FINANCIAL SERVICES TRIBUNAL

Citation: Rajaratnam v. Ontario (Superintendent Financial Services), 2018 ONFST 13 Decision No. IA763-2017-1 Date: 2018/06/05

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

AND IN THE MATTER OF the Notice of Proposal to Refuse Application dated November 6, 2017 issued by the Director of the Licensing Branch by delegated authority from the Superintendent of Financial Services;

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

B E T W E E N:

KRISHAN RAJARATNAM

APPLICANT

and

SUPERINTENDENT OF FINANCIAL SERVICES

RESPONDENT

BEFORE:

Christopher Portner Chair of the Panel and Member of the Tribunal

WRITTEN SUBMISSIONS:

For the Applicant – No written submissions received

For the Superintendent of Financial Services – Michael Spagnolo

REASONS FOR DECISION

I. INTRODUCTION

1On November 6, 2017, the Superintendent of Financial Services (the “Superintendent”) issued a Notice of Proposal to Refuse Application (“NOP”) in respect of an application by Krishan Rajaratnam, the Applicant in this matter, pursuant to sections 392.4 and 407.1 of the Act.

2On November 27, 2017, the Applicant filed a Request for Hearing dated November 17, 2017 in respect of the NOP.

II. Decision

3For the reasons set out below, the Tribunal dismisses this proceeding without a hearing.

III. Facts

4On January 29, 2018, a pre-hearing teleconference was held in connection with this proceeding. The Superintendent was represented by counsel. The Applicant participated in person and confirmed his intention to represent himself.

5On February 2, 2018, Mr. Spagnolo, counsel for the Superintendent, disclosed all relevant documentation in the Superintendent’s possession to the Applicant.

6On February 8, 2018, I issued a Pre-Hearing Conference Memorandum confirming three alternate dates for the hearing and the dates on which (i) disclosure of documentation would take place; (ii) an Agreed Statement of Facts and an Agreed Book of Documents would be finalized and filed; (iii) written submissions and/or books of authorities would be filed; and (iv) witness statements would be provided by the parties.

7On February 8, 2018, the Registrar wrote to the parties and advised them that the hearing would take place on May 2, 2018.

8On February 8, 2018, following receipt of the Pre-Hearing Conference Memorandum, Sam Perlmutter, an articling student working in the Financial Services Commission of Ontario Branch of the Ministry of the Attorney General, Civil Law Division, contacted the Applicant to propose that the timetable set out in the Pre-Hearing Conference Memorandum be modified. On February 13, 2018, the Applicant acknowledged receipt of the revised timetable following a telephone conversation with Mr. Spagnolo.

9On February 22, 2018, Mr. Spagnolo sent the Applicant a draft Agreed Statement of Facts and a draft index for a Book of Documents and requested the Applicant’s comments. The Applicant failed to provide his comments by March 2, 2018 as required by the revised timetable and failed to do so again after further requests by Mr. Spagnolo on March 8, 2018 and by Mr. Perlmutter on March 19, 2018.

10On March 30, 2018, Mr. Spagnolo served the Superintendent’s written submissions and book of authorities on the Applicant in accordance with the agreed upon timetable. The Applicant failed to submit his reply submissions by April 13, 2018, as required.

11On April 16, 2018, Mr. Perlmutter advised the Applicant that, in the absence of a response by April 18, 2018, the Superintendent would request that this proceeding be dismissed for delay. The Applicant failed to respond.

12On April 23, 2018, Mr. Spagnolo wrote to the Tribunal and the Applicant summarizing the facts described in paragraphs [6] to [11] above and the Applicant’s failure to take any steps to further the proceeding since February 13, 2018 when the revised timetable was agreed upon by the Applicant. Given the foregoing, Mr. Spagnolo also requested that the hearing be adjourned sine die which, under the circumstances, I agreed to do.

13On April 23, 2018, I signed a Notice of Intention to Dismiss this proceeding without a hearing unless the steps set out in the Notice of Intention to Dismiss were taken within 30 days or reasonable cause was shown by the Applicant for his failure to do so.

14On May 29, 2018, Mr. Perlmutter swore an Affidavit in which he confirmed the facts set out in paragraphs [6] to [12] above and that the last contact by the Applicant with counsel for the Superintendent took place on March 2, 2018 when the Applicant requested confirmation of the revised timetable.

IV. ANALYSIS

15Rule 34.01 of the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (the “Rules”) states that:

Where a party who has initiated a proceeding has taken no step in the proceeding for an undue period, the Tribunal may give notice of intention to dismiss the proceeding without a hearing unless such steps as are directed by the Tribunal are taken within 30 days of the notice or reasonable cause is shown for failure to take those steps. The notice will be given to all parties to the proceeding.

16Rule 34.02 of the Rules states that:

All parties who have been given notice under Rule 34.01 shall have the right to make written submissions to the Tribunal with respect to the dismissal of the proceeding within 30 days of the giving of the notice.

17Rule 34.03 of the Rules states that:

After considering such submissions, if any, the Tribunal may dismiss the proceeding without a hearing.

18Given the facts of the matter summarized above and confirmed by the Affidavit of Mr. Perlmutter, which I accept in its entirety, I find that the Applicant, having initiated this proceeding, has:

a. Not taken any step in the proceeding for an undue period of time;

b. Failed to take the steps directed by the Tribunal in the Notice of Intention to Dismiss; and

c. Having been given proper notice, has failed to make written submissions to the Tribunal providing reasonable cause for his failure to take such steps.

V. ORDER

19In light of the foregoing analysis, the Tribunal hereby orders that, in accordance with Rule 34.03 of the Rules, the proceeding initiated by the Applicant’s Request for Hearing dated November 17, 2017 be dismissed without a hearing.