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:Kimber v. Ontario (Superintendent Financial Services)

Type/type:Insurance/Assurance

Decision Date/Date de la décision:2015-03-19

Tribunal/tribunal:FST/TSF




Panel member: John Solursh

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

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

Summary:

The Applicant, Jonathan Kimber, 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) under the Insurance Act 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 8, 2014. The Applicant filed a Request for Hearing on August 28, 2014. The Superintendent filed a Notice of Motion asking that the Request for Hearing be dismissed because it was filed beyond the 15 day limit imposed under the Act. On February 2, 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 written submissions.

The Applicant’s Request for Hearing was received by the Registrar on August 28, 2014 but dated August 10, 2014. In his written submissions the Applicant stated that he signed and dated the Request on the same weekend that it was received but admitted that it was not mailed until August 22, 2014.

The issue before the Tribunal was at what point the statutory time limit begins to run. As such the Tribunal had to determine when notice was deemed to be 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 the Applicant filed his Request for Hearing beyond the statutory limit and advised that the Superintendent did not consent to waive or extend the time limit.

The Tribunal followed the approach taken in Carvalho v Ontario (Superintendent Financial Services), 2015 ONFST 5, and looked to s. 33(3) of the Insurance Act which deals with deemed service and states that service is effective on the seventh day after the document is mailed. The Tribunal therefore held that the date service would have been effective was August 7, 2014 and that the 15 day limit to file the Request for Hearing was August 22, 2014. As a result, the Applicant’s Request for Hearing, received by the Tribunal’s registrar on August 28, 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)
Carvalho v Ontario (Superintendent Financial Services), 2015 ONFST 5 (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.