Suthar v. Ontario (Superintendent Financial Services), 2018 ONFST 12

FINANCIAL SERVICES TRIBUNAL

Citation: Suthar v. Ontario (Superintendent Financial Services), 2018 ONFST 12
Decision No. I0761-2017-1
Date: 2018/06/04

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 to Impose an Administrative Monetary Penalty, dated August 17, 2017, issued by the Executive Director, Licensing and Market Conduct Division by delegated authority from the Superintendent of Financial Services;

AND IN THE MATTER OF a Hearing in accordance with subsection 441.3(5) of the Act.

B E T W E E N:

VARSHABEN SUTHAR

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

BEFORE:

Ian McSweeney, Chair of the Panel and Chair of the Tribunal

WRITTEN SUBMISSIONS:

For the Applicant – Varshaben Suthar

For the Superintendent of Financial Services – Kari Chan, Counsel

WRITTEN HEARING

REASONS FOR DECISION

I. INTRODUCTION

1The Applicant is currently licensed as a life insurance and accident and sickness insurance agent (hereinafter referred to as “insurance agent”) under the Act. This licence was issued February 14, 2017 and will expire on February 13, 2019. Ms. Suthar was previously licenced as an insurance agent from March 1, 2013 until February 28, 2015 when her licence expired. The Applicant was not licensed as an insurance agent from March 1, 2015 to February 13, 2017.

2On August 17, 2017, the Superintendent of Financial Services (“the Superintendent”) issued a Notice of Proposal (“NOP”) under sections 441.1, 441.2 and 441.3 of the Act to impose an administrative monetary penalty (“AMP”) of $1,650 on the Applicant for her alleged failure to comply with the requirements of the Act to have errors and omissions insurance (“E&O”) coverage at all times while licensed as an insurance agent; specifically, during the eleven month period April 2014 to February 2015.

3The Applicant’s Request for Hearing before this Tribunal in response to the NOP was filed with the Registrar on October 31, 2017. Pre-hearing teleconferences were held in this matter on February 1, 2018 and on March 28, 2018, as a result of which the parties settled the wording of the issues, completed document disclosure and production, filed an Agreed Statement of Facts (“ASF”) and an Agreed Book of Documents (“ABD”) with the Tribunal, and agreed to a written hearing in lieu of an oral hearing, to be held before me as a single member panel.

4The Registrar issued a Notice of Written Hearing dated March 29, 2018. The parties completed filing their submissions on May 11, 2018.

II. DISPOSITION

5The Tribunal orders the Superintendent to carry out his proposal to impose an administrative monetary penalty (“AMP”) of $1,650 as set out in the NOP for the reasons set out below.

III. ISSUES

6Based on the Pre-Hearing Teleconference Memorandum dated February 2, 2018 and the parties’ written submissions, the Tribunal must determine the following issues:

1. Did the Applicant fail to maintain E&O coverage for the eleven-month period April 2014 to February 2015, while she was licensed as an insurance agent under the Act, as required under section 13 of Ontario Regulation 347/04?

2. If the answer to Issue 1 is yes, is the imposition of the proposed AMP appropriate under section 441.3 of the Act and will such AMP serve either or both of the purposes set out in subsection 441.2(1) of the Act?

3. If the answer to Issue 2 is yes, what is the appropriate quantum of the AMP taking into consideration the five criteria prescribed by section 4 of Ontario Regulation 408/12?

IV. FACTS

7As this proceeding is being heard in the format of a written hearing, the only evidence adduced by the parties is contained in the ASF and the ABD as filed. I accept the facts contained in these filed documents which, in addition to the facts described above in paragraphs [1], [2] and [3], include the following:

1. On February 6, 2017, the Applicant submitted a late insurance agent licence renewal application to the Financial Services Commission of Ontario (“FSCO”). Because the renewal application was late, FSCO treated it as an initial application and granted the licence on the then current date of February 14, 2017.

2. The Applicant’s previous insurance agent licence issued on March 1, 2013 had expired on February 28, 2015 and she remained unlicensed from March 1, 2015 until her current licence was issued on February 14, 2017.

3. On February 9, 2017, in conjunction with the licence application review, a FSCO Licensing and Registration Specialist (“LRS”) contacted the Applicant requesting continuing education credit certificates, as well as proof of the Applicant’s E&O coverage for the period April 30, 2013 to February 28, 2015.

4. On February 10, 2017, the Applicant responded to the LRS inquiry and provided FSCO with two continuing education completion certificates with the course completion date of February 4, 2017 and a copy of her then current E&O certificate for the period February 2, 2017 to August 14, 2017.

5. In her February 10, 2017 email to FSCO, the Applicant stated that she was with [employed by] Primerica Life Insurance Company of Canada (“Primerica”) from April 30, 2013 to February 28, 2015, but could not locate her old E&O policy certificate relating to that period.

6. On February 14, 2017 when the Applicant’s current insurance agent licence was issued, the LRS advised the Applicant that if she could not provide proof of E&O coverage for the period April 30, 2013 to February 28, 2015, she would be subject to an AMP.

7. In her February 24, 2017 email to FSCO, the Applicant stated that her E&O was covered by Primerica’s E&O program for the period February 2013 to March 2014. The Applicant further advised that she was not active as an insurance agent during the months of April 2014 to February 2015 and did not pay for E&O coverage for that inactive period. As a result, the Applicant was without E&O coverage while licensed for the eleven-month period from April 2014 to February 2015.

8. The Applicant states (and I accept) that she did not conduct any insurance business during the period when she was without E&O coverage while licensed.

V. STATUTORY FRAMEWORK

8The statutory framework has been set out in a number of recent cases decided by the Tribunal. In particular, an in-depth summary of the statutory framework is set out in White¹, which is consistent with the framework set out in the Superintendent’s submissions and which I adopt.

9It is sufficient for the purposes of this hearing to note that, in combination, subsection 392.8(1)(n) of the Act and section 13 of Regulation 347/04 require all insurance agents to maintain E&O coverage in a form approved by the Superintendent in an amount of at least $1,000,000. There is no exception to this requirement under the Act or the regulations for licensed insurance agents who are not actively working as such or who do not earn any income from the insurance business. This E&O coverage obligation has existed since February 1, 1995 (see Ontario Regulation 790/94). It is the individual agent’s duty to ensure that E&O coverage is in place at all times while licensed.²

10Section 441.3(1) of the Act permits the Superintendent to impose an AMP on a licensed insurance agent, as may be prescribed if the Superintendent is satisfied that such agent has contravened the Act or a regulation.

11Section 441.2(1) of the Act states that a general AMP may be imposed under sections 441.3 or 441.4 to promote compliance with the requirements of the Act and/or to prevent a person from deriving, directly or indirectly, any economic benefit as a result of contravening or failing to comply with a requirement established under the Act.

12Therefore, provided the evidence establishes that the Applicant has breached the E&O requirement, and provided a monetary penalty would promote one of the objectives listed in section 441.2(1) of the Act, a general AMP would be an appropriate disciplinary measure.

13The Superintendent is authorized pursuant to subsection 3(2)(a) of Ontario Regulation 408/12 and Schedule 2, item 26 to impose an AMP in the amount of up to $50,000 for an individual who has failed to comply with the E&O requirement.

14Subsection 4(1) of Ontario Regulation 408/12 authorizes the Superintendent to determine the amount of a penalty imposed under section 441.3 of the Act for the purposes set out in section 441.2, subject to the $50,000 limit described above in paragraph [13].

15Subsection 4(2) of Ontario Regulation 408/12 states that when determining the amount of the AMP to be imposed, the Superintendent (and now the Tribunal, given the Applicant’s Request for Hearing), shall consider only the five criteria listed in that Regulation. These criteria are as follows:

1. The degree to which the contravention or failure was intentional, reckless or negligent.

2. The extent of the harm or potential harm to others resulting from the contravention or failure.

3. The extent to which the person tried to mitigate any loss or to take other remedial action.

4. The extent to which the person derived or reasonably might have expected to derive, directly or indirectly, any economic benefit from the contravention or failure.

5. Any other contraventions of or failures to comply with a requirement established under the Act or with any other financial services legislation of Ontario or of any jurisdiction during the preceding five years by the person.

16This Tribunal may order the Superintendent to carry out the proposal for an AMP with or without changes or substitute its decision for that of the Superintendent (section 441.3(6) of the Act).

VI. ANALYSIS

17The E&O requirement for licensed insurance agents is not a new obligation. It has existed for more than twenty-two years. Prior to introduction of the Superintendent’s AMP powers on January 1, 2013, the disciplinary measures available to the Superintendent under the Act were relatively limited. A life insurance agent who failed to comply with the E&O requirement could have his or her licence suspended or revoked, but there were no provisions in the Act allowing the Superintendent to impose an alternative penalty, such as a general AMP. Sections 441.1 – 441.6 of the Act were adopted effective January 1, 2013 to address this situation.

18The parties in their submissions have referred the Tribunal to fifteen other cases in which an insurance agent has faced a general AMP for contravening the E&O requirement.

19As previously noted, there are three issues to be decided in this case. With respect to these issues, the Tribunal finds as follows:

Issue 1: Did the Applicant fail to maintain E&O coverage for the months of April 2014, until February 2015, while she was licensed as an insurance agent under the Act, as required under section 13 of Ontario Regulation 347/04?

20It is an agreed fact that the Applicant was without E&O coverage for the eleven-month period from April 2014 to February 2015. During that time period, the Applicant held a licence as an insurance agent.

21The Tribunal finds that the answer to Issue 1 is yes.

Issue 2: If the answer to Issue 1 is yes, is the imposition of the proposed AMP appropriate under section 441.3 of the Act and will such penalty serve either or both of the purposes set out in subsection 441.2(1) of the Act?

22Under section 441.3(1) of the Act, if the Superintendent is satisfied that a person is contravening or not complying with or has contravened or failed to comply with any provision of the Act, the Superintendent may, by order, impose an AMP on the person in accordance with that section and the regulations.

23Based on the answer to Issue 1, it is clear that the Applicant contravened section 13 of Ontario Regulation 347/04 by not having E&O coverage while licensed.

24Subsection 441.2(1) of the Act states that an AMP may be imposed for either or both of the following two purposes:

1. to promote compliance with the requirements established under the Act; and

2. to prevent a person from deriving any economic benefit as a result of the contravention or failure to comply.

25In White³, and Sy v. Ontario (Superintendent Financial Services) (“Sy”)⁴, the Tribunal made a number of helpful general observations regarding the E&O requirement and the use of general AMPs under the Act. These comments were well summarized in paragraph 14 of Iqbal v. Ontario (Superintendent Financial Services) (“Iqbal”)⁵, as follows:

a. Life insurance agents have voluntarily chosen to engage in a business that requires a licence and which involves regulation. They agree in advance to adhere to strict standards of conduct, which they are presumed to be aware of, including the requirement to maintain E&O coverage at all times. See White, supra at paras. 22 and 28; Sy, supra at para. 16.

b. The purpose of the E&O requirement is to protect the public and enhance its confidence in the life insurance industry. In particular, the requirement ensures that a fund is available to compensate any member of the public who suffers financial loss due to the negligence or fraudulent activity of a life insurance agent. See White, supra at para. 22-23; Sy, supra at para. 16.

c. The E&O requirement attaches to the licence itself. All licensed life insurance agents must meet this requirement, whether or not they actually conduct any insurance business. See White, supra at para. 23; Sy, supra at para 17.

d. The imposition of a general AMP on a licensee who fails to comply with the E&O requirement meets the two purposes listed in section 441.2(1) of the Act. First, the penalty has a deterrent value, both for the licensee and for other life insurance agents. Second, the penalty prevents the licensee from making any premium savings. See White, supra at paras. 24-25; Sy, supra at para. 19.

e. There may be special circumstances in which it would be inappropriate to impose a general AMP for a contravention of the E&O requirement. See White, supra at para. 26; Sy, supra at para. 18.

26Applying these principles to the findings of facts made by the Tribunal above, and having regard to the determination under Issue 1, the Tribunal concludes that a general AMP is appropriate in this case for the following reasons:

1. The Applicant contravened the requirements of subsection 392.8(1)(n) of the Act and section 13 of Ontario Regulation 347/04, provisions that are “prescribed” for the purposes of imposing a general AMP, within the meaning of section 441.3(1) of the Act. The Applicant’s contravention occurred between April 2014 and February 2015.

2. While either of the purposes listed in subsection 441.2(1) of the Act would be sufficient to justify imposition of a penalty, I find that imposing a general AMP on the Applicant in the circumstances would advance both purposes as follows:

i. A penalty for non-compliance will promote compliance by demonstrating to the Applicant and other similarly situated licensed insurance agents that a failure to comply with the E&O requirement will result in a financial penalty. The Applicant was without E&O coverage from April 2014 to February 2015, a period of approximately eleven months. A penalty in this case sends an important message to the industry that the E&O requirement is not optional (an important message, given the purpose of E&O coverage), and that insurance agents are responsible for (and must voluntarily take on the responsibility of) making sure that they are in compliance. Like any regulator, the Superintendent depends on voluntary compliance from parties that he regulates. Without a high rate of voluntary compliance, regulation becomes either prohibitively expensive or less effective because limited resources have to be spent to achieve non-voluntary compliance. An insurance agent cannot sit back and await contact from FSCO to bring herself or himself into compliance. It is neither practical nor cost-effective for the Superintendent to achieve non-voluntary compliance in such a manner; and

ii. An AMP would prevent the Applicant from deriving an economic benefit as a result of her failure to comply with the E&O requirement. Though the Applicant may not have written any life insurance business during the period in which she lacked E&O coverage, she was nevertheless licensed and maintained the benefit of such licence for approximately eleven months while not complying with the requirement to maintain E&O and not paying fees relating to E&O coverage. Thus, an AMP would in fact eliminate the actual and potential financial advantage that the Applicant derived as a result of her noncompliance.

3. The parties agree that the Applicant did not conduct any business as an insurance agent during the period April 2014 to February 2015. This circumstance may be relevant in determining the amount of her penalty, as discussed below, but it has no bearing on whether the Applicant contravened section 13 of Ontario Regulation 347/04 such that the imposition of an AMP is appropriate. Section 13 creates no distinction on the basis of whether a licensee is working or not. If a person is a licensed insurance agent, they must have E&O coverage. As this Tribunal has previously stated⁶, there is a good reason for this since there is no practical way for a regulator to know on a day-to-day basis whether an insurance agent is, in fact, engaging in business activity. Accordingly, the requirement to maintain E&O coverage attaches to the licence itself and not to the activities of the licence holder. As long as a person is licensed to carry on business as a life insurance agent, this person’s failure to maintain liability insurance constitutes a contravention of section 13, and this is true whether or not the licensee knows about this particular feature of the regulatory system.

4. As reflected in the long line of cases decided by the Tribunal on this issue (which were included in the Book of Authorities provided to the Tribunal and the Applicant by the Superintendent), the Tribunal has consistently concluded that the imposition of a monetary penalty on a licensee who fails to comply with the E&O requirement meets both statutory objectives listed in subsection 441.2(1) of the Act.⁷ As stated in Beeksma⁸, “once it is established that a licensee has contravened the E&O requirement, this person faces a difficult challenge to convince the Tribunal that a general AMP is not an appropriate sanction.” In that case, the Tribunal went on to say that while there may be special circumstances where it would be inappropriate to impose a monetary penalty on a life insurance agent who has failed to maintain E&O coverage, the Tribunal would expect those circumstances to be rare and that “lack of knowledge is not a valid excuse”.⁹

5. Do special circumstances referred to in Beeksma exist here? I have concluded that they do not. The Applicant points to both Beeksma and Reid¹⁰ to support a reduction of her AMP. In Beeksma, the Tribunal found that two key facts supported Mr. Beeksma's testimony, which in turn, supported a reduced AMP amount from $1,800 to $1,000. The first key fact was that Mr. Beeksma knew that FSCO had received a copy of the notice of E&O cancellation sent by his insurer and the second is that, notwithstanding such notice, Mr. Beeksma did not receive any request from FSCO for more information. These facts are not present in the Applicant's case.

6. In Reid, the Tribunal reduced the amount of the AMP from $1,300 to $750, based on a finding that Mr. Reid had wrongly relied on repealed section 393(6) of the Act in believing that his licence had been suspended by FSCO following the termination of his employment by his insurer. Prior to repeal, section 393(6) had provided for the automatic suspension of an agent’s licence where an insurer had terminated that agent with notice to the Superintendent. These facts are also not present in the Applicant's case.

7. The Applicant has requested that the proposed AMP be “waived or reduced”. However, with respect to waiver, little or no admissible evidence has been submitted as to any special circumstances in which it would be inappropriate in this case to impose an AMP. In her submissions, the Applicant stated that she made an unintentional mistake and that she was unaware, both of the requirement to maintain E&O coverage in the circumstances of her suspension from active service with Primerica and of the consequences (potential penalty) of failing to meet that requirement. The Applicant states that the email correspondence with Primerica in 2014 led her to believe that her failure to pay a $250 Primerica E&O program fee would result in the suspension of her insurance agent licence and so did nothing as she was not active with Primerica and was content with disassociating herself from that insurer. I am not persuaded by this argument.

8. The Applicant’s coverage by the Primerica E&O program ceased at the end of March 2014. She remained a licensed insurance agent from April 2014 to February 2015. Her first thought on the subject of lapsed E&O coverage did not arise until she received a July 17, 2014 email from Primerica reminding her that her $250 fee for Primerica E&O program coverage was due for the period April 30, 2014 to April 30, 2015. At that point the Applicant was already delinquent in her E&O coverage compliance under the Act. That July 17, 2014 email may have referred to suspension of the Applicant’s licence as a consequence of not paying the E&O fee, but given the Applicant’s lack of proactive steps to renew up to that time, I do not think it reasonable for her to now claim she relied on the July 17^th email to conclude that her insurance licence would be suspended so E&O coverage was not required. Indeed, as supported by subsequent emails, I find that the Applicant’s conduct was decidedly unreasonable.

9. According to the October 21, 2014 email from Primerica to the Applicant, Primerica states "As a result of your continued failure to make the required "E&O" payment, we are now suspending your activities with Primerica Life Insurance Company of Canada ...". The email does not state that the Applicant's licence has or will be suspended. Only the Superintendent, not Primerica, has that authority.

10. The October 21, 2014 email from Primerica to the Applicant goes on to say "should you wish to return to active status with Primerica Life, please submit your payment by cheque or money [order]." This language highlights that the Applicant was merely suspended from activities with Primerica and could choose to return to active duty with Primerica by paying the required fee.

11. The Applicant, having first become a licensed insurance agent on March 1, 2013, should have informed herself of the obligations of her licence, including the fact that the licence is regulated by FSCO, not Primerica. The Applicant should also have fully informed herself of the law and the rules and regulations (and related changes to same) affecting her licence, as the law requires of all licensed agents. It goes without saying that insurance agents cannot pick and choose amongst their duties. They must comply with each requirement in order to preserve the privileges associated with their licence and avoid disciplinary action. Likewise, insurance agents cannot plead ignorance of the law when faced with allegations that they failed to fulfill their professional obligations. Selling insurance is a regulated activity. In this sector, anyone licensed to carry on business as an agent is presumed to know and accept the high standards they are expected to meet¹¹.

27For the forgoing reasons, the Tribunal finds that the answer to Issue 2 is yes.

Issue 3: If the answer to Issue 2 is yes, what is the appropriate quantum of penalty taking into consideration the five criteria prescribed by section 4 of Ontario Regulation 408/12?

28In determining the amount of the Applicant’s general AMP, the Tribunal must take into account only the five criteria listed in section 4(2) of Ontario Regulation 408/12. Ability to pay a penalty is not one of the listed criteria and therefore is not a relevant factor in determining the amount of an AMP.¹² Having reviewed the evidence, the Tribunal makes the following findings with respect to the application of these criteria to the circumstances of this case:

1. To what degree was the Applicant’s contravention of the Act and regulations intentional, reckless or negligent? But for the period March 1, 2015 to February 13, 2017, the Applicant has been licensed as an insurance agent since March 1 2013. She knew about the E&O requirement and previously complied with it. She was uninsured for approximately eleven months while remaining licenced, and she did not become aware of her non-compliance until February 2017 after being contacted by FSCO staff and requested to provide proof of E&O coverage during the eleven-month period. I have concluded that the Applicant’s conduct was negligent in this regard.

2. To what extent did the Applicant’s contravention of the Act and regulations cause harm or potential harm to others? There is no evidence that the Applicant carried on business as an insurance agent between April 2014 and February 2015. In fact, the evidence is that she did not. However, the Applicant remained licensed as an insurance agent during this period and could have sold insurance given her licensed status. As a result, potential harm to the public existed and neither FSCO nor the Superintendent had any practical way of supervising her day-to-day activities during that time. I find that the Applicant’s failure to maintain E&O coverage in these circumstances caused at the very least a potential harm.

3. To what extent did the Applicant try to mitigate or take any remedial action? There is no evidence that the Applicant took any remedial measures to bring herself within compliance of the E&O requirement between April 2014 and February 2015. As previously noted, despite the emails from Primerica in 2014, the Applicant only became aware of her contravention in February 2017 after being requested by FSCO to provide proof of coverage.

4. To what extent did the Applicant derive, or might reasonably have been expected to derive, any economic benefit from her contravention? The Applicant obtained a modest economic benefit by virtue of retaining a licence to carry on business as an insurance agent, while avoiding payment of E&O premiums for eleven months. In this regard the correspondence from Primerica shows that the cost of such coverage would have been $250. On the basis of the evidence, it is reasonable to infer that the Applicant obtained a benefit of about this amount during this period.

5. Has the Applicant committed any other contraventions during the previous five years? This criterion has no application in the circumstances of this case. There was no suggestion that the Applicant has, in the past, failed to comply with any other financial services legislation.

29The AMP proposed in this case is $1,650 in respect of an eleven-month gap in E&O coverage. That amount is not significantly different from the amounts accepted by this Tribunal in other similar cases in which an insurance agent failed to maintain E&O coverage while licensed, for example:

1. White¹³ - $1,300, no E&O coverage for 3.5 months

2. Sy¹⁴ - $1,500, no E&O coverage for 5.5 months

3. Iqbal¹⁵ - $1,500, no E&O coverage for 6.75 months

4. Barot¹⁶ - $1,500, no E&O coverage for 6 months

5. Lin¹⁷ - $1,600, no E&O coverage for 9 months

6. Hashim¹⁸ - $1,500, no E&O coverage for almost 7 months

7. Dennis¹⁹ - $1,700, no E&O coverage for approximately 14 months

8. Manigbas²⁰ - $2,000, no E&O coverage for approximately 14 months

9. Srivastava²¹ - $1,650, no E&O coverage for just over 12 months

10. Khan²² - $1,700, no E&O coverage for just over 15 months

30Based on the foregoing, the Tribunal finds that an AMP in the amount of $1,650 as proposed by the Superintendent is appropriate.

VII. ORDER

31The Tribunal orders the Superintendent to carry out his proposal against the Applicant as set out in the NOP dated August 17, 2017 to impose an AMP of $1,650.

Footnotes

1. 1White v. Ontario (Superintendent Financial Services) 2014 ONFST 9, paras 8-19.
2. 2Anyanwu v. Ontario (Superintendent Financial Services), 2015 ONFST 24, para 8.
3. 3White, supra note 1
4. 42014 ONFST 14
5. 52015 ONFST 6
6. 6Sy, supra note 4 at para 17.
7. 7Lam v. Ontario (Superintendent Financial Services), 2016 ONFST 23 at para. 11
8. 8Beeksma v. Ontario (Superintendent Financial Services), 2016 ONFST 3 at para. 24.
9. 9Ibid.
10. 10Reid v. Ontario (Superintendent Financial Services), 2018 ONFST 8
11. 11La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63 at para. 49; White, supra note 1 at para.22
12. 12Lin v. Ontario (Superintendent Financial Services), 2015 ONFST 17 at para 16.
13. 13White, supra note 1 at para 27.
14. 14Sy, supra note 4 at para 22.
15. 15Iqbal, supra note 5 at para 18.
16. 16Barot v. Ontario (Superintendent Financial Services), 2015 ONFST 14 at para 25.
17. 17Lin, supra note 12 at para 18.
18. 18Hashim v. Ontario (Superintendent Financial Services), 2015 ONFST 40 at para 28.
19. 19Dennis v. Ontario (Superintendent Financial Services), 2016 ONFST 18 at para 27.
20. 20Manigbas v. Ontario (Superintendent Financial Services), 2017 ONFST 8 at para 28.
21. 21Srivastava v. Ontario (Superintendent Financial Services), 2017 ONFST 11 at para 33.
22. 22Khan v. Ontario (Superintendent Financial Services), 2018 ONFST 3 at para 24.