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Collection Agencies (Ontario)
Legal Guide
Chapter 5 - CADSSA Appeal Procedures- Overview
(a) Appealable Registrar Actions
(b) 'Notices of Proposal' versus Orders
- LAT Hearing Procedures
(a) Overview
(b) Tribunal Orders
(c) Stays of Registrar Orders Pending Appeal
(d) Evidence
. Overview
. Director's Certificates
. Admissibility of Certified Copies
- Appeal of Tribunal Orders to the Divisional Court
- Service of Notices and Orders
1. Overview
(a) Appealable Registrar Actions
There are three categories of Registrar actions which can be appealed to a hearing before the License Appeal Tribunal (LAT). These are:- a Notice of Proposal to refuse an initial application for registration, to refuse a renewal of existing registration or to suspend or revoke registration [CADSSA s.7(1,2)] (these decisions are discussed in Ch.3: "Registration and Regulation of Collection Agencies under the CADSSA");
- an Order to the collection agency to "alter, amend, restrict or prohibit" the use of "letters, forms, form letters, notices, pamphlets, brochures, advertisements, contracts, agreements or other similar materials" that are "harsh, false, misleading or deceptive" [CADSSA s.21] (discussed in Ch.4: "Prohibited Practices under the CADSSA"); and
- an Order to the collection agency to cease the use of "false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material" [CADSSA 25] (discussed in Ch.4).
Traditionally under the common law such things as commercial licences and registrations are diligently protected by the courts, which required full due process and appeal rights before refusal or revocation. These requirements, which are the topic of this chapter, have been codified in the Collection and Debt Settlement Services Act and are applicable to both registrations and to the other orders (listed above) that can be made against collection agencies under the CADSSA.
(b) 'Notices of Proposal' versus Orders
Take care to note the distinction here between a Registrar's 'Notice of Proposal' and a Registrar's 'Order' (both as set out in s.1 above).
The Notice requirement only apply to refusals of an initial application for registration, to refusals to renew an existing registration, and decisions to suspend or revoke registration. In these cases the Notice precedes the actual decision, and the Notice must contain written reasons justifying the 'proposal' [CADSSA 8(1)]. Such notice shall advise the applicant/registrant that they can require a hearing of the issue if, within 15 days after receiving it, they mail or deliver to both the Registrar and the Licence Appeal Tribunal, written notice to that effect [CADSSA 8(2)]. If the applicant/registrant does not so require a hearing then the Registrar may carry out the decision [CADSSA 8(3)].
Orders, on the other hand, are - until later reversed by appeal or stayed (see Ch.5: "CADSSA Appeal Procedures") legally effective as per their own stated terms (typically immediately).
The key point is that where the Notice procedure applies, what is being appealed is the 'proposal', rather than any firm Order. So an 'appeal' of a Notice of Proposal is more in the nature of a hearing to confirm the proposal, and no stay (suspension) is required. On the other hand, for an Order to be suspended pending appeal a stay must be sought. Stays are discussed in s.3(c) below.
2. LAT Hearing Procedures
(a) Overview
Hearings before the Licence Appeal Tribunal are governed by common law principles of natural justice and as well by specific rules established under:Normally the parties to such a hearing are the applicant or registrant (as the case may be) and the Registrar, however the LAT has authority to add other parties as it sees fit [CADSSA 8(6)].
(b) Tribunal Orders
With respect to Notice proceedings, the LAT has jurisdiction to order the Registrar to either: carry through with the decision set out in the Notice, or to refrain from so doing and to "take such action as the Tribunal considers the Registrar ought to take" [CADSSA 8(4)]. With respect to Orders, the Tribunal can affirm or revoke the Order made [CADSSA 21(2),25].
In either case the Tribunal can also add terms and conditions - as it thinks appropriate - to it's Order, any resulting registration, or both [CADSSA 8(5)].Note:
The text of CADSSA 8(4) is, in my opinion, awkwardly worded and if read literally only authorizes the Tribunal to grant an appeal "on application of the Registrar". That reading appears to result in an absurdity so I have read it in it's logical sense, which grants the Tribunal jurisdiction to order the Registrar to refrain from carrying through with it's proposed refusal, suspension or revocation (ie. to grant an appeal on appeal by an affected party). (c) Stays of Registrar Orders Pending Appeal
In the case of an appeal of a Registrar's Order, "the Tribunal may grant a stay until the Registrar’s order becomes final." [CADSSA 21(2),25].
As is discussed in s.1(b) above, an appeal of a Notice of Proposal does not require the issuance of a stay to avoid the Order being effective while the appeal is resolved, since no Order has yet been made. However, in the case of an appeal of a Registar's Notice of Proposal to refuse to grant a renewal, the registration continues until such time as the LAT disposes of it by Order [CADSSA 8(8)].
(d) Evidence
. Overview
Evidence rules in appeals before the LAT are governed by the normal evidence rules applicable to all Ontario administrative tribunals, and they are discussued generally at this link:
Adminstrative Law (Ontario): Ch.6 "Evidence"
Some specific evidence rules that apply before the LAT follow.
. Director's Certificates
A certificate from the Director of Collection Agencies, confirming any of the following, is rebuttable proof of the facts stated therein [CADSSA 29]:- the registration or non-registration of any person;
- the filing or non-filing of any document or material required or permitted to be filed with the Registrar;
- the time when the facts upon which proceedings are based first came to the knowledge of the Director; or
- any other matter pertaining to such registration, non-registration, filing or non-filing.
. Admissibility of Certified Copies
Copies of documents that are certified by an inspector (who is appointed by the Registrar) or an investigator (who is appointed by the Director) are "admissible in evidence to the same extent as the original and has the same evidentiary value" [CADSSA 13(7); 16(12)].
3. Appeal of Tribunal Orders to the Divisional Court
Parties aggrieved by an Order of the Tribunal may appeal it, without leave, to the Divisional Court [LATA s.11]. Procedures for such appeals are set out in s.61 of the Rules of Civil Procedure.
On such an appeal, the Tribunal Order appealed from takes effect as per it's terms, subject to the Tribunal's authority to grant a stay pending appeal [CADSSA 8(9)]. Such a stay could be requested by a party at the close of a hearing on a 'just in case we lose' basis, or by motion under SPPA s.16.1. Parallel jurisdiction for stays resides with the Divisional Court under Rules of Civil Procedure R63.02(1), though in my opinion - both as a practical (costs) and as a legal matter (prematurity) - it is best to first seek the stay from the Tribunal.
4. Service of Notices and Orders
Any Notice or Order required under the CADSSA or its Regulation may be served personally on the recipient, or sent by registered mail to the latest address appearing on the Ministry's records [CADSSA 26(1)]. Service by registered mail is effective on the third day after mailing, "unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control receive the notice or order until a later date" [CADSSA 26(2)].
The LAT also has authority to order any other form of service, or to 'regularize' (approve despite technical non-compliance) past service in respect of any matter before it [CADSSA 26(3)].
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