Citation: Spiegel v. Ontario (Superintendent Financial Services), 2018 ONFST 6 Decision No. IA728-2017-3 Date: 2018/04/12

IN THE MATTER OF the Insurance Act, R.S.O. 1990, c. I.8, as amended (the "Act"), in particular sections 392.4(4) and 407.1;

AND IN THE MATTER OF the Notice of Proposal to Issue a Licence with Conditions, dated March 10, 2017 against Roland Spiegel, issued by the Director, 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.

and

BEFORE:

Audrey Mak Chair of the Panel and Member of the Tribunal

Ian McSweeney Member of the Panel and Chair of the Tribunal

Paul Farley Member of the Panel and Member of the Tribunal

For the Applicant – Self-represented

For the Superintendent of Financial Services – Deborah McPhail

DATE HEARD:

March 26, 2018

1Mr. Spiegel (the "Applicant") is a paralegal regulated by the Law Society of Upper Canada (now the Law Society of Ontario, and hereinafter called the "Law Society").

2On December 11, 2014, the Law Society issued an Amended Notice of Application alleging that the Applicant engaged in professional misconduct and conduct unbecoming of a licensed paralegal.

3On July 20, 2016, the Applicant applied to the Superintendent of Financial Services (the "Superintendent") for an insurance agent licence.

4On March 10, 2017, the Superintendent issued a Notice of Proposal to Issue Licence with Conditions ("NOP") to the Applicant. Two conditions were proposed in the NOP. The first condition requires the Applicant to arrange for enhanced supervision of his life insurance activities for two years. The second condition requires the Applicant to provide a copy of the Law Society Tribunal's decision in respect of the allegations against the Applicant (the "Law Society Decision") to the Superintendent within 24 hours of having notice of it.

5The Applicant filed a Request for Hearing pursuant to subsection 407.1(3) of the Act. A six day hearing before this Tribunal has been scheduled to take place on May 24, 25, 28, 29, 31 and June 1, 2018.

6The Law Society Decision was issued on September 15, 2017. The Law Society Tribunal concluded that the Applicant engaged in professional misconduct contrary to specific provisions of the Paralegal Rules of Conduct and the Law Society Act.

7The Applicant is appealing the Law Society Decision.

8The Superintendent brought a motion for an order to adjourn the hearing dates in this proceeding sine die until the proceeding against the Applicant before the Law Society, and any subsequent appellate or review proceedings that flow from it (collectively referred to as the "Law Society Proceeding"), have been finalized.

9In a decision dated January 17, 2018 (the "January 17, 2018 Decision"), the Tribunal denied the Superintendent's motion and ordered that the hearing in this matter proceed on the dates set out in paragraph [5] above.¹

10At the pre-hearing teleconference held before the Chair on January 30, 2018, the Applicant indicated that he would like to bring a motion for an order requiring the Superintendent to provide the Applicant with particulars of the evidence on which the Superintendent intends to rely (for purposes of this proceeding), to support the NOP.

11Both parties made written submissions in respect of the Applicant's motion for particulars. (It should be noted that in the Applicant's "Reply Submissions in Respect to Motion for Particulars" dated February 26, 2018 (the "Reply Submissions"), the Applicant also requested a number of additional orders from the Tribunal including an order for costs.) The parties made oral submissions to the Panel on March 26, 2018. At the suggestion of the Chair, the parties agreed that the Applicant would deal with his submissions and Reply Submissions together in advance of the Superintendent's counsel presenting her submissions.

II. Decision on the Motion

12In determining whether to grant the orders requested by the Applicant, the Tribunal considered its jurisdiction and powers under the Act, the Statutory Powers Procedure Act², as well as the Financial Services Commission of Ontario Act, 1997³ and the Rules of Practice and Procedure for Proceedings Before the Financial Services Tribunal.

13After carefully considering the written and oral submissions of both the Applicant and the Superintendent, the Tribunal has decided that it will not grant the orders requested by the Applicant for the reasons set out below.

III. Analysis and Disposition of Applicant's MOTION requests

A. Request for Particulars

14The Applicant requests that the Tribunal order the Superintendent to disclose and produce to the Applicant forthwith, any and all particulars and supporting evidence of:

(a) the Law Society Proceeding that the Superintendent intends to rely on at the Tribunal hearing and the grounds for the Superintendent's NOP;

(b) the Superintendent's grounds for any allegations that the Applicant is not of "good character and reputation" as required under subsection 4(1) of O. Reg. 347/04 of the Act in order to receive a licence without conditions.

15The Applicant submits that procedural fairness and natural justice dictate an obligation of the Superintendent to be fully transparent and to provide the particulars requested. He also submits that he will be highly prejudiced without these particulars.

16The Superintendent argues that the Applicant's motion for particulars should be dismissed for two reasons:

(a) the Tribunal has already adjudicated the issue in previous motions (i.e., issue estoppel);

(b) the Superintendent does not rely on any particulars other than the Law Society's general allegations, and the subsequent Law Society Decision as the basis for the NOP, to support the Superintendent's case.

17The Tribunal finds the second reason submitted by the Superintendent compelling, and on that basis, the Tribunal agrees with the Superintendent that the request for particulars should be dismissed. (The Tribunal acknowledges the Superintendent's alternative argument of "issue estoppel", but does not think it is necessary to specifically address it in order to come to a decision.)

18The Superintendent's general position is that the Applicant is not suitable to be issued an unconditional insurance agent licence due to the Law Society Proceeding, including the Law Society allegations and the Law Society Decision against the Applicant. The Superintendent submits that for the Tribunal hearing, he intends to rely on the Law Society Proceeding "as a whole" rather than on any discrete aspect of it. The Superintendent states that he does not intend to re-litigate any of the evidence from the Law Society Proceeding or call any of the witnesses or submit any document other than the Law Society allegations and the Law Society Decision which on their face support his case.

19The Superintendent submits that while the Applicant is free to focus on specific aspects of the Law Society Proceeding in his response to the Superintendent, the Applicant cannot control or limit the Superintendent's case under the guise of transparency.

20As noted by the Superintendent, the Applicant previously brought a disclosure motion (in which, among other things, he requested that the Superintendent be ordered to provide formal written responses to the Applicant's responses to the NOP). This disclosure motion was heard in writing and decided by the Tribunal on August 31, 2017 (the "August 31, 2017 Decision"). In that decision, the Tribunal concluded that it had no authority to dictate which of the Applicant's facts and/or submissions that the Superintendent must address for purposes of the hearing.⁴

21Similarly, the Tribunal has no authority now to order the Superintendent to rely on particulars or evidence stemming from the Law Society allegations for purposes of the NOP and the Tribunal hearing. As indicated by the Tribunal in its January 17, 2018 Decision, the Superintendent could, if desired, rely on the Law Society Decision (and any related documents) as some support for the Superintendent's position before the Tribunal; the probative value of such evidence and the weight to be given to it would be decided by the Tribunal at the hearing (based on the submissions of the parties at that time).⁵ If the Superintendent chooses to frame his case in this manner at the hearing, and to call no other evidence, that is the Superintendent's prerogative.

22In summary, it is the Tribunal's view that the Superintendent has been transparent as to the grounds of the NOP: the Law Society Proceeding "as a whole" (as opposed to any particular evidence therefrom) and the Law Society Decision. For that reason, there are simply no further "particulars or evidence" related to the Law Society Proceeding or to the Applicant's "good character and reputation" (as contemplated under subsection 4(1) of Ontario Regulation 347/04) to be provided to the Applicant.

23The request by the Applicant for an order for particulars is, therefore, denied.

B. Requests Relating to Two-year Limitation Period Under the Act

24The Applicant further requests that the Tribunal:

(a) order that the Superintendent is subject to the two-year limitation period under section 449 of the Act regarding the Superintendent's allegations of misconduct by the Applicant related to the Law Society Proceeding on which the Superintendent relies for the Tribunal hearing, in support of the NOP;

(b) order that the Superintendent cannot rely on any of the alleged offences against the Applicant that are the subject of the Law Society Proceeding as reasonable grounds for the NOP, due to the two-year limitation period;

(c) order the Superintendent to issue an unconditional insurance agent licence without the need for the Tribunal hearing (only if the Superintendent confirms that due to the two-year limitation period, he does not intend to rely on the alleged misconduct by the Applicant stemming from the Law Society Proceeding for purposes of the Tribunal hearing);

(d) as an alternative to (c), order the Superintendent to issue the Applicant an unconditional interim insurance agent licence pending the outcome of the Tribunal hearing (if the Tribunal's view is that the hearing is in fact required).

25 Section 449 of the Act provides as follows:

Limitation period

449 No proceeding for an offence under this Act may be commenced more than two years after the date on which the facts upon which the proceedings are based first came to the knowledge of the Superintendent.

26The Superintendent submits that the Applicant's two-year limitation argument has no merit, since the limitation period only applies to prosecutions for "offences" (i.e., subsection 447(2) of the Act) and not to the issuance of licences.

27Having reviewed subsection 447(2) and section 449 of the Act, the Tribunal finds that the two-year limitation period does not apply to the issuance of licences and thus, does not apply to this case. In other words, the Superintendent is not statute-barred (under the Act) from relying on aspects of the Law Society Proceeding for purposes of the NOP and the Tribunal hearing.

28In addition, the Tribunal notes that in regard to the Applicant's requests for an unconditional licence without a Tribunal hearing or an unconditional interim licence, the Applicant made the same requests in his prior disclosure motion. Both requests were denied by the Tribunal in its August 31, 2017 Decision, as the Tribunal has no jurisdiction to make such orders. As stated in that decision, whether the Applicant is entitled to a licence without conditions is the key issue that is to be determined at the hearing; the Tribunal has no authority and is not able to make such a determination at this preliminary stage, without any evidence and a full hearing and without hearing the submissions of the parties on this issue.⁶

29Accordingly, the request by the Applicant for the four orders relating to the two-year limitation period under the Act is denied.

C. Request for Costs

30The issue of costs will be addressed at the end of the Tribunal hearing.

IV. ORDER

31The Tribunal orders that the motion brought by the Applicant for particulars, and for a determination that the two-year limitation period in the Act applies to this matter, be dismissed in its entirety.

32The Registrar will contact the parties to schedule another pre-hearing teleconference, to take place as soon as practicable, to discuss and agree upon the deadlines for preparing, serving and filing the Agreed Statement of Facts, Agreed Book of Documents, witness statements (if any) and written submissions. At this next pre-hearing teleconference, the parties should also be prepared to discuss whether a six day hearing is necessary and whether this matter can be addressed in one or two days, within the dates already scheduled for this hearing (May 24, 25, 28, 29, 31 and June 1, 2018). If not, new hearing dates will have to be scheduled.

Dated at Toronto, this 12th day of April, 2018.

"Audrey Mak" Audrey Mak

"Ian McSweeney" Ian McSweeney

"Paul Farley" Paul Farley

Footnotes

Spiegel v. Ontario (Superintendent Financial Services), 2018 ONFST 1
R.S.O. 1990, c. S.22
S.O. 1997, c. 28
Spiegel v. Ontario (Superintendent Financial Services), 2017 ONFST 12, at para. 23.
Spiegel, supra note 1 at para.17.
Spiegel, supra note 4, at paras. 11 to 16.