Bill 65 - Mortgage Brokers Act

BILL 65

Mortgage Brokers Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

PRELIMINARY MATTERS

Definitions

1( 1) The following definitions apply in this Act.

“borrower” includes a prospective borrower. (emprunteur)

“Commission” means the Financial and Consumer Services Commission continued under the Financial and Consumer Services Commission Act. (Commission)

“compliance officer” means a person appointed as a compliance officer under section 58. (agent de conformité)

“Court of Queen’s Bench” means The Court of Queen’s Bench of New Brunswick. (Cour du Banc de la Reine)

“Director” means the Director of Mortgage Brokers appointed under the Financial and Consumer Services Commission Act and includes any person designated by the Commission or the Director to act on the Director’s behalf. (directeur)

“endorsement” means an endorsement on a mortgage brokerage licence that grants the licence holder the right to receive and hold trust money and that is not suspended or cancelled. (inscription)

“investigator” means a person appointed as an investigator under section 63. (enquêteur)

“investment in a mortgage” means the acquisition of an interest in a mortgage by an investor and includes the lending of money on the security of a mortgage. (placement hypothécaire)

“investor” means a person that makes an investment in a mortgage. (investisseur)

“licence” means a licence granted under this Act that is not suspended or cancelled. (permis)

“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“mortgage” means any charge on real property or on an interest in real property for the purpose of securing the repayment of money or other consideration, and includes a mortgage of a mortgage. (hypothèque)

“mortgage administrator” means a person that carries on the business of administering mortgages. (administrateur d’hypothèques)

“mortgage associate” means an individual who brokers mortgages on behalf of a mortgage brokerage as an employee or otherwise. (associé en hypothèques)

“mortgage broker” means an individual who (courtier en hypothèques)

(a) brokers mortgages on behalf of a mortgage brokerage as an employee or otherwise, and

(b) meets the criteria prescribed by regulation to act as a supervisor for a mortgage associate.

“mortgage brokerage” means a person that carries on the business of brokering mortgages. (maison de courtage d’hypothèques)

“principal administrator” means an individual designated as a principal administrator by a mortgage administrator under section 31. (administrateur principal)

“principal broker” means an individual designated as a principal broker by a mortgage brokerage under section 23. (courtier principal)

“private investor” means a private investor as defined in the regulations. (investisseur privé)

“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule. (règlement)

“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the brokering or administering of mortgages. (organisme de réglementation)

“required fee” means a fee prescribed by a rule made under paragraph 59(1)(a) of the Financial and Consumer Services Commission Act that (droits exigibles)

(a) is payable for services provided by the Commission or an employee of the Commission under this Act or the regulations, or

(b) is payable in connection with the administration of this Act or the regulations.

“rule” means a rule made under section 89, or if the context requires, a rule made under the Financial and Consumer Services Commission Act. (règle)

“Tribunal” means the Financial and Consumer Services Tribunal established under the Financial and Consumer Services Commission Act. (Tribunal)

“trust money” means any money received by a mortgage brokerage or a mortgage administrator, but does not include money that is clearly made as payment to the mortgage brokerage or mortgage administrator for fees or other remuneration earned by the mortgage brokerage or mortgage administrator, as the case may be. (somme en fiducie)

“trust property” means (bien fiduciaire)

(a) trust money, and

(b) a mortgage held in trust.

1( 2) For the purposes of this Act, a person is considered as carrying on business in the Province if

(a) the person solicits potential clients or provides, promotes, advertises, markets, sells or distributes any products or services by any means that cause communication from the person or the person’s agents or representatives to reach a person in the Province,

(b) the person has a resident agent or representative or maintains an office or place of business in the Province,

(d) the person otherwise carries on business in the Province.

1( 3) For the purposes of this Act, a person brokers mortgages if the person engages in one or more of the following activities:

(a) soliciting another person to obtain a mortgage loan or to make an investment in a mortgage, but only if the soliciting is done on behalf of another person;

(b) negotiating or arranging a mortgage loan or an investment in a mortgage on behalf of another person;

(c) providing advice to a person with respect to the appropriateness of obtaining a particular mortgage loan or making a particular investment in a mortgage;

(d) undertaking any other activity prescribed by regulation.

1( 4) For the purposes of this Act, a person administers mortgages if the person, on behalf of an investor, engages in one or more of the following activities:

(a) receiving payments made by a borrower and remitting those payments to the investor;

(b) monitoring the performance of a borrower with respect to his or her obligations under the mortgage;

(d) undertaking any other activity prescribed by regulation.

1( 5) For the purposes of this Act, a mortgage is held in trust if held in the name of a mortgage administrator, but only if another person

(a) holds an interest in that mortgage, or

(b) is entitled to share in the proceeds of that mortgage.

Non-application of Act

2( 1) This Act or any provision of it does not apply

(a) to any person or class of persons prescribed by regulation, or

(b) to any person or class of persons exempted from the application of the Act or provision by an order of the Director made under subsection 3(1).

2( 2) A person exempted under paragraph (1)(a) from the application of this Act or any provision of it shall comply with any terms or conditions prescribed by regulation.

Exemptions

3( 1) If the Director considers it appropriate to do so, the Director may, by order and subject to any terms and conditions the Director considers appropriate, exempt any person or class of persons from the application of this Act or any provision of it or from the application of the regulations or any provision of them.

3( 2) An order under subsection (1) may be made on the Director’s own motion or on the application of an interested person.

3( 3) An order under subsection (1) may be retroactive in its operation.

3( 4) A person to whom an order under subsection (1) applies shall comply with the terms and conditions imposed by the Director under that subsection.

Delegating powers and duties

4( 1) The Director may in writing delegate his or her powers or duties under this Act or the regulations to an employee of the Commission.

4( 2) The Director may, in a written delegation under subsection (1),

(a) impose on the delegate terms and conditions that the Director considers appropriate, and

(b) authorize the delegate to subdelegate in writing the powers or duties to another employee of the Commission and to impose on the subdelegate any terms and conditions that the delegate considers appropriate, in addition to those imposed in the Director’s written delegation.

4( 3) A delegate or subdelegate to whom this section applies shall comply with any terms and conditions imposed in the Director’s written delegation.

4( 4) A subdelegate to whom this section applies shall comply with any terms and conditions imposed on the subdelegate by the delegate.

4( 5) A decision, ruling, order, temporary order or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision, ruling, order, temporary order or direction of the Director.

PART 2

LICENSING

Licence required

5( 1) No person shall carry on the business of brokering mortgages, or hold itself out as doing so, unless that person holds a mortgage brokerage licence.

5( 2) No individual shall broker mortgages on behalf of a mortgage brokerage, as an employee or otherwise, or hold himself or herself out as doing so, unless the individual

(a) holds a mortgage broker’s licence or a mortgage associate’s licence, and

(b) is acting on behalf of the mortgage brokerage named on his or her licence.

5( 3) No person shall carry on the business of administering mortgages, or hold itself out as doing so, unless that person holds a mortgage administrator’s licence.

Endorsement required

6 No mortgage brokerage shall receive or hold trust money unless that mortgage brokerage

(a) holds a mortgage brokerage licence, and

(b) has been granted an endorsement by the Director.

Mortgage brokerage licence and endorsement

7( 1) Only a corporation, partnership or sole proprietorship is eligible to apply for a mortgage brokerage licence.

7( 2) A mortgage brokerage licence authorizes the licence holder to carry on the business of brokering mortgages.

7( 3) Only a mortgage brokerage that holds a mortgage brokerage licence is eligible to apply for an endorsement.

7( 4) An endorsement on a mortgage brokerage licence authorizes the licence holder to receive and hold trust money in the course of its mortgage brokerage business.

Mortgage broker’s licence

8( 1) Only an individual is eligible to apply for a mortgage broker’s licence.

8( 2) A mortgage broker’s licence shall state the name of the mortgage brokerage on behalf of which the licence holder brokers mortgages.

8( 3) A mortgage broker’s licence authorizes the licence holder to broker mortgages on behalf of the mortgage brokerage named on his or her licence.

Mortgage associate’s licence

9( 1) Only an individual is eligible to apply for a mortgage associate’s licence.

9( 2) A mortgage associate’s licence shall state the name of the mortgage brokerage on behalf of which the licence holder brokers mortgages.

9( 3) A mortgage associate’s licence authorizes the licence holder to broker mortgages on behalf of the mortgage brokerage named on his or her licence.

Mortgage administrator’s licence

10( 1) Only a corporation is eligible to apply for a mortgage administrator’s licence.

10( 2) A mortgage administrator’s licence authorizes the licence holder

(a) to carry on the business of administering mortgages,

(b) to receive and hold trust property in the course of that business, and

Application for a licence or an endorsement

11( 1) An applicant for a licence shall

(a) apply to the Director on the form provided by the Director,

(b) provide the Director with

( i) an address for service in the Province, and

( ii) any other information or material that the Director reasonably requires,

(c) if financial security is required under section 12, file financial security with the Director in accordance with that section,

(d) comply with any errors and omissions insurance requirements, any working capital requirements and any training and educational requirements that are prescribed by regulation,

(e) submit to the Director any required fee, and

(f) comply with any other requirements prescribed by regulation.

11( 2) An applicant for an endorsement shall

(a) apply to the Director on the form provided by the Director,

(b) if financial security is required under section 12, file financial security with the Director in accordance with that section,

(c) comply with any errors and omissions insurance requirements and any working capital requirements prescribed by regulation,

(d) submit to the Director any required fee, and

(e) comply with any other requirements prescribed by regulation.

11( 3) The Director may require an applicant to verify, by affidavit or otherwise, the authenticity, accuracy or completeness of any information or material submitted to the Director under this section.

Financial security may be required

12( 1) The Director may require

(a) an applicant for a licence or an endorsement to file financial security with the Director as part of the application,

(b) a licence holder whose licence has been suspended or that holds a suspended endorsement to file financial security with the Director before the licence or endorsement is reinstated, or

12( 2) Financial security filed under this section shall be made payable to the Commission.

12( 3) A person required to file financial security with the Director under this section shall, at all times, maintain the financial security.

12( 4) Financial security filed under this section shall be in the amount and in the form that the Director determines on a case-by-case basis following a financial review conducted by the Director and having regard to any factors prescribed by regulation.

12( 5) The Director may, on his or her own initiative, declare financial security forfeited if

(a) the person who filed the financial security has been convicted of any of the following offences and the conviction has become final by reason of lapse of time or of having been confirmed by the highest court to which an appeal may be taken:

( i) an offence under this Act or the regulations;

( ii) an offence under any other Act of the Legislature or under a regulation under any such Act that, in the opinion of the Director, involves a dishonest action or intent; or

( iii) an offence under any Act of Canada, including the Criminal Code (Canada), or under a regulation under any such Act that, in the opinion of the Director, involves a dishonest action or intent;

(b) a judgment resulting from a claim in respect of activities referred to in subsection 1(3) or (4) has been given against the person who filed the financial security, the judgment has not been satisfied and the judgment has become final by reason of lapse of time or of having been confirmed by the highest court to which an appeal may be taken, or

(c) the person who filed the financial security has committed an act of bankruptcy, whether or not proceedings have been taken under the Bankruptcy and Insolvency Act (Canada).

12( 6) On application by the Director, the Tribunal may, following a hearing and if satisfied it is in the public interest, declare that financial security is forfeited.

12( 7) When money is recovered by the Commission by realizing on forfeited financial security, the Commission shall apply to the Tribunal for an order under subsection (8).

12( 8) Subject to subsection (9), the Tribunal may order that any money recovered from forfeited financial security under this section

(a) be paid over, in accordance with the order,

( i) in trust for those persons who may become judgment creditors of the person who filed the financial security, as a result of any judgment resulting from a claim in respect of activities referred to in subsection 1(3) or (4), to the clerk of the Court of Queen’s Bench for the judicial district in which those persons reside, or

( ii) to a trustee, custodian, interim receiver, receiver or liquidator of the person who filed the financial security, or

(b) be paid over to those persons who may be considered to be entitled to it in respect of any contract regarding activities referred to in subsection 1(3) or (4) that has been concluded with the person who filed the financial security.

12( 9) When money recovered by the Commission from forfeited financial security is to be paid over by the Commission to a person, the Commission may deduct from that money and retain the amount of the costs incurred by the Commission in connection with the recovery and distribution of the money, including the costs of an investigation of a claim made on the money.

12( 10) Any money not deducted by the Commission under subsection (9) nor paid over under an order of the Tribunal under subsection (8) shall be refunded to the person who filed the financial security.

Granting, reinstatement or amendment of licence

13( 1) The Director shall grant to an applicant a licence or the reinstatement of a licence unless

(a) in the opinion of the Director, the applicant is not suitable to hold a licence,

(b) in the opinion of the Director, the proposed licensing or reinstatement is objectionable,

(c) financial security is required under section 12 and the applicant has failed to file financial security with the Director in accordance with that section, or

(d) the applicant has not paid the required fee.

13( 2) The Director shall grant to an applicant an amendment to a licence unless

(a) in the opinion of the Director, the proposed amendment is objectionable, or

(b) the applicant has not paid the required fee.

13( 3) The Director may at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence.

13( 4) A licence holder shall comply with the terms and conditions imposed on the licence by the Director.

13( 5) The Director shall not refuse to grant, reinstate or amend a licence nor impose terms and conditions on the licence without giving the applicant or licence holder an opportunity to be heard.

Granting or reinstatement of endorsement

14( 1) The Director shall grant an endorsement or the reinstatement of an endorsement to a mortgage brokerage that applies for the endorsement or reinstatement unless

(a) in the opinion of the Director, the applicant is not suitable to hold an endorsement,

(b) in the opinion of the Director, the proposed endorsement or reinstatement is objectionable,

(c) financial security is required under section 12 and the applicant has failed to file financial security with the Director in accordance with that section, or

(d) the applicant has not paid the required fee.

14( 2) The Director may at any time restrict an endorsement by imposing any terms and conditions that he or she considers appropriate on the endorsement.

14( 3) A mortgage brokerage that holds an endorsement shall comply with the terms and conditions imposed on the endorsement by the Director.

14( 4) The Director shall not refuse to grant or reinstate an endorsement nor impose terms and conditions on the endorsement without giving the mortgage brokerage an opportunity to be heard.

Licence or endorsement not transferable

15 A licence or an endorsement granted or reinstated under this Part is not transferable or assignable.

Continuous licence or endorsement

16 A licence or an endorsement continues in force indefinitely unless it is suspended or cancelled in accordance with this Act.

17( 1) The Director shall maintain a register of licence holders that contains the following information for each licence:

(a) the category of licence;

(b) the name and contact information of the licence holder;

(d) for a mortgage administrator’s licence, the name of the mortgage administrator’s principal administrator;

(e) for a mortgage brokerage licence, whether there is an endorsement on the licence;

(f) whether terms and conditions apply to the licence or to any endorsement on the licence;

(g) whether the licence or any endorsement on the licence is under suspension or cancelled and the date the suspension or cancellation took effect; and

(h) any other information prescribed by regulation.

17( 2) The register shall be accessible to the public at the offices of the Commission during normal business hours and on the website of the Commission.

Automatic suspension of licence or endorsement

18( 1) A mortgage brokerage licence is automatically suspended if

(a) the mortgage brokerage ceases to have at least one mortgage broker authorized to broker mortgages on its behalf, or

(b) any required fee has not been paid by the mortgage brokerage.

18( 2) A mortgage administrator’s licence is automatically suspended if any required fee has not been paid by the mortgage administrator.

18( 3) A mortgage broker’s licence or a mortgage associate’s licence is automatically suspended if

(a) the mortgage broker or mortgage associate ceases to be authorized to act on behalf of the mortgage brokerage named on his or her licence,

(b) the mortgage brokerage named on the mortgage broker’s licence or mortgage associate’s licence has its licence suspended or cancelled,

(d) the mortgage broker or mortgage associate has failed to comply with the continuing education requirements contained in the regulations.

18( 4) An endorsement on a mortgage brokerage licence is automatically suspended if the licence is suspended.

18( 5) If a licence or an endorsement is suspended under this section, the Director may cancel the licence or endorsement if it has not been reinstated within the period prescribed by regulation.

Suspension or cancellation of licence or endorsement by Director

19( 1) The Director may make an order suspending or cancelling a licence or an endorsement if the Director is of the opinion that it is in the public interest to do so.

19( 2) The Director shall not make an order under subsection (1) without giving the licence holder an opportunity to be heard.

Surrender of licence

20( 1) On the application of a licence holder, the Director may accept, subject to any terms and conditions that he or she considers appropriate, the surrender of a licence unless the Director is of the opinion that it could be prejudicial to the public interest to do so.

20( 2) On receiving an application under subsection (1), the Director may, without providing the licence holder with an opportunity to be heard, suspend the licence.

Further information or material

21( 1) At any time, the Director may request an applicant for a licence or a licence holder to submit to the Director any further information or material and require verification, by affidavit or otherwise, of the authenticity, accuracy or completeness of any information or material then or previously submitted.

21( 2) The applicant for the licence or the licence holder shall provide the information or material and undertake the verification within the time period specified by the Director.

Change in circumstances

22( 1) No licence holder shall fail to notify the Director in writing immediately of any change to an address for service, a facsimile number or an electronic address previously submitted to the Director.

22( 2) Within seven days after a change in circumstances prescribed by regulation, an applicant for a licence or an endorsement or a licence holder shall notify the Director in writing.

PART 3

BROKERING MORTGAGES

Principal broker

23( 1) A mortgage brokerage shall designate one individual to act as a principal broker who

(a) holds a mortgage broker’s licence, and

(b) satisfies any other criteria prescribed by regulation.

23( 2) A principal broker shall

(a) designate a mortgage broker to act as a supervisor for each mortgage associate authorized to act on behalf of the mortgage brokerage,

(b) ensure that no mortgage associate brokers mortgages or carries on any other activity prescribed by regulation except under the supervision of a mortgage broker designated under paragraph (a),

(d) ensure that the mortgage brokerage and all persons acting on behalf of the mortgage brokerage act in compliance with this Act and the regulations, and

(e) exercise any other powers and perform any other duties prescribed by regulation.

Prohibition

24 No mortgage brokerage shall

(a) authorize or permit a mortgage broker or a mortgage associate to act on the mortgage brokerage’s behalf if that mortgage broker or mortgage associate has another mortgage brokerage named on his or her licence, or

(b) authorize or permit an unlicensed individual, or an individual whose licence is under suspension, to broker mortgages on the mortgage brokerage’s behalf.

Duty to ensure compliance

25 A mortgage brokerage shall ensure that every mortgage broker and mortgage associate authorized to act on the mortgage brokerage’s behalf acts in compliance with this Act and the regulations.

Duty to act in borrower’s best interests

26 Subject to section 27, a mortgage brokerage shall act in the best interests of the borrower.

Duty to act in private investor’s best interests

27( 1) A mortgage brokerage is not required to act in the best interests of the borrower and shall act in the best interests of a private investor if

(a) the mortgage brokerage

( i) solicits the private investor to make an investment in a mortgage,

( ii) negotiates or arranges an investment in a mortgage by the private investor, or

( iii) provides advice to the private investor with respect to the appropriateness of making a particular investment in a mortgage, and

(b) the private investor is not represented by another mortgage brokerage with respect to the investment in the mortgage.

27( 2) Unless the regulations provide otherwise, a mortgage brokerage that is required to act in the best interests of a private investor under subsection (1) shall ensure that the borrower is represented by another mortgage brokerage.

Duties owed to borrower

28 A mortgage brokerage required to act in the best interests of a borrower under this Part shall

(a) provide to the borrower the information prescribed by regulation within the time and in the manner prescribed by regulation,

(b) determine the mortgage loan that is most suitable for the borrower in accordance with the regulations,

(c) provide to the borrower, within the time and in the manner prescribed by regulation, a written assessment of the determination made under paragraph (b) that contains the information prescribed by regulation, and

(d) keep on file written evidence that the written assessment mentioned in paragraph (c) was provided to the borrower.

Duties owed to private investor

29( 1) A mortgage brokerage required to act in the best interests of a private investor under this Part shall, within the time and in the manner prescribed by regulation, provide the private investor with the following information and documentation:

(a) a copy of the investor disclosure form prescribed by regulation, completed and signed by the mortgage brokerage, and

(b) the information and documentation prescribed by regulation.

29( 2) A mortgage brokerage shall keep on file written evidence that every private investor to whom subsection (1) applies was provided with the following:

(a) the completed investor disclosure form mentioned in paragraph (1)(a), and

(b) the information and documentation required to be provided under paragraph (1)(b).

Money received in trust to be turned over immediately

30 A mortgage broker or mortgage associate who receives trust money in the course of brokering mortgages on behalf of a mortgage brokerage shall immediately turn that money over to the mortgage brokerage.

PART 4

MORTGAGE ADMINISTRATORS

Principal administrator

31( 1) A mortgage administrator shall designate one individual to act as a principal administrator who satisfies the criteria prescribed by regulation.

31( 2) A principal administrator shall

(a) represent the mortgage administrator in all interactions with the Director or any other employee of the Commission,

(b) ensure that the mortgage administrator and all persons acting on behalf of the mortgage administrator act in compliance with this Act and the regulations, and

Written agreement required

32( 1) A mortgage administrator shall not administer a mortgage on behalf of a private investor unless the mortgage administrator has entered into an agreement with that private investor that

(a) is in writing,

(b) includes the terms and conditions prescribed by regulation,

(d) contains any other information prescribed by regulation.

32( 2) Within ten days after the mortgage administrator and private investor enter into an agreement in accordance with subsection (1), the mortgage administrator shall provide a copy of the agreement to the private investor.

Duty to act in private investor’s best interests

33 A mortgage administrator that administers a mortgage on behalf of a private investor shall act in the best interests of that private investor.

Disclosure to private investor

34 If, at any time, there is a change to any of the information disclosed under paragraph 32(1)(c), the mortgage administrator shall provide the private investor with an additional statement disclosing the change within the time and in the manner prescribed by regulation.

PART 5

GENERAL REGULATION OF MORTGAGE BROKERAGES, MORTGAGE BROKERS, MORTGAGE ASSOCIATES AND MORTGAGE ADMINISTRATORS

Duty to act in good faith

35 A licence holder shall act fairly, honestly and in good faith in carrying on any activity referred to in subsection 1(3) or (4).

Guarantee of investment in mortgage prohibited

36 No licence holder shall directly or indirectly offer any guarantee with respect to an investment in a mortgage.

Record-keeping

37( 1) A licence holder shall keep books, records and documents that are necessary for the proper recording of any activities referred to in subsection 1(3) or (4) and shall keep any other books, records and documents that are otherwise required under this Act or the regulations.

37( 2) A licence holder shall keep the books, records and documents at a location approved by the Director.

37( 3) A licence holder shall retain the books, records and documents for a minimum period of seven years after the date of the transaction to which the books, records or documents relate.

37( 4) A licence holder shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires

(a) any of the books, records and documents that are required to be kept by the licence holder under this Act or the regulations, and

(b) any filings, reports or other communications made to any other regulatory authority.

Restriction on tied-selling

38( 1) No licence holder shall impose undue pressure on or coerce or otherwise require a borrower or private investor, as a condition of receiving a product or service, to purchase another product or service from a particular person.

38( 2) No licence holder shall knowingly assist an investor to impose undue pressure on or coerce or otherwise require a borrower, as a condition of receiving a product or service, to purchase another product or service from a particular person.

38( 3) Despite subsections (1) and (2), a licence holder may offer, or assist an investor to offer, a product or service to a borrower or private investor on more favourable terms or conditions than the licence holder or investor would otherwise offer, if the more favourable terms or conditions are offered on the condition that the borrower or private investor obtain another product or service from any particular person.

Working capital requirements

39( 1) A mortgage brokerage or mortgage administrator that is required under the regulations to comply with any working capital requirements shall, at all times, maintain that working capital.

39( 2) If the Director is satisfied that it would be in the public interest to do so, the Director may order an increase in the amount of working capital required to be maintained under subsection (1) by a mortgage brokerage that holds an endorsement or by a mortgage administrator.

Other requirements and prohibitions

40( 1) A licence holder shall comply with any other requirements prescribed by regulation.

40( 2) No licence holder shall violate any other prohibitions prescribed by regulation.

PART 6

TRUST PROPERTY

Division A

Records

Requirements re records

41( 1) In addition to the requirements set out in section 37, every mortgage brokerage that holds an endorsement and every mortgage administrator shall

(a) if applicable, ensure that the books, records and documents that are kept distinguish between

( i) money and assets pertaining to the operation of the business, and

( ii) money and mortgages received or held in trust, and

(b) ensure that any other books, records or documents required by the regulations are

( i) kept, reviewed and reconciled in accordance with the regulations, and

( ii) retained in accordance with subsection 37(3).

41( 2) In addition to the requirements set out in section 37 and subsection (1), a mortgage administrator shall keep books, records and documents showing, for each mortgage received or held in trust, particulars of all transactions connected with that mortgage.

Records relating to trust property

42( 1) A mortgage brokerage that holds an endorsement shall keep records of all transactions involving trust money received or held on behalf of residents of the Province separate and apart from records of those transactions relating to trust money received or held on behalf of residents of other jurisdictions.

42( 2) A mortgage administrator shall keep records of all transactions involving trust property received or held on behalf of residents of the Province separate and apart from records of those transactions relating to trust property received or held on behalf of residents of other jurisdictions.

Division B

Requirements Regarding Trust Property

Prerequisites to handling trust money

43( 1) A mortgage brokerage shall not receive or hold trust money on behalf of a private investor unless

(a) the mortgage brokerage holds a mortgage brokerage licence and an endorsement,

(b) the mortgage brokerage has duly executed a written trust agreement with the private investor that contains the information and the terms and conditions prescribed by regulation, and

( i) to proceed with an investment in a mortgage on a specific property, and an existing mortgage is available on that property, or

( ii) to proceed with an investment in a mortgage on a specific property, and an application has been made for a mortgage on that property.

43( 2) A mortgage administrator shall not receive or hold trust money unless

(a) the mortgage administrator holds a mortgage administrator’s licence, and

(b) if the money is received or held on behalf of a private investor, the mortgage administrator has duly executed a written trust agreement with the private investor that contains the information and the terms and conditions prescribed by regulation.

Prerequisites to receiving or holding mortgage in trust

44 No person carrying on any activity referred to in subsection 1(4) shall receive or hold a mortgage in trust unless

(a) the person holds a mortgage administrator’s licence, and

(b) if the person is receiving or holding the mortgage on behalf of a private investor,

( i) the person has duly executed a written trust agreement with the private investor that contains the information and the terms and conditions prescribed by regulation, and

( ii) a mortgage agreement, assignment of mortgage or other instrument conveying the mortgage, or portion of a mortgage, to the person

( A) has been duly executed, and

( B) expressly states that the person is acting as a trustee for an investor.

Trust property to be kept separate

45 A licence holder that receives or holds trust property shall keep all trust property separate and apart from all other money and property belonging to the licence holder or those acting on its behalf.

Trust money to be placed in trust account

46 A licence holder receiving trust money shall deposit, within the period prescribed by regulation, the money into a trust account that is

(a) held with a financial institution that is in the Province and designated by regulation,

(b) held in the name of the licence holder as shown on its licence, and

Administration of trust money by mortgage administrator

47 If a mortgage administrator receives trust money in the form of periodic payments with respect to a mortgage administered by the mortgage administrator on behalf of a private investor, the mortgage administrator shall pay that money to the private investor within 30 days after receiving it.

Administration of trust account

48( 1) No licence holder shall

(a) without the prior approval of the Director,

( i) open a new trust account,

( ii) move an existing trust account,

( iii) close an existing trust account, or

( iv) open or maintain more than one trust account with respect to trust money held on behalf of residents of the Province,

(b) withdraw any money from a trust account that would result in a negative balance in an individual account in its trust ledger,

(d) withdraw any money from a trust account except in accordance with the trust agreement relating to that money, or

(e) pay any personal or general office expense from a trust account.

48( 2) A licence holder shall maintain, at all times, a sufficient balance in its trust account to meet all of its obligations with respect to the trust money.

48( 3) If, contrary to subsection (2), there is a shortfall of money in a trust account, the licence holder shall immediately

(a) notify the Director of the shortfall, and

(b) deposit its own money into the trust account to correct the shortfall.

48( 4) A licence holder shall keep trust money held on behalf of residents of the Province separate and apart from any trust money held on behalf of residents of other jurisdictions.

PART 7

ANNUAL FILING REQUIREMENTS

Annual return

49 Within the time prescribed by regulation, a licence holder shall provide the Director with an annual return that contains the information prescribed by regulation.

Declaration

50 A mortgage brokerage that did not hold an endorsement during the preceding fiscal year shall provide the Director with a declaration that

(a) contains the information prescribed by regulation,

(b) is certified as true by

( i) in the case of a mortgage brokerage that is a sole proprietorship, the sole proprietor,

( ii) in the case of a mortgage brokerage that is a partnership, any two partners, or

( iii) in the case of a mortgage brokerage that is a corporation, any two directors, and

Annual financial statement

51 Every mortgage brokerage that holds an endorsement and every mortgage administrator shall provide the Director with financial statements for their preceding fiscal year that

(a) contain the information and are accompanied by the documentation prescribed by regulation, and

(b) are delivered to the Director within the period prescribed by regulation.

Interim financial statements

52 Every mortgage brokerage that holds an endorsement and every mortgage administrator shall, on request, provide the Director with interim financial statements or interim financial information

(a) for the period specified by the Director,

(b) containing any information the Director considers necessary, and

Standards of financial reporting

53( 1) Every financial statement prepared by a business for the purposes of this Act or the regulations shall be prepared in accordance with standards the Director considers appropriate for the business, including any modifications made to those standards by the Director.

53( 2) Every auditor who conducts an audit and prepares a report for the purposes of this Act or the regulations shall conduct the audit and prepare the report in accordance with Canadian Auditing Standards.

PART 8

ADVERTISING AND COMMUNICATIONS

Advertising

54( 1) No licence holder shall advertise or otherwise indicate that the licence holder is a mortgage brokerage, mortgage broker, mortgage associate or mortgage administrator using a name other than the name set out on the licence.

54( 2) No mortgage brokerage or mortgage administrator shall advertise the business or any products or services offered by that business unless the advertisement

(a) shows the name of the business as set out on its licence, and

(b) contains the information prescribed by regulation.

54( 3) No mortgage broker or mortgage associate shall advertise any product or service offered by the mortgage broker or mortgage associate unless the advertisement

(a) indicates the name of the mortgage brokerage for which the mortgage broker or mortgage associate is authorized to act, and

(b) contains the information prescribed by regulation.

False or misleading advertisement

55( 1) No licence holder shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of activities referred to in subsection 1(3) or (4).

55( 2) If, in the opinion of the Director, a licence holder has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order that licence holder to stop using that material immediately.

Information to be disclosed in correspondence

56( 1) A licence holder shall disclose the information prescribed by regulation in all correspondence and other written material prepared or used in respect of activities referred to in subsection 1(3) or (4).

56( 2) Subsection (1) does not apply to advertisements.

Representations as to financial standing

57 No licence holder shall make, print, publish, circulate, authorize or be a party or privy to the making, printing, publishing, circulating or authorizing of a statement or representation that the solvency or financial standing of a licence holder is vouched for by the Director or the Commission.

PART 9

COMPLIANCE REVIEWS

Compliance review

58( 1) The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.

58( 2) The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.

58( 3) For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may

(a) enter the premises of any licence holder during normal business hours,

(b) require a licence holder or an officer or employee of licence holder to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or activities of the licence holder,

(c) inspect, examine, audit or copy the books, records or documents relating to the business or activities of a licence holder, and

(d) question a licence holder or an officer or employee of a licence holder in relation to the business or activities of the licence holder.

58( 4) In carrying out a compliance review, a compliance officer may

(a) use a data processing system at the premises where the books, records or documents are kept,

(b) reproduce any book, record or document, and

(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.

58( 5) A compliance officer may carry out a compliance review within or outside the Province.

58( 6) A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.

58( 7) Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.

58( 8) The Commission may, in the circumstances prescribed by regulation, require a licence holder in respect of which a compliance review was carried out to pay the Commission any required fee and to reimburse the Commission for any expenses prescribed by regulation.

Removal of documents

59( 1) A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents as soon as possible after the making of copies or extracts.

59( 2) A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution as proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.

Misleading statements

60 No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.

Obstruction

61( 1) No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Part, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.

61( 2) A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.

PART 10

INVESTIGATIONS

Provision of information to Director

62( 1) The Director may make an order under subsection (2)

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

62( 2) By an order applicable generally or to one or more persons named or otherwise described in the order, the Director may require any of the following persons to provide information or to produce books, records or documents or classes of books, records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:

(a) a licence holder or a former licence holder; or

(b) any person that does not hold a licence and that is, or the Director has reason to suspect is, brokering or administering mortgages.

62( 3) The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.

62( 4) The Director may require that the information that is provided or that the books, records or documents or classes of books, records or documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, records or documents or classes of books, records or documents are already available in that form.

Investigation order

63( 1) The Commission may, by order, appoint a person as an investigator to make any investigation that the Commission considers expedient

(a) for the administration of this Act or the regulations, or

(b) to assist in the administration of similar legislation of another jurisdiction.

63( 2) In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).

Powers of investigator

64( 1) An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine

(a) the affairs of that person,

(b) any books, records, documents or communications connected with that person, and

(c) any property or assets owned, acquired or disposed of, in whole or in part, by that person or by a person acting on behalf of or as agent for that person.

64( 2) For the purposes of an investigation under this Part, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of which the investigation is ordered or any other person.

64( 3) An investigator making an investigation under this Part may, on production of the order appointing him or her,

(a) enter the business premises of any person named in the order during normal business hours and inspect and examine any book, record, document or thing that is used in the business of that person and that relates to the order,

(b) require the production of any book, record, document or thing referred to in paragraph (a) for inspection or examination, and

(c) on giving a receipt, remove the book, record, document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.

64( 4) Inspection or examination under this section shall be completed as soon as possible and the books, records, documents or things shall be returned promptly to the person who produced them.

64( 5) No person shall withhold, destroy, conceal, alter or refuse to give any information or withhold, destroy, conceal, alter or refuse to produce any book, record, document or thing reasonably required under subsection (3) by an investigator.

Power to compel evidence

65( 1) An investigator making an investigation under this Part has the same power to summon and enforce the attendance of witnesses, to compel witnesses to give evidence under oath or in any other manner and to compel witnesses to produce books, records, documents and things or classes of books, records, documents and things as the Court of Queen’s Bench has for the trial of civil actions.

65( 2) On the application of an investigator to the Court of Queen’s Bench, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court of Queen’s Bench.

65( 3) A person giving evidence at an investigation conducted under this section may be represented by legal counsel.

65( 4) Testimony given by a person under this section shall not be admitted into evidence against that person in any prosecution other than for perjury in the giving of that testimony or the giving of evidence contradictory to that testimony.

Investigators authorized as peace officers

66 Every investigator in carrying out his or her duties under this Act and the regulations is a person employed for the preservation and maintenance of the public peace and has and may exercise all the powers, authorities and immunities of a peace officer as defined in the Criminal Code (Canada).

Seized property

67( 1) On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, records, documents or things seized under this Part, the books, records, documents or things seized shall, at a time and place mutually convenient to the person who was in lawful possession of them at the time of the seizure and the investigator, be made available for consultation and copying by the person.

67( 2) If books, records, documents or things are seized under this Part and the matter for which the books, records, documents or things were seized is concluded, the investigator shall return those books, records, documents or things to the person who was in lawful possession of them at the time of the seizure within 60 days after the day that the matter is concluded.

67( 3) If books, records, documents or things are seized under this Part and the person who was in lawful possession of the books, records, documents or things at the time of the seizure alleges that the books, records, documents or things are not relevant in respect of the matter for which they were seized, that person may apply by notice of motion to the Court of Queen’s Bench for the return of the books, records, documents or things.

67( 4) On a motion under subsection (3), the Court of Queen’s Bench shall order the return of any books, records, documents or things that it determines are not relevant to the matter for which they were seized to the person who was in lawful possession of the books, records, documents or things at the time of the seizure.

Report of investigation

68( 1) If an investigation has been made under this Part, the investigator shall, at the request of the Commission, provide a report of the investigation to the Commission or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.

68( 2) A report that is provided to the Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.

Prohibition against disclosure

69( 1) For the purpose of protecting the integrity of an investigation under this Part, the Commission may make an order that applies for the duration of the investigation, prohibiting a person from disclosing to any person other than the person’s lawyer the following information:

(a) the fact that an investigation is being conducted;

(b) the name of any person examined or sought to be examined;

(d) the nature or content of any demands for the production of any document or other thing; or

(e) the fact that any document or other thing was produced.

69( 2) An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.

69( 3) An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.

Non-compellability

70 None of the following persons are compellable to give evidence in any court or in any proceeding of a judicial nature concerning any information that comes to the knowledge of the person in the exercise of the powers or performance of the duties of that person in relation to an investigation under this Part:

(a) an investigator;

(b) the Commission;

(d) an employee of the Commission;

(e) a member of the Tribunal; and

(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.

PART 11

ENFORCEMENT

Offences generally

71( 1) A person who does any of the following commits an offence, and is liable on conviction, for each offence, if an individual, to a fine of not more than $500,000 or to imprisonment for a term of not more than one year, or to both, and if a person other than an individual, to a fine of not more than $1,000,000:

(a) makes a statement in any information or material submitted, provided, produced, delivered or given to or filed with the Commission, the Director, a compliance officer, an investigator or any person acting under the authority of the Commission or the Director that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;

(b) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under this Act or the regulations that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;

(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;

(d) contravenes or fails to comply with a provision of this Act that is listed in Schedule A;

(e) contravenes or fails to comply with a decision, ruling, order, temporary order or direction of the Commission, the Director or the Tribunal made or given under this Act or the regulations;

(f) contravenes or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations; or

(g) contravenes or fails to comply with any provision of the regulations.

71( 2) Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if

(a) the person did not know and in the exercise of reasonable diligence could not have known that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading in light of the circumstances in which it was made, and

(b) on becoming aware that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading, the person notified the Commission.

Carrying on business without a licence

72 If, in a proceeding, it is alleged that a person carried on the business of brokering mortgages or administering mortgages without a licence, evidence of one transaction involving products or services of a type normally offered or provided by a mortgage brokerage or mortgage administrator, as the case may be, is proof, in the absence of evidence to the contrary, that the person carried on the business of brokering or administering mortgages.

Misleading or untrue statements

73 In carrying on an activity referred to in subsection 1(3) or (4), no person shall make a statement that the person knows or reasonably ought to know is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading.

Interim preservation of property

74( 1) On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:

(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;

(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or

(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, this Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.

74( 2) An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.

74( 3) An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of Queen’s Bench to continue the order or for any other order that the Court of Queen’s Bench considers appropriate.

74( 4) An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.

74( 5) A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.

74( 6) The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.

74( 7) A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.

74( 8) The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.

74( 9) On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.

Orders in the public interest

75( 1) On the application of the Commission, the Tribunal, if in its opinion it is in the public interest to do so, may make one or more of the following orders:

(a) an order that a licence be suspended or restricted for the period specified in the order or be cancelled, or that terms and conditions be imposed on the licence;

(b) an order that any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;

(d) an order that a person submit to a review of the person’s practices and procedures relating to activities referred to in subsection 1(3) or (4) and institute any changes directed by the Tribunal;

(e) if the Tribunal is satisfied that this Act or the regulations have not been complied with, an order that any document or statement described in the order

( i) be provided by a person,

( ii) not be provided to a person, or

( iii) be amended to the extent that amendment is practicable;

(f) an order that a person be reprimanded;

(g) an order that a person amend, in the manner specified in the order, any information or material of any kind described in the order that is disseminated to the public;

(h) an order that a person cease contravening or comply with, and that the directors and officers of the person cause the person to cease contravening or to comply with, this Act and the regulations;

(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

75( 2) The Tribunal may impose any terms and conditions that the Tribunal considers appropriate on an order under this section.

75( 3) A person who is the subject of an order made under this section shall comply with any terms and conditions imposed on the order.

75( 4) Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.

75( 5) Despite subsection (4), if in the opinion of the Tribunal the length of time required to hold a hearing could be prejudicial to the public interest, the Tribunal, without a hearing, may make a temporary order under paragraph (1)(a), (b), (c) or (f).

75( 6) The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.

75( 7) The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.

75( 8) The Commission shall without delay give written notice of an order or temporary order made under this section to any person directly affected by the order or temporary order.

Administrative penalty

76( 1) On the application of the Commission and after conducting a hearing, the Tribunal may order a person to pay an administrative penalty of, in the case of an individual, not more than $100,000, and in the case of a person other than an individual, not more than $500,000, if the Tribunal

(a) determines that the person has contravened or failed to comply with this Act or the regulations, and

(b) is of the opinion that it is in the public interest to make the order.

76( 2) The Tribunal may make an order under this section despite the imposition of any other penalty on the person or the making of any other order by the Tribunal, the Commission or the Director related to the same matter.

Appointment of receiver

77( 1) On application by the Commission, the Court of Queen’s Bench may make an order appointing a receiver, receiver and manager, trustee or liquidator of all or any part of the property of any person.

77( 2) No order shall be made under subsection (1) unless the Court of Queen’s Bench is satisfied that

(a) the appointment of a receiver, receiver and manager, trustee or liquidator of all or any part of the property of the person is in the best interests of the creditors of the person or of persons any of whose property is in the possession or under the control of the person, or

(b) it is in the public interest to make the order.

77( 3) An order under subsection (1) may be made ex parte if the Court of Queen’s Bench considers it proper in the circumstances, but the period of appointment shall not exceed 15 days.

77( 4) If an order under subsection (1) is made ex parte, the Commission may apply to the Court of Queen’s Bench within 15 days after the date of the order to continue the order or for the issuance of any other order that the Court of Queen’s Bench considers appropriate.

77( 5) A receiver, receiver and manager, trustee or liquidator of the property of a person appointed under this section shall be the receiver, receiver and manager, trustee or liquidator of all or any part of the property belonging to the person or held by the person on behalf of or in trust for any other person, and, if so directed by the Court of Queen’s Bench, the receiver, receiver and manager, trustee or liquidator has the authority to wind up or manage the business and affairs of the person and has all powers necessary or incidental to that authority.

77( 6) The fees charged and expenses incurred by a receiver, receiver and manager, trustee or liquidator appointed under this section in relation to the exercise of powers pursuant to the appointment shall be in the discretion of the Court of Queen’s Bench.

77( 7) An order made under this section may be varied or discharged by the Court of Queen’s Bench on application to it.

Directors and officers

78 If a person other than an individual contravenes or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the contravention or non-compliance shall be deemed also to have contravened or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 75.

Resolution of administrative proceedings

79( 1) Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Director under this Act or the regulations may be disposed of by

(a) an agreement approved by the Commission, the Tribunal or the Director, as the case may be,

(b) a written undertaking made by a person to the Commission, the Tribunal or the Director that has been accepted by the Commission, the Tribunal or Director, as the case may be, or

(c) a decision of the Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.

79( 2) An agreement, written undertaking or decision made, accepted or approved under subsection (1) may be enforced in the same manner as a decision made by the Commission, the Tribunal or the Director under any other provision of this Act or under the regulations.

Limitation period

80 No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.

PART 12

REVIEWS AND REFERRALS

Review of decision

81( 1) On application by a person directly affected by a decision of the Director, the Tribunal may review the decision.

81( 2) A request shall be made by notice in writing sent by registered mail or personally served on the Tribunal within 30 days after the date of the decision.

81( 3) On application by the Commission, the Tribunal may review a decision of the Director.

81( 4) If the Commission intends to make an application under subsection (3), within 30 days after the date of the Director’s decision, it shall notify the Director and any person directly affected by that decision of its intention to make the application.

81( 5) The Director is a party to a review under this section of a decision of the Director.

81( 6) The Tribunal may by order confirm, vary or rescind the whole or any part of the decision under review or make any other decision that the Tribunal considers proper.

81( 7) Despite the fact that a review is held under this section, the decision under review takes effect immediately, but the Tribunal may grant a stay of the decision until disposition of the review.

Referral to Tribunal

82( 1) The Director may refer a question to the Tribunal for determination if the Director is of the opinion that a material question affecting the public interest or a novel question of interpretation is raised because of

(a) an application made to the Director,

(b) information or material submitted, provided, produced, delivered or given to or filed with the Director, or

(c) a matter arising out of the exercise or performance by the Director of his or her powers or duties under this Act or the regulations.

82( 2) When the Director refers a question to the Tribunal under subsection (1), the Director shall

(a) state the question in writing, setting out the facts on which it is based, and

(b) file with the Tribunal the question together with additional information or material that the Director considers relevant.

82( 3) The Tribunal shall consider and determine the question and refer the matter to the Director for final consideration.

82( 4) Subject to any order of The Court of Appeal of New Brunswick made under section 48 of the Financial and Consumer Services Commission Act, the decision of the Tribunal on the question is final and binding on the Director.

PART 13

GENERAL PROVISIONS

Clear and concise language to be used

83 If this Act or the regulations require information to be contained in a document, the document must express the required information clearly, concisely, in a logical order and in a manner that is likely to bring the information to the reader’s attention.

Certificate evidence

84 A certificate purporting to be signed by the Director or a person designated by the Commission certifying all or any of the following facts is admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the appointment, authority or signature of the person who signed the certificate:

(a) that a person named in the certificate was or was not licensed or had or had not been granted an endorsement;

(b) that a licence or an endorsement was granted to a person on a date set out in the certificate;

(d) that a licence or an endorsement granted to a person was made subject to terms and conditions.

Conflict with the Right to Information and Protection of Privacy Act

85 If a provision of this Act is inconsistent or in conflict with a provision of the Right to Information and Protection of Privacy Act, the provision of this Act prevails.

Reciprocity

86( 1) The Commission may enter an agreement with a regulatory authority of another jurisdiction within or outside Canada for the purposes of the enforcement of this Act and the regulations and similar legislation of the other jurisdiction.

86( 2) The agreement may authorize the Director to perform duties and exercise powers on behalf of the other regulatory authority and authorize the other regulatory authority to perform duties and exercise powers on behalf of the Director.

Late fee

87 A person that provides an annual return, a declaration or financial statements to the Director after the time set out in this Act or the regulations shall pay the required fee.

Administration

88 The Commission is responsible for the administration of this Act.

Regulations

89( 1) The Lieutenant-Governor in Council may make regulations and the Commission may make rules

(a) prescribing criteria for the purposes of paragraph (b) of the definition “mortgage broker” in section 1;

(b) for the purposes of paragraph 1(3)(d) or 1(4)(d), prescribing activities;

(c) for the purposes of paragraph 2(1)(a), prescribing persons or classes of persons to whom this Act or any provision of it does not apply;

(d) prescribing terms and conditions for the purposes of subsection 2(2);

(e) respecting errors and omissions insurance requirements, including, without being limited to,

( i) prescribing the minimum amount of errors and omissions insurance and the scope of that insurance that must be obtained by an applicant for a licence or an endorsement,

( ii) requiring that the errors and omissions insurance be maintained at all times, and

( iii) requiring proof of that insurance at the time of granting a licence or an endorsement or at any time after that;

(f) respecting working capital requirements and the manner of determining the amount of working capital of an applicant for a licence or an endorsement or a licence holder;

(g) prescribing requirements that must be met by applicants for licences or endorsements, including, without being limited to, establishing, with respect to applicants or classes of applicants, competence and proficiency requirements and training and educational requirements;

(h) prescribing factors for the purposes of subsection 12(4);

(i) prescribing information to be contained in the register of licence holders for the purposes of paragraph 17(1)(h);

(j) prescribing a period for the purposes of subsection 18(5);

(k) prescribing changes in circumstances for the purposes of subsection 22(2);

(l) prescribing the criteria that must be met by a principal broker or principal administrator and prescribing powers and duties of a principal broker or principal administrator,

(m) prescribing activities for the purposes of paragraph 23(2)(b);

(n) prescribing, for the purposes of subsection 27(2), circumstances in which a mortgage brokerage need not ensure that the borrower is represented by another mortgage brokerage,

(o) for the purposes of section 28,

( i) prescribing information that must be provided to a borrower and the time within which and the manner in which that information must be provided,

( ii) prescribing the process by which a mortgage brokerage is to determine the mortgage loan that is most suitable for a borrower, and

( iii) prescribing the information that must be contained in a written assessment and the time within which and the manner in which the written assessment must be provided to the borrower;

(p) for the purposes of section 29, prescribing

( i) the investor disclosure form, or the contents of the investor disclosure form, and the time within which and the manner in which the form must be provided, and

( ii) the information and documentation that must be provided to a private investor by a mortgage brokerage and the time within which and the manner in which the information and documentation must be provided;

(q) for the purposes of section 32, prescribing terms and conditions and other information that must be included in an agreement, including information that must be disclosed in the statement included in the agreement;

(r) for the purposes of section 34, prescribing the time within which and the manner in which an additional statement must be provided to the private investor;

(s) requiring, for the purposes of subsection 37(1), that certain books, records or documents be kept;

(t) for the purposes of section 40, prescribing any other requirements or prohibitions applicable to a licence holder, including, without being limited to, prescribing various classes of licence holders or activities and prescribing different requirements or prohibitions for those classes of licence holders or activities, including educational requirements and continuing education requirements;

(u) for the purposes of paragraph 41(1)(b), requiring that certain books, records or documents be kept and respecting the process for keeping, reviewing and reconciling those books, records or documents, including requiring that a person or class of persons conduct the review and reconciliation of those books, records or documents at specified intervals;

(v) for the purposes of subsection 43(1) or (2) or section 44, prescribing information and terms and conditions that must be contained in a trust agreement;

(w) for the purposes of section 46,

( i) prescribing the period within which a licence holder shall deposit trust money into a trust account, and

( ii) designating the financial institutions in which a licence holder is permitted to hold a trust account;

(x) for the purposes of section 49, prescribing the information that must be contained in an annual return and the time within which a licence holder must provide the annual return to the Director;

(y) for the purposes of section 50, prescribing the information to be included in a declaration and the period within which the declaration must be delivered to the Director;

(z) for the purposes of section 51, prescribing the information that must be contained in and the documentation that must accompany financial statements and the period within which the financial statements must be delivered to the Director;

(aa) for the purposes of subsection 54(2) or (3), prescribing the information that must be contained in an advertisement;

(bb) for the purposes of section 56, prescribing information that must be disclosed in all correspondence and other written material prepared or used by a licence holder;

(cc) prescribing circumstances and expenses for the purposes of subsection 58(8);

(dd) exempting any person or class of persons from the application of the regulations or any provision of them;

(ee) prescribing terms and conditions attached to an exemption referred to in paragraph (dd);

(ff) authorizing disclosures for the purposes of subsection 69(2);

(gg) defining the term “private investor” and any other word or expression used in this Act but not defined in this Act, for the purposes of this Act, the regulations or both;

(hh) respecting any other matter considered necessary or advisable to carry out effectively the intent of this Act.

89( 2) The Lieutenant-Governor in Council may make regulations

(a) establishing the practices and procedures that are to be followed by the Commission in making or amending rules;

(b) providing for the form and content of a notice of a rule to be published in The Royal Gazette under paragraph 90(1)(b);

(c) governing the commencement of rules made by the Commission and the period during which rules made by the Commission are effective.

89( 3) The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.

89( 4) Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.

89( 5) A regulation made under subsection (4) is not effective before the rule referred to in that subsection comes into force.

89( 6) Subject to subsection (5), a regulation made under subsection (4) may be retroactive in its operation.

89( 7) A regulation or rule authorized by this section may incorporate by reference, in whole or in part, any laws, any by-laws or other regulatory instruments or any codes, standards, procedures or guidelines as they are amended from time to time before or after the making of the regulation or the rule or as they read at a fixed time and may require compliance with any law, any by-law or other regulatory instrument or any code, standard, procedure or guideline so incorporated.

89( 8) Regulations or rules may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.

89( 9) A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.

89( 10) The Regulations Act does not apply to the rules made under this Act.

89( 11) If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.

Notice and publication of rules

90( 1) As soon as practicable after a rule is made under section 89, the Commission shall

(a) publish the rule electronically, and

(b) publish in The Royal Gazette notice of the rule in accordance with the regulations.

90( 2) Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.

90( 3) When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).

Changes by Secretary of the Commission

91 The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 90(1)(a).

Consolidated rules

92( 1) The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.

92( 2) In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.

92( 3) The Commission may publish the consolidated rules in the frequency that it considers appropriate.

92( 4) A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.

92( 5) In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.

PART 14

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Financial and Consumer Services Commission Act

93( 1) Section 1 of the Financial and Consumer Services Commission Act, chapter 30 of the Acts of New Brunswick, 2013, is amended

(a) in the definition “financial and consumer services legislation” by adding after paragraph (m) the following:

(m.1) the Mortgage Brokers Act,

(b) in the definition “regulator”

( i) in paragraph (f) of the English version by striking out “and” at the end of the paragraph;

( ii) in paragraph (g) by striking out the period at the end of the paragraph and substituting a comma followed by “and”;

( iii) by adding after paragraph (g) the following:

(h) the Director of Mortgage Brokers appointed under paragraph 18(2)(j).

93( 2) Subsection 18(2) of the Act is amended

(a) in paragraph (h) of the English version by striking out “and” at the end of the paragraph;

(b) in paragraph (i) by striking out the period at the end of the paragraph and substituting a semicolon followed by “and”;

(j) a Director of Mortgage Brokers.

93( 3) Subsection 56(3) of the Act is amended

(a) in subparagraph (a)(iii) of the English version by striking out “or” at the end of the subparagraph;

(b) in paragraph (b) by striking out the period at the end of the paragraph and substituting a semicolon followed by “or”;

Commencement

94 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

SCHEDULE A

Number of provision

2(2)
3(4)
5(1)
5(2)
5(3)
6
12(3)
13(4)
14(3)
21(2)
22(1)
22(2)
23(2)(d)
24(a)
24(b)
25
26
27(1)
27(2)
28(a)
28(b)
28(c)
28(d)
29(1)(a)
29(1)(b)
29(2)(a)
29(2)(b)
30
31(2)(b)
32(1)
32(2)
33
34
35
36
37(1)
37(2)
37(3)
37(4)(a)
37(4)(b)
38(1)
38(2)
39(1)
41(1)(a)
41(1)(b)
41(2)
42(1)
42(2)
43(1)(a)
43(1)(b)
43(1)(c)
43(2)(a)
43(2)(b)
44(a)
44(b)(i)
44(b)(ii)
45
46
47
48(1)(a)(i)
48(1)(a)(ii)
48(1)(a)(iii)
48(1)(a)(iv)
48(1)(b)
48(1)(c)
48(1)(d)
48(1)(e)
48(2)
48(3)(a)
48(3)(b)
48(4)
49
50(a)
50(b)
50(c)
51(a)
51(b)
52
53(1)
54(1)
54(2)(a)
54(2)(b)
54(3)(a)
54(3)(b)
55(1)
56(1)
57
60
61(1)
64(5)
73
75(3)