The Financial and Consumer Services Tribunal is an administrative tribunal created by the Financial and Consumer Services Commission Act [Act]. It has been in operation since July 1, 2013. The Tribunal has broad adjudicative powers that make it a quasi-judicial administrative tribunal, which includes several “court-like” powers. The Tribunal is also granted powers under financial and consumer services legislation. In addition, the Tribunal’s procedural rules, Local Rule 15-501 Proceedings before the Tribunal, grant it certain procedural powers.
The Financial and Consumer Services Tribunal has three main roles:
It conducts enforcement proceedings hearings under:
the Collection Agencies Act;
the Co-operative Associations Act;
the Credit Unions Act;
the Direct Sellers Act;
the Insurance Act;
the Mortgage Brokers Act;
the Pension Benefits Act;
the Pre-arranged Funeral Services Act;
the Real Estate Agents Act; and
the Securities Act.
It conducts appeals and reviews of decisions of the following regulators:
The Superintendent of Insurance under the Insurance Act,
The Superintendent of Pensions under the Pension Benefits Act,
The Director of Consumer Affairs under the Auctioneers Licence Act, the Collection Agencies Act, the Cost of Credit Disclosure Act, the Direct Sellers Act, the Pre-arranged Funeral Services Act, and the Real Estate Agents Act,
The Inspector of Co-operative Associations and the Registrar under the Co-operative Associations Act,
The Executive Director of Securities under the Securities Act,
The Director of Mortgage Brokers under the Mortgage Brokers Act,
The Superintendent of Credit Unions under the Credit Unions Act, and
The Superintendent of Loan and Trust Companies under the Loan and Trust Companies Act.
It conducts applications under various pieces of legislation, including applications providing an opportunity to be heard.
Subsection 39(1) of the FCSC Act currently provides that a hearing panel is made up of at least two members. However, the Tribunal has developed a practice whereby all contested matters are assigned three members to ensure a majority decision.
The Tribunal’s general authority is set out in section 37 of the Act which states that the Tribunal may exercise any powers imposed on it under financial and consumer services legislation and shall perform any duties imposed on it under financial and consumer services legislation.
According to section 41 of the Act, the Tribunal may make an order under financial and consumer services legislation against a person despite the fact that the person’s registration, licence or permit has expired, been cancelled or been surrendered.
Pursuant to subsection 38(5) of the Act, the Tribunal may decide all questions of fact or law arising in the course of a hearing. This includes determining whether it has the jurisdiction to hear a matter.
In addition to its procedural rules, the Tribunal’s hearing powers are detailed below.
Subsection 38(1) of the Act states that when the Tribunal holds a hearing, it has the same power as the Court of Queen’s Bench for the trial of civil actions regarding witnesses and experts in relation to:
summoning and enforcing the attendance of witnesses,
compelling witnesses to give evidence under oath or in any other manner, and
compelling witnesses to produce documents.
In addition, pursuant to subsection 38(2) of the Act, the failure or the refusal of a person to comply with an order or direction of the Tribunal in relation to attendance at a hearing, taking an oath at a hearing, answering questions at a hearing or producing documents makes the person liable to be committed for contempt on application to the Court of Queen’s Bench by the Tribunal.
Pursuant to subsection 43(1) of the Act, the Tribunal has the same powers as the Court of Queen’s Bench for the trial of civil actions respecting the appointment of experts to inquire into and report on any question of fact or opinion relevant to the issues in the proceeding. The Tribunal has the following powers regarding expert witnesses:
summoning and enforcing the attendance of a witness before an expert,
compelling a witness to give evidence under oath or in any other manner before an expert, and
compelling a witness to produce documents to an expert.
Subsection 43(2) of the Act provides that a person who fails to comply with an order of the Tribunal may be liable for contempt upon application of the Tribunal to the Court of Queen’s Bench.
Subsection 38(6) of the Act deals with the admissibility of evidence before the Tribunal and recognizes that the Tribunal’s rules of evidence are more relaxed than those of civil or criminal courts. That subsection states that the Tribunal may receive in evidence any statement, document, record, information or thing that, in the opinion of the Tribunal, is relevant to the matter before it, regardless of whether it is given or produced under oath or would be admissible as evidence in a court of law.
The Tribunal may hold hearings in or outside New Brunswick pursuant to subsection 38(3) of the Act. While the Tribunal usually holds its hearings in Saint John, the location of the hearing may be moved upon application of a party that demonstrates that another location is a more appropriate location for the hearing.
In addition, subsection 38(4) of the Act permits the Tribunal to hold hearings in conjunction with other bodies. This may happen where an individual is the subject of disciplinary proceedings in multiple jurisdictions.
The Tribunal has a limited authority to order the payment of costs by a party. Subsection 44(1) of the Act states that the Tribunal “may order a person whose affairs were the subject of the hearing to pay the fees and expenses set out in the rules of the Commission for the costs of any investigation and the costs related to the hearing that were incurred by or on behalf of the Commission if the Tribunal:
is satisfied that the person has not complied with financial and consumer services legislation, or
is of the opinion that the person has not acted in the public interest when a duty to act in the public interest is imposed on the person by financial and consumer services legislation.
The Tribunal’s authority to order costs is applicable only in enforcement proceedings and possibly licensing appeals where the public interest is at play. The authority does not extend to other types of appeals.
In addition, the costs ordered are not party and party costs or solicitor-client costs as may be ordered by the Court of Queen’s Bench. In fact, subsection 44(6) of the Act expressly states that the Rules of Court with respect to costs and the taxation of costs do not apply to costs which may be ordered by the Tribunal. Rather, the costs ordered by the Tribunal represent the investigation costs and costs related to the hearing incurred by the Commission.
Finally, costs cannot be ordered against the Financial and Consumer Services Commission.
The Tribunal has the power to make an order revoking or varying its previous decisions pursuant to section 42 of the Act. This is a limited power which applies only on the application of the Commission, a regulator or a person directly affected by the decision of the Tribunal. In considering such an application, the Tribunal must be satisfied that the order would not be prejudicial to the public interest.
The intent of this section is to permit the Tribunal to revoke or vary an order or decision where the parties or interested persons can show a change in circumstance.