Panel member: Elizabeth Shilton (Vice Chair)
Parties to hearing: Adam Scriver; Stephen Scharbach (for the Superintendent of Financial Services).
SUBJECT: INSURANCE AGENTS; NOTICE OF PROPOSAL TO IMPOSE AMP; REQUEST FOR HEARING
The Applicant, Adam Scriver, was licensed to carry on business as an insurance agent. On July 25, 2014 the Superintendent issued to the Applicant a Notice of Proposal (NOP) to impose an Administrative Monetary Penalty (AMP) under the Insurance Act. The NOP was sent via registered mail to the Applicant’s address on file and Canada Post tracking information confirmed that the letter was signed for on August 14, 2014. The Applicant filed a Request for Hearing on September 11, 2014. On November 17, 2014 the Superintendent filed a Notice of Motion asking that the Request for Hearing be dismissed because it was filed after the 15 days deadline imposed by the Act. The Tribunal issued a Notice of Intention to Dismiss the matter pursuant to Rule 33.01 of the Tribunal’s Rules of Practice and Procedure, and the parties were invited to provide written submissions.
The Tribunal had to determine when notice was given for the purpose of determining when the 15 day limit under s 441.3 of the Insurance Act expired. The Superintendent took the position that notice was given on the day that Canada Post advised that the registered letter containing the NOP was signed for.
The Tribunal found that this approach may not be appropriate because it could not be established that it was the Applicant who signed for the letter on August 14, 2014. The Tribunal looked to s. 33 of the Insurance Act which provides that notices may be sent by registered mail and service is deemed to be effective on the seventh day after the document is mailed. The Tribunal therefore held that the date of effective service was August 7, 2014 and that the 15 day limit to file a Request for Hearing expired on August 22, 2014. As a result, the Tribunal concluded that the Applicant’s September 11, 2014 request was filed after expiry of the deadline.
The Tribunal also considered its decision in Chandler v Ontario (Superintendent Financial Services), 2014 ONFST 12 in which the Tribunal noted that the 15 day deadline was either a substantive requirement that could not be waived or extended, or a procedural requirement that could be waived but only with the consent of both parties. The Superintendent did not consent to a waiver. The Tribunal therefore found that whether the requirement was substantive or procedural, it did not have jurisdiction to proceed with a hearing.
As a result, the Tribunal ordered that the Request for Hearing be dismissed.
Case referred to:
Chandler v Ontario (Superintendent Financial Services), 2014 ONFST 12 (CanLII)
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