The Superintendent of Financial Services v. Sussman Mortgage Funding Inc.
The Divisional Court erred as a matter of law by substituting a penalty without giving reasons and by not ensuring Sussman had an opportunity to make submissions on penalty; the appropriate remedy is to remit the matter to a differently constituted Tribunal to determine penalty based on the Tribunal's findings of...
Source-derived case information.
- Citation
- C43248
- Parties
- Appellant: The Superintendent of Financial Services; Respondent: Sussman Mortgage Funding Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 10 November 2005
- Procedural Posture
- Civil Appeal From Divisional Court (administrative/tribunal Penalty) / Appeal to Court of Appeal; Matter Remitted to Tribunal for Penalty Determination
- Outcome
- Appeal allowed in part; Divisional Court's substitution of penalty vacated; matter remitted to a differently constituted Tribunal for penalty determination; costs awarded to appellant.
- Legal Topics
- Procedural Fairness, Reasons for Decision, Remittal to Tribunal, Penalty Assessment, Licence Revocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Superintendent of Financial Services
Appellant
Sussman Mortgage Funding Inc.
Respondent
Procedural Posture
Civil Appeal From Divisional Court (administrative/tribunal Penalty) / Appeal to Court of Appeal; Matter Remitted to Tribunal for Penalty Determination
Legal Issues
- 1 Whether the Tribunal failed to give Sussman an opportunity to make submissions on penalty after findings of misconduct
- 2 Whether the Divisional Court erred by substituting a penalty without providing reasons
- 3 Whether the matter should be remitted to the Tribunal to determine penalty
Ratio Decidendi
The Divisional Court erred as a matter of law by substituting a penalty without giving reasons and by not ensuring Sussman had an opportunity to make submissions on penalty; the appropriate remedy is to remit the matter to a differently constituted Tribunal to determine penalty based on the Tribunal's findings of August 8, 2002, with liberty to hear further evidence.
Court Disposition
Appeal allowed in part; Divisional Court's substitution of penalty vacated; matter remitted to a differently constituted Tribunal for penalty determination; costs awarded to appellant.
Orders
- Vacate Divisional Court order substituting penalty.
- Remit matter to a differently constituted Tribunal to determine penalty based on the Tribunal's findings of August 8, 2002, with the Tribunal at liberty to hear any evidence relevant to penalty including events after August 8, 2002.
Full Case Text
Judgment text and source record
1 paragraphs
The Superintendent of Financial Services v. Sussman Mortgage Funding Inc. Collection Decisions of the Court of Appeal Date 2005-11-10 Docket numbers C43248 Judges Doherty, David H.; Weiler, Karen Merle Magnuson; Moldaver, Michael James Subject Civil Decision Content DATE: 20051110 DOCKET: C43248 COURT OF APPEAL FOR ONTARIO RE: THE SUPERINTENDENT OF FINANCIAL SERVICES (Appellant) v. SUSSMAN MORTGAGE FUNDING INC. (Respondent) BEFORE: DOHERTY, WEILER and MOLDAVER JJ.A. COUNSEL: Robert Conway for the appellant Henry Blumberg and Ronald Segal for the respondent HEARD: November 7, 2005 On appeal from the order of the Divisional Court dated December 14, 2004. ENDORSEMENT [1] We agree with the Divisional Court that the Tribunal erred in failing to give Sussman an opportunity to make submissions to the appropriate penalty after its finding on the merits of the allegation. Unfortunately, the Divisional Court did not give any reasons for vacating the Tribunal’s order revoking the Sussman licence and substituting a penalty, which only placed certain terms on the licence. Absent reasons, it is impossible for the parties or the Tribunal to know why the Divisional Court made such a significant change in the penalty while at the same time accepting the strong findings made by the Tribunal. In these circumstances, the failure to give reasons constitutes an error in law. [2] We think the Tribunal is in by far the best position to assess the seriousness of the conduct, the importance of the mitigating factors, and the feasibility of any terms or conditions that either party might seek. The Divisional Court should have remitted the matter to the Tribunal for the imposition of penalty. We now make that order. [3] The assessment of penalty will proceed before a differently constituted Tribunal. Penalty will be determined based on the findings made by the Tribunal in its reasons of August 8, 2002 in so far as those findings describe Sussman’s conduct. The Tribunal is at liberty to hear any evidence relevant to penalty, including evidence of events that arose after August 8, 2002. [4] The appellant has had partial success on the appeal. Costs to the appellant in the amount of $5,000. “Doherty J.A.” “K.M. Weiler J.A.” “M.J. Moldaver J.A.”