FINANCIAL SERVICES TRIBUNAL
IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended (the “Act”), in particular sections 392.5, 407.1, 441.1, 441.2 and 441.3;
AND IN THE MATTER OF a Notice of Proposal to Revoke Licence and Impose an Administrative Penalty, dated February 28, 2018, issued by the Executive Director, Licensing & Market Conduct Division by delegated authority from the Superintendent of Financial Services;
AND IN THE MATTER OF a Hearing in accordance with subsections 407.1(3) and 441.3(5) of the Act.
B E T W E E N:
JYOTI PRAKASH MAHARANA
APPLICANT
and
SUPERINTENDENT OF FINANCIAL SERVICES
RESPONDENT
BEFORE:
Julie Maciura Chair of the Panel and Member of the Tribunal
WRITTEN SUBMISSIONS:
For the Applicant – Mr. Howard C. Cohen
For the Superintendent of Financial Services – Michael Scott
REASONS FOR DECISION
I. INTRODUCTION
1The Applicant in this matter is an insurance agent licensed under the Act. By a Notice of Proposal dated February 28, 2018, Anatol Monid, Executive Director, Licensing & Market Conduct Division by delegated authority from the Superintendent of Financial Services (the “Superintendent”) proposed to revoke the licence of the Applicant and proposed to impose an administrative penalty of $1,750.00 on the Applicant on the grounds that the Applicant had not completed the 30 required hours of continuing education (“CE”) and that he had provided false information on his application to renew his licence.
2The proposal was sent to the Applicant on March 22, 2018 by registered and regular mail and was received by the Applicant on March 29, 2018. The deadline for requesting a hearing with respect to the proposal is 15 days after notice is given.
3The Applicant filed a Form 1 – Request for Hearing with the Financial Services Tribunal (the “Tribunal”) on April 18, 2018, which is five days after the 15-day deadline.
4On April 26, 2018, counsel for the Superintendent requested that the Tribunal issue a Notice of Intention to Dismiss without a hearing on the basis that the Request for Hearing was filed after the deadline for doing so had passed.
5A Notice of Intention to Dismiss was issued by the Tribunal on April 30, 2018, and the parties were given 30 days to make written submissions with respect to the Notice of Intention to Dismiss. (The Applicant later requested and was given additional time for making submissions.)
6The Superintendent takes the position that the Tribunal does not have jurisdiction to hear this matter because the Applicant filed his Request for Hearing outside of the 15-day deadline in subsections 407.1(3) and 441.3(5) of the Act. The Superintendent further takes the position that the statute does not confer any authority on the Tribunal to extend the 15-day time limit for filing a Request for Hearing. The Superintendent takes the position that while subsection 4(1) of the Statutory Powers Procedure Act allows a tribunal to waive procedural requirements with the consent of the parties, the Superintendent does not consent in this case and so it is not necessary to determine whether subsections 407.1(3) and 441.3(5) are substantive requirements or procedural requirements.
7The Superintendent provided material (filed May 30, 2018) in support of the request to dismiss including an affidavit of Virginia DiLauro, a Legal Secretary in the Legal Services Branch of the Financial Services Commission of Ontario (“FSCO”), as well as a Book of Authorities in support of the Superintendent’s position.
8The Applicant filed written submissions and supplementary material (which included medical information) to the Tribunal, received May 31, 2018 and June 4, 2018 respectively, with respect to the Notice of Intention to Dismiss.
II. DECISION
9For the reasons set out below, the Tribunal dismisses the matter without a hearing.
III. facts
10In his written submissions the Applicant concedes that he filed his Request for Hearing outside of the 15-day deadline in the Act, but says that he believed the 15-day deadline was counted in business days as opposed to calendar days.
11Based on the material provided by the parties, I make the following findings of fact:
a. The Notice of Proposal was delivered to the Applicant on March 29, 2018.
b. The deadline for filing a Request for Hearing is 15 days after notice is given.
c. The Applicant filed his Request for Hearing on April 18, 2018, which is five days after the deadline.
IV. statutory framework
12Subsection 392.5(1) of the Act provides that the Superintendent may revoke a licence where there has been a failure to comply with the Act or the Regulations. If the Superintendent proposes to revoke a licence without consent, the Superintendent shall give notice in accordance with subsection 407.1(2) of the Act.
13Subsection 407.1(3) of the Act states that a person may request a hearing before the Tribunal in writing within 15 days after the notice is given to the person.
14Subsection 441.3(1) of the Act states that the Superintendent may impose, by order, an administrative penalty if the Superintendent is satisfied that a person contravened the Act or regulations. If the Superintendent proposes to impose an administrative penalty under section 441.3, the Superintendent must give notice in accordance with subsection 441.3(2).
15Subsection 441.3(5) of the Act states that a person may request a hearing before the Tribunal in writing within 15 days after the notice is given to the person.
16Subsection 4(1) of the Statutory Powers Procedure Act (“SPPA”) allows a tribunal to waive procedural requirements with the consent of the parties.
17Subsection 89(3) of the Legislation Act provides that: “A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.”
18Rule 15.02 of the Rules of Practice and Procedure before the Tribunal provides that “A Request for Hearing shall be in writing. It shall be filed within the time period set out in the statute establishing the right to a hearing, and shall be served by the requester on the Superintendent and all other persons upon whom the Tribunal directs service.”
V. analysis
19It is not necessary in this case to decide whether the deadlines imposed by subsections 407.1(3) and 441.3(5) of the Act are substantive or procedural since there has been no waiver by the Superintendent of the statutory time limit to file a Request for Hearing. As has been stated in previous decisions of this Tribunal, section 4.1 of the SPPA does not establish an independent authority for the Tribunal to waive a time limit; both parties must consent even if the deadlines in question are seen to be procedural requirements.
20It is unfortunate that the Applicant believed that the deadline referred to business days, but nowhere in the legislation or the Notice of Proposal is there a reference to any but “days”. As well, the Notice of Proposal clearly says in boldface type four times that the deadline for filing a Request for Hearing is “15 days” after the notice is given.
21The medical information provided by the Applicant, much of which is from 2015, is relevant (based on the Applicant’s own submissions) to the underlying failure to complete CE credits and to properly fill out the application for renewal of his licence. The Applicant does not suggest that the medical information is relevant to the failure to file his Request for Hearing within the deadline. The Applicant asserts that he failed to file his Request for Hearing on time because he thought the deadline was counted in business days as opposed to calendar days. However, even if the medical information was relevant to the failure to file the Request for Hearing on time, the Applicant would need the Superintendent’s consent to waive the deadline, which he does not have.
22Persons who receive a Notice of Proposal from the Superintendent have a responsibility to inform themselves of the relevant statutory provisions that may affect their rights. In this case the Superintendent does not consent to waive the statutory time limit and so it is not necessary to decide whether the time limits in question are substantive or procedural requirements. In the absence of the Superintendent’s consent to waive the statutory requirement, the Tribunal has no jurisdiction to proceed with a hearing on the merits.
VI. ORDER
23Pursuant to its authority under Rule 33 (this was Rule 32 at the time the Notice of Intention to Dismiss was issued), the Tribunal orders that the Request for Hearing filed by the Applicant is dismissed without a hearing.
Dated at Toronto, this 19th day of June, 2018.
“Julie Maciura” Julie Maciura