ANNUAL REPORT

2016|17

300-85 Charlotte Street

Saint John, NB

E2L 2J2

Tel: (506) 658-5575

(855) 267-1454

Fax: (506) 658-5477

www.fcnbtribunal.ca

ANNUAL REPORT

2016|17

TABLE OF CONTENTS

Chair’s Message

About the Tribunal

Financial Information

Hearings

Tribunal Activity

Ongoing Endeavors

4

6

9

11

14

16

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 4

CHAIR’S

MESSAGE

Financial and Consumer Services Commission. Over its short existence, the Tribunal has seen an

expansion of its jurisdiction which now includes authority over 14 provincial financial and consumer

protection acts.

Its processes remain a work in progress. Due to prior vacancies in the position of Chair, as well as the

challenges brought forth by a newly created « super tribunal » operating within the expanded but

exclusive areas of financial regulation and consumer protection, much remains to be done to ensure

the Tribunal can best respond to the obligations it has been invested with.

As Chair, it is my objective to bring both stability of structure and consistency in decision-making as

are owed to all parties appearing before the Tribunal within the scope of the regulatory and consumer

protection world.

To that end, it is also my objective to ensure the implementation of Tribunal procedures

and structures which can best respond to the expansive role of the Tribunal and the

requirements of procedural fairness and impartiality, principles that are critical to the

proper exercise of the obligations of a quasi-judicial Tribunal.

I look forward to the challenges ahead and I am confident that with the support shown

towards me by my Tribunal colleagues, as well as the Registrar and the support of the

Commission itself, my objectives can be reached for the benefit of all.

Pursuant to section 47 of the Financial and

Consumer Services Commission Act, I am pleased

to present the Annual Report of the Financial and

Consumer Services Tribunal for the year ending

March 31, 2017.

I was appointed the chair of the Tribunal on

November 3, 2016 for a term of five years.

The Financial and Consumer Services Tribunal came

into being along with the creation of the new

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 5

For any information in regards to Tribunal activities, please contact the Tribunal Registrar at #506-658-

5575 or registrar@fcnbtribunal.ca.

Judith Keating, Q.C.,

Chair

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 6

The Tribunal’s objective is to provide fair and equitable

hearings in a timely and efficient manner.

ABOUT THE

TRIBUNAL

WHO WE ARE

The Financial and Consumer Services Tribunal is a quasi-judicial body that provides independent

adjudication and oversight in the financial and consumer services sectors.

The Tribunal is currently made up of a part-time Chair and five other part-time members. The Tribunal

has two staff: the Registrar and the Assistant Registrar.

The Tribunal’s hearing room is located on the 3rd floor of 85 Charlotte Street in Saint John. The

Tribunal has the ability to conduct hearings elsewhere in the Province.

WHAT WE DO

Enforcement Proceedings

On July 8, 2016, the Tribunal’s authority to hear enforcement proceedings was broadened to 8

additional statutes, bringing it to a total of 10 at the date of publication of this report. The Tribunal

now hears enforcement proceedings under: the Securities Act, the Mortgage Brokers Act, the Collection

Agencies Act, the Co-operative Associations Act, the Credit Unions Act, the Direct Sellers Act, the

Insurance Act, the Pension Benefits Act; the Pre-arranged Funeral Services Act; and the Real Estate

Agents Act.

Applications

The Tribunal also hears applications on a wide range of topics under financial and consumer services

legislation.

Reviews and Appeals

The Tribunal hears appeals and reviews of decisions of the following decision-makers: (1) the Director

of Consumer Affairs, (2) the Director of Mortgage Brokers, (3) the Inspector and Registrar of

Cooperatives Associations, (4) the Superintendent of Credit Unions, (5) the Superintendent of

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 7

Insurance, (6) the Superintendent of Pensions, (7) the Superintendent of Loan and Trust

Companies, the (8) Financial and Consumer Services Commission, (9) the Executive

Director of Securities, and (10) an exchange, a self-regulatory organization, a quotation

and trade reporting system, a clearing agency, an auditor oversight body, a trade

repository or a derivatives trading facility under the Securities Act.

OUR MEMBERS The Tribunal is currently composed of six members, which represent the linguistic and

geographical realities of the province of New Brunswick. Members are appointed on a part-

time basis. A detailed biography of the Members is on the Tribunal’s website at www.fcnbtribunal.ca/

Judith Keating, Q.C., John M. Hanson, Q.C. Raoul Boudreau

Chair

Gerry Legere Don Moors Jean LeBlanc

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 8

The Tribunal’s Code of Conduct requires its members to maintain and enhance public confidence in

the integrity and competence of the Tribunal, the fairness and efficiency of hearings and the justice of

decisions rendered. The Tribunal also has a Conflict of Interest Policy which stipulates that Tribunal

members must act in a manner that ensures their integrity, objectivity and impartiality .

Both policies are available on the Tribunal’s website.

ORIENTATION AND

CONTINUING EDUCATION New Tribunal members must participate in a mandatory orientation session. In the past year, two new

members underwent orientation. The orientation covers the following topics:

the Tribunal’s hearing powers and the types of hearings,

the roles of Tribunal members and staff,

financial matters,

the Tribunal’s policies, directives and procedures,

the Tribunal’s procedural rules, and

the requirements of procedural fairness.

The Tribunal places high value on continuing education and Tribunal members are provided an annual

budget of $3,500 to pursue their education, which does not include travel and accommodation costs.

In the past year, Tribunal members and staff have attended such courses as the five day Interactive

Course in Adjudication and the 32nd Annual Symposium entitled Back to the Future - Redefining

Tribunal Excellence, both offered by the Council of Canadian Administrative Tribunals. Certain Tribunal

members also participated in the 9th Annual White Collar Crime Symposium.

Tribunal members as a group also attended the Principles of Administrative Justice offered by the

Foundation of Administrative Justice. Tribunal members also receive weekly e-mails on topics of

interest.

CODE OF CONDUCT

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 9

Bylaw No. 3 - Commission and Tribunal Remuneration provides the remuneration, retainers and services

fees payable to Tribunal members. The Tribunal Chair is paid an annual retainer of $15,000 while other

members receive an annual retainer of $5,000. In addition, the Tribunal Chair and members are paid a

service fee of $350 for matters done in connection with the business and affairs of the Tribunal.

Members also receive payment for time spent travelling for Tribunal business at the rate of $50 per 100

kilometers as further described in the policy Compensation for Tribunal Members.

The remuneration and expenses related to the Tribunal for the period of April 1, 2016 to March 31, 2017

are detailed below.

1 Ms. Caissie resigned effective September 1, 2016.

2 Mr. Scichilone’s term ended on November 20, 2015 but he remained an active member due to his involvement

in a hearing matter.

Member Appointed

or

reappointed

Term end Retainer Service

Fees

Allotment

for Travel

Time

Total

Remunera-

tion

Expense

Reimburse-

ment

and

Allowances

Judith

Keating, Q.C.

(Chair)

Nov. 3, 2016 Nov. 2,

2021

$6,155 $12,775 $1,400 $20,330 $2,593

Louise

Caissie1

(Chair)

Feb. 18,

2016

Feb. 17,

2021

$6,318 $7,700 $350 $14,368 $3,555

Raoul

Boudreau

Feb. 18,

2016

Feb. 17,

2021

$5,000 $6,825 $1,700 $13,525 $4,221

John M.

Hanson, Q.C.

Jan. 22,

2014

Jan. 21,

2019

$5,000 $7,000 $1,200 $13,200 $2,982

Jean

LeBlanc

Jan. 22,

2014

Jan. 21,

2017

$5,000 $9,625 $1,800 $16,425 $3,103

Gerry

Legere

Jan. 22,

2014

Jan. 21,

2018

$5,000 $10,150 $3,200 $18,350 $5,404

Don

Moors

Jan. 22,

2014

Jan. 21,

2017

$5,000 $7,525 $200 $12,725 $2,053

Enrico

Scichilone2

Nov. 21,

2012

Nov. 20,

2015

- $4,025 $200 $4,225 $163

REMUNERATION AND EXPENSES

FINANCIAL

INFORMATION

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 10

The service fees paid in the 2016-2017 fiscal year were in relation to the following activities:

(1) preparation for hearings,

(2) attendance at hearings,

(3) deliberations in relation to hearings,

(4) decision-writing, and

(5) meetings in relation to Tribunal administration.

The chart below shows the allocation of service fees between these activities.

ALLOCATION OF SERVICE FEES

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 11

HEARING ACTIVITY

HEARINGS

In the past year, the Tribunal had 6 active proceedings: three enforcement proceedings and two reviews

under the Securities Act, as well as an appeal under the Real Estate Agents Act. The Tribunal had a total of

9 hearing days and one pre-hearing conference.

These hearing days are broken down as follows:

three motions in enforcement proceedings,

one motion in a review,

one motion in an appeal,

two hearings in writing, and

one appeal on the merits.

On these proceedings, 50% involved self-represented parties. In the past fiscal year, 27% of all parties

that appeared before the Tribunal were self-represented.

The table below provides a summary of the Tribunal’s proceedings for the period of April 1, 2016 to

March 31, 2017:

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 12

DECISIONS

New Brunswick (Financial and Consumer Services Commission) v. Pierre Emond and Armel

Drapeau, 2016 NBFCST 3: A request for an adjournment of the hearing on the merits was denied.

New Brunswick (Financial and Consumer Services Commission) v. Pierre Emond and Armel

Drapeau, 2016 NBFCST 4: The location of the hearing on the merits was changed from Saint John

to Edmundston given that the majority of the parties and witnesses resided in that area.

Securities

Tribunal decisions are published on its website at fcnbtribunal.ca/decisions and on CanLII. Below is a

short summary of each decision and order.

New Brunswick (Armstrong v. Mutual Fund Dealers Association), 2016 NBFCST 5: An extension of

time for filing a Request for review was granted.

New Brunswick (Financial and Consumer Services Commission) v. Hurley et al., 2016 NBFCST 6: A

Settlement Agreement was approved. The respondent was ordered to permanently cease trading

in securities, with the exception of for her own account.

New Brunswick (Financial and Consumer Services Commission) v. Pierre Emond and Armel Drapeau,

2016 NBFCST 7: A request to have Affidavits previously filed in motions admitted into evidence at

the hearing on the merits was denied.

New Brunswick (Financial and Consumer Services Commission) v. Pierre Emond and Armel Drapeau,

2016 NBFCST 8: The Tribunal decided that it had lost jurisdiction to hear the matter in the

proceedings as a result of unreasonable delay causing prejudice to the respondents.

New Brunswick (Financial and Consumer Services Commission) v. Sebastian, 2016 NBFCST 9: An

order reciprocating an order of a panel of the Saskatchewan Authority was granted. The

respondent was ordered to permanently cease trading in securities in New Brunswick.

Armstrong v. Mutual Fund Dealers Association, 2017 NBFCST 1 : A Settlement Agreement was

approved in a review proceeding. The respondent was prohibited from conducting securities

related business in any capacity over which the Mutual Fund Dealers Association has jurisdiction

from September 2, 2011 until August 2, 2016 and ordered to pay $30,000 to a complainant.

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 13

In the past year, the Tribunal had two of its decisions appealed to the Court of Appeal: Fredericton Police

Association v. Superintendent of Pensions, 2016 NBFCST 2 and New Brunswick (Financial and Consumer

Services Commission) v. Pierre Emond and Armel Drapeau, 2016 NBFCST 8.

The appeal in the Fredericton Police Association matter was abandoned by the appellants. As a result,

the Court of Appeal did not hear the appeal and the Tribunal’s decision stands.

The Court of Appeal allowed the appeal in New Brunswick (Financial and Consumer Services

Commission) v. Pierre Emond and Armel Drapeau. The Court of Appeal found the Tribunal had the

jurisdiction to raise motions of its own initiative. However, the Court of Appeal concluded there was

insufficient evidence of prejudice to the respondents to justify the Tribunals’ decision that it had lost

jurisdiction to hear the matter as a result of unreasonable delay. The Court of Appeal sent the matter

back to the Tribunal for the hearing on the merits.

APPEALS OF TRIBUNAL DECISIONS

Real Estate

Estabrooks v. Director of Consumer Affairs, 2016 NBFCST 10 and Estabrooks v. Director of Consumer

Affairs, 2016 NBFCST 11: The Tribunal rendered an order and decision determining that it con-

ducts a hybrid appeal under the Real Estate Agents Act.

Estabrooks v. Director of Consumer Affairs, 2017 NBFCST 2: This was an appeal of a decision of the

Director of Consumer Affairs under the Real Estate Agents Act refusing to renew the respondent’s

real estate agent’s licence. The Tribunal found that Mr. Estabrooks should be granted a real estate

agent’s licence with terms and conditions. The Tribunal remitted the matter back to the Director

for the determination of those terms and conditions.

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 14

The Financial and Consumer Services Tribunal had several

initiatives and projects in the past year, which are detailed

TRIBUNAL

ACTIVITY

TAC

The Tribunal and the Financial and Consumer Services Commission created a Tribunal Administration

Committee to provide a forum for both Commission and Tribunal officials to discuss matters of

concern relating to the adjudicative, procedural and administrative responsibilities of the Tribunal and

to better define those responsibilities, reaching agreement where possible.

There were two meetings of the Committee in the past fiscal year.

WEBSITE

Tribunal staff once again dedicated considerable time to the ensuring the Tribunal’s website is efficient

and user-friendly for lawyers and self-represented parties. Separate sections for each type of

proceeding were created: enforcement, appeal and review. Each section provides detailed information

on how the proceeding usually unfolds.

The website focusses on improving access to justice and providing parties with detailed information

on the Tribunal’s processes.

RULES Tribunal members and staff pursued the multi-year project of redrafting the Tribunal’s procedural

rules. Fillable forms were also developed and they will be implemented upon adoption of the

procedural rules.

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 15

APPOINTMENTS

MEETINGS

Tribunal members had three meetings in the past year to discuss various Tribunal initiatives and to

obtain regulatory and legal updates.

The terms of members Don Moors and Jean LeBlanc expired on January 22, 2017. They continue in

office pending the appointment of their replacements pursuant to section 34 of the Financial and

Consumer Services Commission Act. Judith Keating, Q.C. was appointed the new chair on November 3,

2016. The Tribunal has offered recommendation for and is awaiting new appointments.

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 16

ONGOING

ENDEAVORS

HEARING ACTIVITY

Increased hearing activity is anticipated in the upcoming fiscal year. The Tribunal expects hearing

activity in non-securities areas to increase, and in particular appeals or reviews of regulator’s decisions.

WEBSITE The Tribunal’s website is being completely updated to reflect the Tribunal’s new Rules of Procedure,

which should be adopted in the fall of 2017. The website is also being redesigned to make it easier to

navigate for self-represented parties. The Tribunal strives to ensure its website promotes access to

justice.

RULES

The Tribunal’s proposed new Rules of Procedure should be adopted in the fall of 2017. Fillable forms

for the various types of proceedings have been developed and they will be available on the Tribunal’s

website upon adoption of the procedural rules. These forms should greatly assist self-represented

parties in presenting their case or defence to the Tribunal.

APPOINTMENTS

The term of Gerry Legere will expire on January 21, 2018. The Tribunal has expressed its need for le-

gally trained bilingual members as well as greater gender diversity.

POLICIES

The Tribunal Chair and Registrar will undertake a review of all Tribunal policies, directives and proce-

dures to ensure they are up to date. This includes the Tribunal’s privacy policy, its Code of Conduct

and the Conflict of Interest Policy.

FINANCIAL AND CONSUMER SERVICES TRIBUNAL ANNUAL REPORT 2016-17 17

PUBLICATION

The Tribunal intends to prepare a brochure in the upcoming year providing information on the Tribu-

nal and its processes. This brochure will primarily target licensees and registrants of the various sectors

administered by the Tribunal.