The Registered Insurance Brokers of Ontario (RIBO) has published another decision wherein the regulator’s own panel says it struggled with the joint submission on penalty entered into between RIBO and the broker being disciplined.
In the case against Frank Peragine the parties filed a joint submission on penalty (JSP) asking for the licensee to be reprimanded and pay a fine in the amount of $2,500. The broker allegedly had premiums, excess fees and premium overpayments deposited into his own personal bank account.
“The allegations against the licensee in this case were numerous, serious and contained elements of ethical failings, including misleading consumers and providing false and misleading statements to two employers during their investigations of complaints. Payments were accepted by the licensee from customers and deposited into the licensee’s personal bank account in addition to premiums paid by consumers, indicating financial impropriety,” the decision and reasons in the case states.
In August 2019, Peragine reportedly distributed a flier to his taxi driver clients indicating that drivers could obtain coverage provided the premium and an additional amount were paid directly to the broker. Neither firm represented in the fliers had approved of the material. When the companies spoke to Peragine about the material he denied creating it.
A subsequent investigation revealed that he also shared client information with his wife, issued certificates without correct details regarding terms, policy numbers, brokers and insurers, failed to inform clients about gaps in their coverage and requested at least one letter of experience which showed client coverage when there was no actual policy bound for the time period.
The decision goes on to say the panel struggled with the penalty of only a reprimand and fine of $2,500 for such conduct but added that it recognized that JSPs are used to promote efficiency and encourage settlement of matters. “Ultimately, after much discussion, the panel determined that the joint submission was not so unhinged from the circumstances that it brought the administration of justice into disrepute,” they state. “In accepting the JSP, the Panel members recognized the high bar set by the Supreme Court of Canada in R. v. Anthony-Cook to reject a joint submission, which applies to this tribunal pursuant to the Ontario Divisional Court’s decision in Bradley v. Ontario College of Teachers.”
In R. v. Anthony-Cook the manslaughter sentencing case sets out the legal test trial judges should apply in deciding whether it is appropriate in a particular case to depart from joint submission. In Bradley v. Ontario College of Teachers the court ruled that disciplinary committees cannot reject a JSP merely because they disagree with it.
“To our knowledge, this is the first time the Divisional Court has explicitly stated that the Anthony-Cook public interest test applies to discipline hearings. While some tribunals have in the past applied a different test, this case suggests that the test set forth in Anthony-Cook ought to be applied by all disciplinary tribunals going forward,” representatives from Glick Feinberg Stone LLP explain in their briefing about the 2016 decision, The Importance of Joint Submissions: Bradley v Ontario College of Teachers.
“The decision also makes it extremely difficult for a panel to reject a joint submission that is supported by prior cases of the tribunal with similar facts.”
