Republished with permission from the Insurance Brokers Association of Alberta’s magazine The Alberta Broker (Dec/Jan 2025).
Where an insurance agent in Alberta finds themselves facing a complaint, the complaint may pass through a series of administrative and adjudicative processes before a final decision is made. Recently, one such complaint wound its way through these processes, from the General Insurance Council (the “Council”), through an appeal to Insurance Councils Appeal Board of Alberta (the “Appeal Board”), through a further appeal to the Alberta Court of King’s Bench (the “Court”), and back for a final decision from the Appeal Board. The Court, for its part, provided valuable commentary on the role of administrative tribunals and how they may or may not use their industry expertise or knowledge in carrying out some of their adjudicative functions.
General Insurance Council v Bentley[1]
A complaint was brought against an insurance agent, Anthony Bentley, related to conduct allegedly in contravention of s 480(1) and s 509(1) of the Insurance Act.[2] Section 480(1)(a) states:
Sanctions affecting certificates
480(1) If the Minister is satisfied that the holder or a former holder of a certificate of authority
(a) has been guilty of misrepresentation, fraud, deceit, untrustworthiness or dishonesty,
…
the Minister may revoke, suspend or refuse to renew or reinstate one or more of the certificates of authority held by the holder, impose terms and conditions provided for in the regulations on one or more of the certificates of authority held by the holder and impose a penalty on the holder or former holder.
Section 509(1) states:
Unfair practices
509(1) No insurer, insurance agent or adjuster may
(a) make a false or misleading statement, representation or advertisement,
(b) engage in a tied selling practice prohibited by the regulations,
(c) engage in any unfair, coercive or deceptive act or practice, or
(d) make any statement or representation or commit any practice or act that is prohibited by the regulations.
The complaint against Mr. Bentley alleged, among other things, that despite being instructed by his brokerage firm to stop writing policies, he nevertheless continued to complete applications and issue temporary pink cards for motor vehicle insurance.[3] The brokerage alleged that Mr. Bentley failed to submit the insurance applications and supporting documentation as required, meaning that, although clients were receiving temporary pink cards from Mr. Bentley to suggest that they had coverage, they, in fact, did not.[4] Mr. Bentley disputed the allegations.
At the initial adjudication before the Council, the Council found that an offence under s 480(1)(a) had been established.[5] Mr. Bentley appealed the Council’s decision to the Appeal Board.
On this appeal, the Council argued that Mr. Bentley had breached s 480(1)(a) in the issuance of the unsupported pink cards and, alternatively, that the same conduct constituted a breach of s 509(1).[6] Mr. Bentley argued that he followed the usual procedure for an agent and did submit the necessary information to support the clients’ applications.[7] In its decision, the Appeal Board found that the evidence was insufficient to establish the offence under s 480(1)(a); however, the Appeal Board did not consider whether the evidence nevertheless proved the offence under s 509(a).[8] On the basis of this omission, the Council appealed the Appeal Board’s decision one level further to the Court.
The Court found that the Appeal Board was obliged as a matter of law to answer the unanswered question regarding the s 509(a) offence, and as a result, the Court sent this question back to the Appeal Board to answer.[9]
Judicial Notice by Administrative Tribunals
In making its case before the Court, the Council had also argued that the Appeal Board erred in how it treated certain evidence—or rather, how it treated a lack of evidence. The Council argued that the Appeal Board wrongfully took ‘judicial notice’ of challenges allegedly experienced by Mr. Bentley with a particular insurance company’s application portal, which Mr. Bentley had said was slow and cumbersome and caused delays.[10] In its decision, the Appeal Board found that it was “well known to the Panel’s industry members” that the particular portal was problematic and had lengthy turnaround times.[11] The Appeal Board gave these portal issues significant weight in their decision.[12] On appeal to the Court, the Council argued that the Appeal Board accepted these ‘challenges’ as fact without sufficient evidence.
The Court agreed and provided an explanation of the doctrine of judicial notice:
The doctrine of judicial notice is an exception to the rule that all matters relevant to an action must be established by formal proof. Where a fact is so notorious or generally accepted to be uncontroverted such that it cannot reasonably be doubted, the doctrine of judicial notice permits the court to consider that fact, without formal proof of that fact. The threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.[13]
When the doctrine applies to administrative tribunals, it is slightly modified. As the Court described, administrative tribunals like the Appeal Board “have a level of expertise and knowledge about the matters before them in order to efficiently dispatch their statutory obligations. Tribunals have a broader ability than courts, to take judicial notice of background facts within their areas of expertise”.[14] The Court recognized that the Appeal Board operated within an industry-specific framework and that tribunal members are specialists in that area, giving them “greater latitude in the areas in which they can take judicial notice”.[15]
However, in this case, the Appeal Board inadequately justified their judicial notice with contextual detail—essentially, the Appeal Board did not identify the other supporting facts that made this particular one worthy of judicial notice.[16] The Court was left wondering: “Was there a widely known legal proceeding in the insurance industry where this issue was discussed and proven? Was it known within the insurance industry that [the insurer’s] computers were slow? What time date range did this apply to? What geographic area did this computer problem apply to? And what was the problem? Was it that the portal was slow, so applications took longer?”[17]
The Court also found that the Appeal Board had breached procedural fairness by taking judicial notice of this material fact without providing advance notice of its intent to do so to the parties, who could make argument or lead additional evidence.[18] For these and other reasons, the Court found that the Appeal Board had erred on this issue. As a result, the Council’s appeal was granted, and the question regarding s 509(1) was sent back to the Appeal Board for reconsideration.
The Take-Away
The Court’s reasons in Bentley affirm the law on judicial notice as it applies to tribunals and reiterates the role that industry expertise has to play in these administrative frameworks. Even though the Court took issue with the Appeal Board’s approach to judicial notice in this instance, the result in Bentley nevertheless represents the breadth of the doctrine, not its limitations.
[1] 2024 ABKB 16 [Bentley].
[2] RSA 2000, c I-3.
[3] Bentley at para 8.
[4] Bentley at para 8.
[5] Bentley at para 24.
[6] Bentley at paras 28-29.
[7] Bentley at para 31.
[8] Bentley at para 37.
[9] Bentley at para 50.
[10] Bentley at paras 53-55.
[11] Bentley at para 53.
[12] Bentley at para 63.
[13] Bentley at para 56 (citations omitted).
[14] Bentley at para 57.
[15] Bentley at para 58.
[16] Bentley at para 61.
[17] Bentley at para 61.
[18] Bentley at para 62.
