FINANCIAL SERVICES TRIBUNAL

Citation: Ulrich v. Ontario (CEO of FSRA), 2022 ONFST 3 FST File No. I0932-2021 Date: 2022/01/12

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 a Notice of Proposal to Refuse to Renew Licence dated February 10, 2021 issued by the Senior Manager, Licensing Compliance by delegated authority from the Chief Executive Officer;

AND IN THE MATTER OF a proceeding commenced through a Request for Hearing in accordance with sections 407.1(2) and (3) of the Act.

B E T W E E N:

SANDY LEIGH ULRICH

APPLICANT

and

CHIEF EXECUTIVE OFFICER of the FINANCIAL SERVICES REGULATORY AUTHORITY

RESPONDENT

BEFORE:

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

WRITTEN SUBMISSIONS:

For the Applicant – John McNabb, representative

For the Respondent – Michael Spagnolo, Counsel

REASONS FOR DECISION

I. INTRODUCTION

1On December 24, 2021, Mr. McNabb, the representative for the Applicant in the above matter (the “Refusal Proceeding”), filed with the Financial Services Tribunal (“FST” or “Tribunal”) a Request for Review or Variance of Order Dated December 14, 2021 (the “Request”).

2The Request relates to orders that were made by Ms. Whiston, the Chair of the Refusal Proceeding and a Vice-Chair of the Tribunal, at a Pre-Hearing Conference held on December 8, 2021 (the “PHC”) and documented in a PHC memorandum dated December 14, 2021.

3In the Request, the representative for the Applicant advised the Tribunal about his capacity constraints over the past 60 days, submits that there would be no prejudice to FSRA if the Request were granted and apologizes for the delay he has engendered. In particular, the Applicant, through her representative, requests as follows:

“…elements of FSRA’s Response warrant a Reply by the Applicant. It is critical that the Applicant have an opportunity to file her Reply because, as you specifically noted in your PHC Memo, (para. 14) dated September 15, 2021: ‘The resolution of this motion respecting the jurisdiction of the CEO to issue the Refusal NOP will have a big impact on both the Revocation Proceeding and the Refusal Proceeding, therefore, I ask the parties to take care to include all important authorities and legal submissions respecting the issue in their motion materials.’

…I request that your Order dated December 14, 2021 concerning the submission of documents and the indefinite adjournment of the PHC in this Proceeding be reviewed and revised or, in the alternative to a review of the Order, that it be varied pursuant to FSTO (sic) Rule 13.01, to provide that the timeline for the Applicant to serve/file her Reply on this Motion be extended to December 31, 2021.

4On January 5, 2022, Counsel for the Chief Executive Office, provided submissions with respect to the Request, as follows:

“Similar to the objection to the affidavit filed by the Applicant for this motion, the Respondent objects to the Applicant filing reply submissions for the motion.

As stated by the Chair in the attached prehearing conference memorandum, the “submissions for the parties are complete.” Though the Applicant is entitled to a Reply, the Reply must be made in accordance with the Order of the Chair. The Applicant has failed to comply with an Order of the Chair to file the Reply by November 22, 2021.

The Applicant failed to attend the December 8, 2021 prehearing conference after being given notice of the date, time, and purpose. At the time of the PHC, the Applicant was already over 2 weeks late on filing the reply in accordance with the extension request granted by the Chair. At no time between the request for extension of November 17 and the attempted filing of the Applicant’s affidavit on December 23, did the Applicant seek any further extension or provide any explanation as to the reason for the delay.”

5After considering the occurrences during the proceeding, including the Request filed by the Applicant and the submissions of counsel for the CEO, and the Rules of Practice and Procedure for Proceedings before the Financial Services Tribunal (the “Tribunal Rules”) I have determined that, under the circumstances, 1. the importance of maintaining the integrity and authority of the Tribunal’s orders, so that public respect for and trust in the Tribunal continues, and 2. public interest in the finality of decisions and orders, outweighs any prejudice to the Applicant. The Applicant’s Request is dismissed. My analysis follows.

II. Occurrences during the Proceeding

6I set out below, some of the significant activities that have occurred, or circumstances that exist, in this proceeding:

a) On February 10, 2021, the Respondent issued a Notice of Proposal to Refuse to Renew Licence (the “NOP”) against the Applicant and it was sent to the Applicant by registered mail on February 19, 2021.

b) On February 26, 2021 the Applicant signed a Form 1 Request for Hearing in respect of the NOP.

c) Between the Request for Hearing and the first pre-hearing conference (“PHC”) in this matter various activities occurred related to the fact that there are two inter-related proceedings respecting Ms. Ulrich, including the filing by the Applicant on March 15, 2021 of a motion to dismiss the proceeding for lack of jurisdiction (the “Motion re Jurisdiction”).

d) On September 1, 2021 a PHC was held in the matter. It was agreed that the Motion re Jurisdiction would be heard in writing, the parties confirmed there was no need to agree on facts or documents to file with the Tribunal, and the following orders were made respecting the filing of motion materials:

i. The Applicant would file a revised Motion re Jurisdiction on or before October 5, 2021.

ii. The Respondent would file responding motion materials on or before October 22, 2021; and

iii. The Applicant would file any reply materials before November 5, 2021.

e) On October 4, 2021, the Applicant requested an extension of the October 5 deadline until October 6, 2021. The Respondent consented and it was so ordered by the Chair.

f) On October 7, 2021, the Applicant advised of personal circumstances that kept him from filing the materials and requested an extension to October 8, 2021. The Respondent consented and requested an extension of the October 22 deadline to November 3, 2021. The Applicant consented and requested that the reply materials deadline be extended to November 17, 2021. The Chair ordered the requested new deadlines.

g) The Applicant did not file materials on Friday, October 8, 2021, as ordered and the following notice was sent to the parties on October 12, 2021: “The Chair has asked me to indicate to the parties that deadlines set at pre-hearings are by order of the Tribunal, and must be complied with unless extensions are granted. The Tribunal granted two very reasonable requests for extensions to the current deadline for the Applicant to file motion materials. The Chair also granted an extension to the Respondent for filing its motion materials and an extension for the Applicant to file reply submissions. However, the Applicant’s extended deadline of October 8 for filing motion materials has been missed. There are consequences that can be imposed for missed deadlines. They must be taken seriously. Do the parties want to schedule a further PHC to discuss the current circumstances?’’

h) The Applicant filed the revised Motion re Jurisdiction on October 13, 2021. An email was also received by the Tribunal on October 12, 2021 advising that technology issues kept the Applicant from meeting the October 8 deadline. The Applicant also advised the Tribunal on October 13, 2021 that the parties were working on an Agreed Statement of Facts (“ASF”) and an Agreed Book of Documents (“ABD”).

i) On October 13, 2021, the Applicant’s representative shared an email (but not the attached document) he had sent to the Respondent providing a draft Book of Authorities related to the Applicant’s Motion re Jurisdiction, indicating that a final version would be filed with the Applicant’s Reply.

j) On November 2, 2021, the Respondent filed his responding motion materials and Book of Authorities.

k) On November 17, 2021, the Applicant requested an extension to November 22, 2021, for filing Reply submissions and indicated the extension request was related to business obligations. The Respondent consented to the extension but expressed concern about the status of an ABD and asked for a deadline to be set for comments back from the Applicant on the draft ABD. The Respondent advised that an affidavit would be required to be sworn if comments were not received by the deadline. The Chair approved the extension on receiving Reply submissions from the Applicant and set a deadline of November 19, 2021 for the Applicant to provide comments on the draft ABD. The email to the parties asked them to advise if there was a need to schedule a PHC to address any issues.

l) On November 23, 2021, the Respondent advised the Tribunal that no comments were received on the draft ABD and no Reply Submissions were received. The Respondent advised that Ms. Kwok would be swearing an affidavit setting out the relevant documents from the draft ABD (the “Affidavit”) and requested the Chair render a decision in the matter based on the submissions filed to date.

m) The Chair responded by asking the Registrar to canvas dates for a PHC with the parties to discuss the affidavit and whether the Applicant wanted to have an opportunity to cross examine the person providing the Affidavit. The email to the parties from the Registrar warned, if no response was received the PHC could be set without consideration for that party’s availability.

n) The Applicant did not respond, but the Respondent provided their availability and a PHC was scheduled for December 8, 2021. A notice was sent to the parties respecting the PHC.

o) The Applicant did not communicate with the Tribunal in respect of the PHC and did not attend. The PHC was held on December 8. An excerpt from the PHC memorandum dated December 14, 2021, provides: “… the submissions for the parties are complete…As the parties developed their submissions the Applicant proposed certain documents be included in an ABD. At the PHC, Counsel for the Respondent confirmed that the parties attempted but were unable to finalize an ABD. The Respondent would be willing to prepare an affidavit to be filed to assist the Chair in her deliberations on the Motion. The Affidavit would attach the documents proposed by the Applicant to be in the ABD, and agreed to by the Respondent…The parties were informed, in the email proposing possible dates for this PHC, that the purpose of this PHC was to determine if there should be an opportunity for the Applicant to cross-examine the person swearing the affidavit. For the following reasons, there is no need to do so:

i) All of the documents to be included in the affidavit are documents proposed by the Applicant for the ABD;

ii) There is little substantive content in the documents;

iii) The person swearing the affidavit has no particular knowledge of the documents.”

p) Counsel for the Respondent agreed to prepare the Affidavit by December 17, 2021. It was completed and filed on December 10, 2021.

q) On December 24, 2021, the Applicant attempted to file an affidavit with the Tribunal. The Respondent objected to the filing for the following reasons: “The Applicant failed to attend the prehearing on December 8 and did not respond to numerous subsequent emails from the Respondent. At the PHC, the Chair ordered that FSRA provide evidence by way of affidavit which was filed shortly after the PHC. Therefore, the evidence is already before the Chair and this affidavit is unnecessary. The Applicant cannot fail to attend PHCs and then violate orders of the Tribunal.” The Chair did not accept the Applicant’s affidavit, indicating that she agreed with the submissions of the Respondent.

r) Also, on December 24, 2021, the Applicant filed the Request. On January 4, 2022, as noted above, the Respondent objected, under the circumstances, to the Applicant filing reply submissions.

III. Tribunal Rules

7The following Rules are of particular significance to the current issues in this proceeding. They generally speak for themselves but will also be called out where relevant in the paragraphs concluding this decision:

a) Rule 1.03 - These Rules shall be broadly interpreted to produce the quickest, most just and least expensive determination of the issues before the Tribunal.

b) Rule 5.02 - Where a party cannot meet a time limit prescribed by the Rules or proposes the abridgement of such a time limit, the party shall promptly file a request for an extension or abridgement of time, including the reason why it is necessary, the specific relief sought and an indication of whether the other parties consent or oppose the request.

c) Rule 13.01 - The Tribunal may make or amend procedural orders at any time in a proceeding, which shall govern the conduct of the proceeding.

d) Rule 13.03 - Where a party to a proceeding has not complied with a requirement of the Rules, the Tribunal may…(a) grant relief, subject to such conditions as the Tribunal considers just…(c) make such other order as it considers just.

e) Rule 46.01 - In deciding whether it is advisable to review all or part of its decision or order, the panel or member may consider any relevant circumstances, including…(d) whether the public interest in finality of decisions and orders is outweighed by the prejudice to the requester.

IV. conclusion

8As noted in the Tribunal’s October 12, 2021 email to the parties, deadlines set at PHCs are by order of the Tribunal, and must be complied with unless extensions are granted or other extenuating circumstances exist. Rule 5.02 speaks to what is required from a party unable to meet a time limit. In the current circumstances it cannot be argued that the Applicant promptly filed a request for an extension of time, in seeking, over one month after the deadline was missed, their 5^th extension in this proceeding .

9There are occasions when a deadline is missed but the party has a very good reason why they missed it and the Tribunal will often be flexible and permit a new deadline to be established or, preferably, extensions to be granted, particularly if the other parties to the proceeding do not object. The Tribunal granted reasonable requests for four previous extensions to the Applicant throughout the fall and the Respondent consented to these extensions. One of those extensions related to a missed deadline on an occasion where the Applicant experienced technological issues. The Chair also granted one extension to the Respondent.

10However, there are consequences that can be imposed, and should be imposed under certain circumstances, for missed deadlines. Deadlines are orders of the Tribunal, and they must be taken seriously. If there are, as in this proceeding, repeated occasions where ordered deadlines are extended and/or missed and it even appears that deadlines are being completely ignored, the Tribunal must take a firm hand. If the Tribunal did not impose consequences when parties to the proceeding ignore the fact that deadlines have been ordered, individuals and organizations involved with the industries which come to the Tribunal for adjudication of issues would lose respect for the Tribunal and would lose trust in the Tribunal’s orders and processes. As noted above, the integrity and authority of the Tribunal’s orders would be put at risk.

11There is a strong case to be made for the finality of decisions and orders of courts and of administrative tribunals and boards (Rule 46.01). In this proceeding, the case made for the finality of the December 8, 2021 orders outweighs any prejudice to the Applicant. The Applicant had an opportunity to attend the December 8, 2021 PHC, but did not attend. Neither did the Applicant request an adjournment of the December 8, 2021 PHC. It is in the public interest to confirm the orders made at the PHC in question (Rule 46.01) for reasons noted in the above paragraph and because it produces the quickest and least expensive determination of the issues (Rule 1.03). It is the fair result, considering the position of both involved parties. The Applicant in this proceeding has been treated respectfully and justly (Rule 13.03(c)), as seen from the above description of the occurrences during the proceeding.

12As stated in the December 14, 2021 PHC Memorandum, documenting the December 8, 2021 PHC, and as stressed by the Respondent in his submissions objecting to the Request, “the submissions for the parties are complete”.

V. ORDER

13It is hereby ordered that the Applicant’s “Request for Review or Variance of Order Dated December 14, 2021” is dismissed and the orders made at the December 8, 2021 PHC and documented in the December 14, 2021 PHC Memorandum are confirmed.

Dated at Toronto, this 12^th day of January, 2022.

“Bethune Whiston” Bethune Whiston