Carla Outten-Minnis v The Insurance Commission of the Bahamas

JurisdictionBahamas
JudgeMoree, CJ
Judgment Date14 December 2021
Docket Number2020/APP/sts/No.00015
Year2021
CourtSupreme Court (Bahamas)

IN THE SUPREME COURT

Before:

Chief Justice Sir Brian M. Moree, Kt.

2020/APP/sts/No.00015

In the Matter of the Insurance Act, Chapter 347 of the revised laws of the Bahamas

Between
Carla Outten-Minnis
Appellant
and
The Insurance Commission of the Bahamas
Respondent
Appearances:

Ms. Dwana Davis with Ms. Palincia Hunter for the Appellant

Mr. Frederick Smith QC with Mr. R. Dawson Malone and Ms. Kandice Maycock for the Respondent

RULING
Moree, CJ
Introduction
1

This case is an appeal by Ms. Carla Outten-Minns (“ Ms. Outten-Minns” or “the Appellant”) from a decision of the Insurance Commission of The Bahamas (“ the Commission or “ the Respondent”) under section 228 of the Insurance Act (“ the Act”). I am not dealing with the appeal itself at this time but with three applications which all arose shortly before the scheduled date for the main hearing of the appeal.

2

There is a fourth application which I heard on 15 November, 2021 and reserved my decision. I will give my decision on that application in a separate Ruling.

3

It is important to limit the scope of this Ruling to only those matters which are necessary to dispose of the three pending applications to avoid trespassing into issues which are properly left for the hearing of the appeal.

4

Accordingly, I will only provide a brief summary of the proceedings and the factual background before dealing with the three applications.

Procedural Background
5

This case was commenced by the Notice of Originating Motion filed on 29 July, 2020 (“ the Appeal” or “the NOM”) to appeal ‘“….the determination of [the Commission] notified to the Appellant by letter dated 28 th May, 2020 whereby it proposes to cancel the registration of the Appellant as an Insurance Salesperson effective the 31 st day of July, A.D., 2020.”

6

On the same date, 29 July, 2020, the Commission gave an undertaking which was accepted by the Appellant in these terms:

“While reserving all rights in all respects and without prejudice to any objection procedurally, jurisdictionally or otherwise, the Insurance Commission undertakes not to cancel Carla Outten- Minnis' registration as an insurance salesperson pending determinationof the appeal or upon withdrawal of this undertaking upon 14 days' notice to Counsel for Carla Outten-Minnis.”

7

Accordingly, the registration of Ms. Outten-Minnis has not been cancelled and at this time she continues to be a registered insurance salesperson under the Act.

8

As a result of case management directions by the court, the hearing of the Appeal was fixed for three days in December, 2021.

9

At the proverbial eleventh hour, four applications were made which had to be dealt with prior to hearing the Appeal. The first in time was an application by Summons filed on 13 October, 2021 on behalf of the Appellant seeking to strike out significant parts of the Affidavit of Ms. Lorna Longley-Rolle filed on 30 March, 2021 (“ the Strike out Application”). The second application was a preliminary point raised at the Bar by counsel for the Commission at the beginning of the hearing on 18 October, 2021 challenging the jurisdiction of the court to hear the Appeal (“ the Preliminary Point'). The third application was the Summons filed on 18 October, 2021 by the Appellant seeking orders that if it is determined that the filing of the Appeal was out of time under Order 55 rule 4(2) of the Rules of the Supreme Court (“ the RSC”) (i) any delay in filing the Appeal is an irregularity under the RSC; or in the alternative (ii) an extension of time be granted to file the Appeal (“ the Irregularity/EOT Application”). The fourth application was the Appellant's Summons filed on 22 October, 2021 seeking an order to amend the NOM (“ the Amendment Application”).

10

I heard the Preliminary Point, the Irregularity/EOT Application and the Amendment Application (collectively “ the Three Applications”) over three days on 18, 20 and 22 October, 2021 and gave my oral decision on those applications at the hearing on 15 November, 2021 with written reasons to follow. I did not accept the Preliminary Point and held that while the Appeal had been filed out of time, that was an irregularity under the RSC and the Commission had waived the irregularity by taking a fresh step in the proceedings. I granted leave for the Appellant to amend the NOM as sought in the Summons filed 22 October, 2021 save for the proposed new claim for a Declaration which was not allowed. I now give my reasons for those decisions.

11

Pursuant to my order granting leave to amend the NOM, the Appellant filed the Amended Notice of Originating Motion on 18 November, 2021 and the Appeal will now proceed on the basis of that amended originating document.

Factual Background
12

Ms. Outten-Minns is currently a registered insurance salesperson with the Commission under the provisions of the Act. The Commission is an independent regulatory agency with responsibility for regulating all insurance activity in and through The Bahamas.

13

The Appellant signed an Agent Agreement with Colina Imperial Insurance Ltd. (“ Colina”) whereby she was appointed as an Agent of the company effective as of 1 August, 2007. Subsequently, on 4 November, 2016 Colina terminated the appointment for what is termed “lapping.” In her Affidavit filed on 30 March, 2021 Ms. Lorna Longley-Rolle, the internal Legal Counsel of the Commission, defined “lapping” as “…a fraudulent practice whereby an employee diverts a payment made by one customer to cover a missing payment from another customer.” Ms. Outten-Minnis stoutly denies that she was involved in “lapping”.

14

Based on the information received from Colina relating to the termination of the Agent Agreement with Ms. Outten-Minnis, the Commission launched its own independent investigation into whether the Appellant's registration as a salesperson should be cancelled. Ultimately, after a period of dealings between the parties with regard to the investigation, the Commission informed the Appellant by letter dated 28 May, 2020 (“ the Cancellation Letter”) that it had concluded that:

The Cancellation Letter stated that for those reasons the Commission proposed to cancel her registration as an insurance salesperson effective 31 July, 2020. It also stated that at any time prior to 31 July, 2020, the Appellant had the right to submit a written request for the Commission to reconsider its decision stating the reasons why her registration as a salesperson should not be cancelled. Finally, the letter advised Ms. Outten-Minnis of her right of appeal under section 228 of the Act.

  • (i) she had breached section 126(2)(b)(ii) of the Act by carrying on insurance business otherwise than in accordance with sound insurance principles and practices; and

  • (ii) she had demonstrated that she was not a fit and proper person for continued registration as an insurance intermediary pursuant to section 126(2)(b)(vi) of the Act.

15

Counsel for the Appellant wrote to the Commission on 20 July, 2020 acknowledging receipt of the Cancellation Letter and responding to a number of the matters set out therein. He requested that Ms. Outten-Minnis be provided with the documentary evidence that was relied on by the Commission in coming to its conclusion expressed in the Cancellation Letter that she was “…. carrying on insurance business otherwise than in accordance with sound insurance principles and practices pursuant to s. 126(2)(b)(ii) [of the Act] and that [she was] not a fit and proper person for continued registration as an insurance intermediary pursuant to s. 126(2)(b)(vi) [of the Act.]” Counsel also requested that no steps be taken to cancel his client's registration until there is “…. a fair and proper hearing…” to give her an opportunity to respond to the evidence. The letter concluded by stating that if a response from the Commission was not received within five business days, Ms. Outten-Minnis would commence legal proceedings in the Supreme Court to appeal the “… the decision to cancel our Client's Registration as outlined in [the Cancellation letter].”

16

The Commission responded to the letter on 27 July, 2020 asserting that its process was fair to Ms. Outten-Minnis and maintaining that she had been provided with “…. all information that the Commission was capable of disclosing.” The letter notes that a request for a reconsideration had not been made and states that the opportunity to do so remained open until 31 July, 2020.

17

On 29 July, 2020 the Appellant's counsel once again wrote to the Commission stating in part that “…… there is no basis for us to ask for reconsideration as you have not provided us with any new information/evidence that would allow for us to provide a different response from that which was already advanced in previous communications.” The letter concluded by stating that legal proceedings would be commenced and the relevant documents would be served on the Commission.

Steps taken in the action
18

On the same day, 29 July, 2020, Ms. Outten-Minnis commenced this action by filing the Appeal and her supporting Affidavit.

19

The Respondent filed a Memorandum of Appearance on 30 July, 2020 and later filed the Affidavit of Lorna Longley-Rolle on 30 March, 2021 (“ the Longley — Rolle Affidavit”). In paragraph 1 of that Affidavit Ms. Longley-Rolle states that the Affidavit is “….in response to the Appellant's appeal brought by way of Notice of Originating Motion and the supporting Affidavit… … both filed… on July 29, 2020 against the Commission's decision to cancel her registration as an insurance salesperson.” Additionally, counsel for the Commission filed on 21 September, 2021 the Notice of Intention to Cross Examine the Appellant.

20

A number of Affidavits have been filed on behalf of the Appellant together with numerous Summonses and the Notice of Intention to Cross Examine Ms. Longley Rolle.

21

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