tribunal reserved the Tribunal hearing room for the Applicant and Respondent to meet to discuss a draft ASF and ABD. This meeting occurred on March 5, 2018.

f. On March 5, 2018, the Applicant acknowledged that he had received correspondence from counsel for the Superintendent with respect to the obligations set out in the Tribunal’s October 30, 2017 Order, but had elected not to respond. At that time, the Applicant indicated he was considering obtaining legal counsel.

g. On March 13, 2018, the Tribunal issued a second Order requiring the Applicant to provide the Superintendent with disclosure of any documents and witness statements for the hearing, and to inform the Superintendent and the Tribunal if the Applicant had obtained legal counsel. The Applicant was to comply with this Order by March 29, 2018. He was advised in the Order that if he failed to meet the deadline, the Chair would entertain a motion by the Superintendent for dismissal under Rule 33 of the Tribunal’s Rules of Practice and Procedure (the “Rules”).

h. The Applicant was further advised in the Order, that parties are expected to comply with any orders made by the Tribunal. In accordance with Rule 1.03 of the Tribunal’s Rules, orders made by the Tribunal are intended to help produce the quickest, most just and least expensive determination of the issues before the Tribunal.

i. The Applicant did not correspond with the Tribunal or comply with the Tribunal’s March 13, 2018 Order.

j. Mr. Forbes then sent a letter dated April 3, 2018, to the Tribunal and to Mr. Anthony, requesting that the Tribunal entertain the Superintendent’s request for dismissal for delay.

k. On April 4, 2018, the Tribunal issued a Notice of Intention to Dismiss. In the Notice, the applicant was advised the Tribunal was proposing to dismiss the proceeding without a hearing unless the following steps were taken by the Applicant within 30 days of the giving of the Notice:

i. Mr. Anthony must advise if he had retained counsel and, if so, provide the name and contact details for his counsel;

ii. Mr. Anthony must provide disclosure to the Superintendent; and

iii. Mr. Anthony must advise if he intends to call witnesses and, if so, provide the names and statements of those witnesses to the Superintendent.

l. The Applicant was further advised as follows: (i) he had the right to provide reasonable cause for failure to take the above-noted steps, (ii) he had the right to make written submissions to the Tribunal on the issue of whether the Tribunal should dismiss the proceeding without a hearing, and (iii) after considering any submissions received, the Tribunal could dismiss the proceeding without further hearing.

8The Applicant did not take the required steps set out in the April 4, 2018 Notice of Intention to Dismiss. Written submissions of counsel for the Superintendent were received by the Tribunal on May 3, 2018. No written submissions were received from the Applicant prior to the imposed deadline, nor did the Tribunal receive any oral communications from the Applicant in response to the Notice of Intention to Dismiss.

9Rule 33.01 of the Tribunal’s Rules provides the Tribunal with the authority to dismiss proceedings for delay where a party has taken no step in a proceeding for an undue period. The Tribunal has previously dismissed a matter for delay under Rule 33.01 of the Rules, where an individual has shown intent not to take a step required to be taken in a proceeding (refer to Lexxco Investment Services Corporation and Lewis v. Ontario (Superintendent Financial Services), 2017 ONFST 6).

III. ORDER

10For the foregoing reasons, the Tribunal orders the Applicant’s Request for Hearing is dismissed. The Superintendent is ordered to carry out the Notice of Proposal issued to Mr. Anthony, namely, we order him to refuse to issue an insurance agent licence to Mr. Anthony.

Dated at Toronto, this 23^rd^ day of May, 2018.

“Bethune Whiston” Bethune Whiston