Gilbert v. Alberta Insurance Council, (2009) 481 A.R. 353 (QB)

• Judge: Sanderman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 14, 2009
• Citations: (2009), 481 A.R. 353 (QB);2009 ABQB 673

Gilbert v. Alta. Ins. Council (2009), 481 A.R. 353 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. NO.124

James Gilbert (applicant) v. Alberta Insurance Council and Insurance Councils Appeal Board of Alberta (respondents)

(0803 17898; 2009 ABQB 673)

Indexed As: Gilbert v. Alberta Insurance Council

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sanderman, J.

November 20, 2009.

Summary:

Complaints were filed alleging that an insurance agent had co-mingled funds (2004) and had allowed travel insurance to be provided by an unauthorized individual (2005). The Life Insurance Council found the agent at fault and imposed sanctions. The agent appealed. The Insurance Council Appeal Board dismissed the de novo appeal. The insurance agent applied for judicial review, alleging that he was denied procedural fairness and the panel misinterpreted s. 480(1)(a) of the Insurance Act. Section 480(1)(a) provided that sanctions could be imposed on a holder of a certificate of authority if that person was guilty of misrepresentation, fraud, deceit, untrustworthiness or dishonesty.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 546

The hearing and decision - Decisions of the tribunal - Reasons for decisions - General - [See Administrative Law - Topic 561 ].

Administrative Law - Topic 561

The hearing and decision - Decisions of the tribunal - Filing or delivery of - The Insurance Council Appeal Board (three member panel) convened to hear an appeal (a de novo hearing) respecting complaints that an insurance agent had co-mingled funds and had allowed travel insurance to be provided by an unauthorized individual - The panel issued an 18 page written decision setting out the reasons of the panel - Two panel members released concurring decisions some time before the Chairman's written reasons were completed - The insurance agent appealed, claiming that the decisions of the panel were noncompliant with the legislative requirements resulting in a denial of natural justice - The Alberta Court of Queen's Bench held that the issuance of the concurring decision before the Chairman's decision was merely an irregularity - It may have been noncompliant as to form but in no way changed the substance of the unanimous findings of the properly constituted panel - No prejudice flowed from the irregularity - See paragraphs 15 to 17.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - Complaints were filed alleging that an insurance agent had co-mingled funds (2004) and had allowed travel insurance to be provided by an unauthorized individual (2005) - The Life Insurance Council rendered its decisions on the complaints in April and May of 2006 - Fault was found - The agent filed an appeal in June 2006 - The Insurance Council Appeal Board heard the appeal in June 2007 and the decision of the Chairman of the Panel was issued in January 2009 - The insurance agent applied for judicial review, complaining that the inordinate delay lead to a denial of natural justice - The Alberta Court of Queen's Bench examined the causes for the delay - As to the first complaint, the insurance agent acquiesced to the period of delay in the Appeal Board reaching a decision - As to the delay respecting the second complaint, the court found that the delay was not inordinate and unreasonable, and even if it was, the agent could not point to any real prejudice as a result of the delay - See paragraphs 9 to 25.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Complaints were filed alleging that an insurance agent had co-mingled funds (2004) and had allowed travel insurance to be provided by an unauthorized individual (2005) - The Life Insurance Council rendered its decisions on the complaints in April and May of 2006 - Fault was found - The agent appealed - In January 2009, the Insurance Council Appeal Board dismissed the de novo appeal - The insurance agent applied for judicial review, claiming that he was denied procedural fairness (prejudiced) because he was promised that both matters would be referred to the Life Insurance Council at the same time, and they were not - The Alberta Court of Queen's Bench rejected this argument - The evidence did not bear out his belief that there was a firm commitment to have one hearing before the Council - The Life Insurance Council was entitled to control its own process - It could not be bound by any informal arrangement between an agent and an investigator looking at a complaint - In any event, the complaint regarding the first hearing did not carry through to the appeal as it was a hearing de novo - See paragraphs 26 to 28.

Administrative Law - Topic 2601

Natural justice - Evidence and proof - General - Complaints were filed alleging that an insurance agent had co-mingled funds (2004) and had allowed travel insurance to be provided by an unauthorized individual (2005) - The Life Insurance Council found the agent at fault - The agent appealed - The Insurance Council Appeal Board dismissed the de novo appeal - The insurance agent applied for judicial review, claiming that he was denied procedural fairness because the Appeal Board failed to consider evidence of a settlement agreement reached between the parties respecting the second investigation - The Alberta Court of Queen's Bench rejected this argument - The Board was entitled to control its own process - The Board was correct in its position that evidence of settlement discussions were privileged and should not be received into evidence - See paragraph 29.

Insurance - Topic 442

Agents - Discipline - Professional misconduct - Complaints were filed alleging that an insurance agent had co-mingled funds and had allowed travel insurance to be provided by an unauthorized individual - The Life Insurance Council found the agent guilty of "misrepresentation, fraud, deceit, untrustworthiness or dishonesty" within the meaning of s. 480(1)(a) of the Insurance Act and imposed sanctions - The agent appealed - The Insurance Council Appeal Board dismissed the de novo appeal - The agent applied for judicial review, arguing that the Appeal Board's interpretation of s. 480(1)(a) was unreasonable - He submitted that the finding of the Appeal Board that he had the requisite intent to support a finding of misrepresentation, fraud, deceit, untrustworthiness or dishonesty was unreasonable - The Alberta Court of Queen's Bench rejected this argument - The court noted that the Board had addressed this issue in regard to the co-mingling of funds and found that the requisite mental element was made out and found that the agent was dishonest in his dealings with his client - The Board's decision to uphold the Council's decision was reasonable - See paragraphs 31 to 37.

Insurance - Topic 442

Agents - Discipline - Professional misconduct - [See Administrative Law - Topic 561 , Administrative Law - Topic 2158 , Administrative Law - Topic 2266 and Administrative Law - Topic 2601 ].

Cases Noticed:

Roy v. Insurance Councils Appeal Board of Alberta et al. (2008), 455 A.R. 318; 2008 ABQB 572, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Wachtler v. College of Physicians and Surgeons (Alta.) (2009), 448 A.R. 317; 447 W.A.C. 317; 2009 ABCA 130, refd to. [para. 23].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 25].

Anderson et al. v. British Columbia Securities Commission (2004), 192 B.C.A.C. 119; 315 W.A.C. 119; 2004 BCCA 7, refd to. [para. 31].

Statutes Noticed:

Insurance Act, R.S.A. 2000, c. I-3, sect. 480(1) [para. 5].

Counsel:

Suzanne Thomas (Duncan & Craig LLP), for the applicant;

Timothy J. Boyle (Spier Harben), for the respondents.

This application was heard on October 14, 2009, before Sanderman, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 20, 2009.