Panel member: Elizabeth Shilton (Vice Chair)
Parties to hearing: Jermaine Chandler; Stephen Scharbach (for the Superintendent of Financial Services).
SUBJECT: INSURANCE AGENTS; NOTICE OF PROPOSAL TO IMPOSE AMP; REQUEST FOR HEARING
The Applicant, Jermaine Chandler, 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). 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 5, 2014. The Applicant did not file a Request for Hearing within the 15 days provided for by the Insurance Act. As a result, on September 26, 2014 the Superintendent issued an Order which imposed the AMP. On October 6, 2014 the Applicant filed a Request for Hearing.
The issue before the Tribunal was whether the Tribunal still had jurisdiction to make an order with respect to the NOP or consider an appeal after the Superintendent issued the Order imposing the AMP. The Superintendent took the position that the Tribunal had no jurisdiction.
The Tribunal found that s. 441.3 of the Insurance Act, which sets out the 15 day limit to request a hearing, is directly analogous to s. 39 of the Mortgage Brokers, Lenders and Administrators Act. As such, the Tribunal looked to its decision in Singh v Ontario (Superintendent of Financial Services), 2013 ONFST 4 in which it adopted comments made in Viau v Ontario (Superintendent of Financial Services), 2010 ONFST 8. In Viau the Tribunal stated that the filing of a Request for Hearing under s. 39 of the MBLAA could be interpreted as a merely procedural time limit which could be waived under s. 4(1) of the Statutory Powers Procedure Act with consent of both parties.
In the present case, the Superintendent took the position that s. 441.3 of the Insurance Act was, like s. 40(4) of the MBLAA, a substantive rather than procedural requirement and therefore a requirement that cannot be waived under s. 4(1) of the SPPA without the consent of all parties and the Tribunal.
The Tribunal did not find it necessary to determine if the time limit was procedural or substantive because even if the 15 day time limit was procedural, it had been exceeded and the Superintendent had not consented to waive it. Therefore the Tribunal found it had no jurisdiction to proceed with a hearing on its merits.
Additionally, because the Superintendent had already issued the Order the Tribunal found that the NOP was no longer in effect at the time the Request for Hearing was filed and as such the Tribunal could not deal with a Request for Hearing. Furthermore, the Tribunal relied on Shi v Ontario (Superintendent of Financial Services), 2014 ONFST 2 to hold that because there was no statutory right of appeal the Tribunal could not review the Order.
As a result, the Tribunal ordered that the Request for Hearing be dismissed.
Cases referred to:
Shi v Ontario (Superintendent of Financial Services), 2014 ONFST 2 (CanLII)
Singh v Ontario (Superintendent of Financial Services), 2013 ONFST 4 (CanLII)
Viau v Ontario (Superintendent of Financial Services), 2010 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.