Financial Services Tribunal & Pension Commission of Ontario Case Summaries/
Summaires des décisions du Tribunal des services financiers et de la Commission des régimes de retraite de l'Ontario

Case Name/nom du dossier:Lee v. Superintendent of Financial Services

Type/type:Mortgage Brokers/Courtiers en hypothèque

Decision Date/Date de la décision:2015-10-29

Tribunal/tribunal:FST/TSF




FST File No : M0632-2015-1

Date of decision: October 29th, 2015

Panel members: Paul Farley

Parties to hearing: Mark Lee; Superintendent of Financial Services

SUBJECT: REVOCATION OF MORTGAGE BROKER LICENCE; TRIBUNAL JURISDICTION WHERE REQUEST FOR HEARING FILED AFTER DEADLINE

Summary

The Superintendent issued a Notice of Proposal (“NOP”) to revoke the mortgage broker’s licence of Mark Lee (“the Applicant”), alleging serious contraventions of the Mortgage Brokerages, Lenders and Administrators Act, 2006 (“the Act”). The NOP was issued on April 7, 2015 and received by the Applicant on April 16, 2015.

Pursuant to section 21(3) of the Act, the Applicant was required to file a Request for Hearing (“RFH”) in writing within 15 days of his receipt of the NOP. The main factual issue in dispute was whether the applicant requested a hearing in writing before the end of this 15 day period on May 5, 2015.

The Tribunal did not accept the Agent’s evidence that he had filed the RFH on April 27, 2015 by facsimile. While a Request for Hearing was received by the Registrar on May 22, 2015, this fell well outside the time limit for filing prescribed by the Act.

The Tribunal found that the Superintendent’s evidence met the standard of being “clear, convincing and cogent”. The Tribunal found as a fact that the Applicant received the NOP on April 16, 2015 and the RFH was received on May 22, 2015. No other RFH was received by the Registrar with respect to this matter.

The Tribunal accepted that it was not required to determine if the section 21(3) deadline was a substantive or procedural requirement, as the Superintendent had not consented to waive or extend the deadline. The Tribunal concluded that as the Request for Hearing was filed more than 15 days after the Applicant received the NOP and the Superintendent had not consented to waive the statutory deadline imposed by section 21(3) of the Act, the Tribunal had no jurisdiction to proceed with a hearing on the merits.

Cases cited:

Law Society of Upper Canada v. Nenstein, 2007 CanLii 8001 (ON SCDC)
Henderson v. Ontario (Superintendent Financial Services), 2008 ONFST 7
Combined Dynamic Equity Investments Limited v. Ontario (Superintendent Financial Services) 2015 ONFST 19


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