Panel member: Paul Farley
Parties to hearing: Lisa Raghubeer; Stephen Scharbach (for the Superintendent of Financial Services).
SUBJECT: INSURANCE AGENTS; NOTICE OF PROPOSAL TO IMPOSE AMP; REQUEST FOR HEARING
The Applicant, Lisa Raghubeer, was licensed to carry on business as an insurance agent. On July 25, 2014 the Superintendent issued a Notice of Proposal (NOP) to impose an Administrative Monetary Penalty (AMP) on the Applicant under the Insurance Act. The NOP was sent via registered mail to the Applicant’s address on file. However it could not be delivered and a second address for the Applicant was obtained using Ministry of Transportation records. The NOP was later sent to that address and was received by her on October 29, 2014.
The Applicant filed a Request for Hearing on December 11, 2014. On February 17, 2015 the Superintendent filed a Notice of Motion asking that he Request of Hearing be dismissed because it was filed after expiry of the 15 day deadline imposed by the Act. On February 24, 2015, the Tribunal issued a Notice of Hearing in Writing as authorised by Rule 14 of the Tribunal’s Rules of Practice and Procedure and the hearing proceeded on the basis of an agreed statement of fact and written submissions.
The issue before the Tribunal was whether the hearing request should be dismissed because it was filed with the Tribunal after expiry of the 15 day limit contained in s. 441.3 of the Insurance Act. The Superintendent took the position that the statutory time limit is either a substantive statutory requirement that cannot be extended or waived, or a procedural requirement that may be waived on the consent of both parties. Since the Superintendent did not connect to waive the time period, whether the requirement was regarded as substantive or procedural, the Tribunal had no jurisdiction to accept the hearing request.
The Tribunal followed the approach taken in Carvalho v Ontario (Superintendent Financial Services), 2015 ONFST 5, and Kimber v Ontario (Superintendent Financial Services), 2015 ONFST 8, and concluded that even if the 15 day requirement is regarded as procedural, the Superintendent did not consent to a waiver and consequently the Tribunal lacked jurisdiction to proceed with a hearing.
As a result, the Tribunal ordered that the Request for Hearing be dismissed.
Cases referred to:
Carvalho v Ontario (Superintendent Financial Services), 2015 ONFST 5 (CanLII)
Kimber v Ontario (Superintendent Financial Services), 2015 ONFST 8 (CanLII)
This summary is offered as a public service and should not be relied upon as legal advice. Many factors unknown to us may affect the applicability of any statement or comment made in the summary to your particular circumstances.