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:Carvalho v. Ontario (Superintendent Financial Services)

Type/type:Insurance/Assurance

Decision Date/Date de la décision:2015-02-17

Tribunal/tribunal:FST/TSF




Panel member: Elizabeth Shilton (Vice Chair)

Parties to hearing: Barbara Carvalho; Stephen Scharbach (for the Superintendent of Financial Services).

SUBJECT: INSURANCE AGENTS; NOTICE OF PROPOSAL TO IMPOSE AMP; REQUEST FOR HEARING

Summary:

The Applicant, Barbara Carvalho, is 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 the Canada Post tracking information confirmed that the letter was signed for on August 1, 2014. The Applicant filed a Request for Hearing on September 15, 2014.

The Superintendent filed a Notice of Motion asking that the Request for Hearing be dismissed because it was filed after the 15 day deadline contained in the Insurance Act. On December 19, 2014 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 invited the parties to make written submissions. Written submissions were considered and the Tribunal concluded that the request for a hearing should be dismissed because it was made outside the 15 day deadline.

The 15 day time limit begins to run when the notice is “given”. The Tribunal considered s. 33(3) of the Insurance Act which states that service of a notice may be made by registered mail and “is effective on the seventh day after the document is mailed”. The Tribunal therefore held that the date of effective service was 7 days after mailing. That date was August 7, 2014, and the 15 day limit to file the Request for Hearing was August 22, 2014. As a result the Applicant’s Request for Hearing on September 15, 2014 was filed after the 15 day limit had expired.

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.

Cases referred to:
Chandler v Ontario (Superintendent Financial Services), 2014 ONFST 12 (CanLII)
Scriver v Ontario (Superintendent Financial Services), 2015 ONFST 4 (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.