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RSNL1990 CHAPTER M-18

MORTGAGE BROKERS ACT

Amended:

1996 cR-10.1 s49; 2004 c36 s26; 2005 cF-9.1 s15; 2008 cC-37.0001 s49 (Rep. before being proclaimed); 2009 cC-31.1 s111; 2010 c27; 2013 c13 s8

CHAPTER M-18

AN ACT TO REGISTER MORTGAGE BROKERS AND TO CONTROL THE AMOUNT OF BONUSES TO BE CHARGED BY MORTGAGE BROKERS AND MORTGAGE LENDERS

Analysis



Short title

        1. This Act may be cited as the Mortgage Brokers Act.

1975-76 No49 s1

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Definitions

        2. In this Act

             (a)  "bonus" means discount, premium, dues, commission, brokerage fee, finders fee or other payment made by a borrower to a mortgage lender or mortgage broker;

             (b)  "borrower" means a person who applies for a mortgage from a mortgage lender or mortgage broker;

             (c)  "mortgage" means a mortgage on land, and includes a charge on, or transfer of, land or an interest in land for the purpose of securing money or money's worth;

             (d)  "mortgage broker" means a person who deals in mortgages, a person who holds himself or herself out as being able to provide services usually provided by a mortgage broker or a person who for profit finds mortgage money on behalf of others;

             (e)  "mortgage lender" means a person who carries on the business of lending money on the security of land, whether the money is his or her own or that of another person; and

             (f)  "registrar" means the Registrar of Mortgage Brokers.

1975-76 No49 s2

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Registrar

        3. (1) The Lieutenant-Governor in Council shall appoint a Registrar of Mortgage Brokers to administer and enforce this Act and the regulations.

             (2)  The Lieutenant-Governor in Council may appoint a Deputy Registrar of Mortgage Brokers

             (a)  to act in place of the registrar in his or her absence or incapacity; and

             (b)  to exercise the powers and perform the duties of the registrar under this Act or the regulations that may be assigned by the registrar.

             (3)  For the purposes of carrying out his or her powers and duties under this Act, the registrar has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquiries Act.

1975-76 No49 s3; 2010 c27 s1

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Registration

        4. A person shall not act as a mortgage broker unless he or she is registered under this Act, or exempted from registration by the regulations.

1975-76 No49 s4

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Application

        5. (1) A person may apply for registration as a mortgage broker on a form supplied by the registrar.

             (2)  The registrar shall register a mortgage broker who meets the requirements of the Act and the regulations.

             (3)  A registration remains in effect until it is withdrawn by the registered person or is suspended or cancelled under this Act.

             (4)  The registrar shall not refuse to grant registration to a mortgage broker, or cancel or suspend his or her registration without giving the mortgage broker an opportunity to be heard.

1975-76 No49 s5

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Suspension or cancellation of registration

        6. The registrar may suspend or cancel the registration of a mortgage broker

             (a)  for the breach of a term or condition upon which a registration was granted;

             (b)  where he or she has reason to believe that a mortgage broker has failed to comply with this Act or the regulations;

             (c)  in the case of a corporation, where the corporation has been dissolved or has been struck off the register under the Corporations Act;

             (d)  where a mortgage broker has become bankrupt; or

             (e)  where he or she considers it to be in the public interest to do so.

1975-76 No49 s6; 1986 c12 Sch; 1987 c38 Sch B

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Examination

      6.1 (1) The registrar may appoint persons to conduct examinations under this Act.

             (2)  Where it is reasonably necessary to ensure compliance with this Act or the regulations, a person appointed by the registrar under subsection (1) may, for the purpose of conducting an examination, at reasonable times enter the premises of a mortgage broker and

             (a)  require the production of books, records or other documents applicable to the operations of that mortgage broker under this Act or the regulations and may examine those books, records or documents or remove them for the purpose of making copies of them;

             (b)  interview employees of a mortgage broker to determine if the mortgage broker is complying with this Act and the regulations; and

             (c)  inquire into all matters relating to the operations of the mortgage broker under this Act and the regulations.

             (3)  A mortgage broker whose premises is entered under subsection (1) and a person found there shall give the person conducting the examination reasonable help to enable that person to carry out his or her duties and functions under this Act and shall provide the information that he or she may reasonably require.

             (4)  Where a person conducting an examination under subsection (1) removes books, records or other documents under paragraph (1)(a), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.

             (5)  The registrar may require the annual examination of a mortgage broker under this section or more frequent examinations where he or she considers it necessary.

2010 c27 s2

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Investigation

        7. (1) The registrar may appoint persons to conduct investigations under this Act.

             (2)  Where a person appointed under subsection (1) or subsection 6.1(1) believes on reasonable grounds that a person is contravening or has contravened this Act or the regulations, that person may, with a warrant issued under subsection (3), enter those premises and seize anything that may provide evidence of the contravention.

             (3)  A judge of the Provincial Court or the Trial Division who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act or the regulations has occurred, or is occurring, may issue a warrant authorizing the person named in the warrant to enter the private or public premises, including a dwelling house, and to

             (a)  search;

             (b)  examine the contents of the premises and make those inquiries that the person considers necessary; and

             (c)  copy, extract, photograph, video, seize and take away evidence, books and records

for the purpose of investigating the suspected contravention.

             (4)  A mortgage broker and the owner or operator of private or public premises referred to in this section and a person found there shall not obstruct the person named in the warrant in its execution.

2010 c27 s3

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Powers of examiner or investigator

      7.1 (1) A person appointed by the registrar to conduct an examination or an investigation has the same power to summon and enforce the attendance of a person and to compel him or her to testify on oath or otherwise, and to summon and compel a person or company to produce documents and other things, that is vested in a judge of the Trial Division, and the refusal of the person to attend or to answer questions or of a person or company to produce documents or other things that are in his, her or its custody or possession makes the person or company liable to be committed for contempt by a judge of the Trial Division as if in breach of an order of that court.

             (2)  A person or company giving evidence under subsection (1) may be represented by counsel and may claim a privilege to which the person or company is entitled.

2010 c27 s4

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Production order

      7.2 (1) A judge of the Provincial Court or a judge of the Trial Division may order a person, other than a person who is the subject of an investigation,

             (a)  to produce a document or a copy of a document, certified by affidavit to be a true copy, or to produce data; or

             (b)  to prepare a document based on a document or data already in existence and to produce it.

             (2)  An order referred to in subsection (1) shall require the document or data to be produced within the time, at the place and in the form specified and to be given to a person appointed by the registrar to perform an investigation or examination under this Act.

             (3)  A judge may make an order referred to in subsection (1) where he or she is satisfied on the basis of an application made in writing on oath or affirmation and without notice that there are reasonable grounds to believe that

             (a)  a person has contravened or is contravening this Act or the regulations or is suspected to have contravened this Act or the regulations;

             (b)  the document or data will provide evidence respecting a contravention or suspected contravention of this Act or the regulations; and

             (c)  the person who is subject to the order has possession or control of the document or data.

             (4)  An order referred to in subsection (1) may contain terms and conditions that the judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and his or her client.

             (5)  The order referred to in subsection (1) may be revoked, renewed or varied.

             (6)  A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.

             (7)  Copies of documents produced under this section are not required to be returned to the person who provided them.

2010 c27 s4

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Protection order

      7.3 (1) Where the registrar considers it necessary for the administration of this Act, the registrar may direct a person, having on deposit or under his or her control or for safekeeping funds of a person, to retain those funds and to hold them until the registrar in writing revokes the direction or consents to release a particular fund from the direction, or until a judge of the Trial Division orders otherwise.

             (2)  A direction under subsection (1) that names a bank or other financial institution shall apply only to a branch of the bank or other financial institution identified in the direction.

             (3)  As soon as practicable, and not later than 7 days after a direction is issued under subsection (1), the registrar shall apply to a judge of the Trial Division to continue the direction or for another order that the judge considers appropriate.

             (4)  A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent immediately by means that the registrar may determine to all persons named in the direction.

2010 c27 s4

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Rep. by 2009 cC-31.1 s111

        8. [Rep. by 2009 cC-31.1 s111]

2009 cC-31.1 s111

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Limitation of liability of borrower

        9. A borrower is not liable to pay a mortgage lender or mortgage broker an amount that exceeds that set out in the disclosure statement required under the Consumer Protection and Business Practices Act and regulations.

2013 c13 s8

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Exemption from disclosure

      10. Sections 8 and 9 do not apply to a mortgage in excess of $500,000 to be made between a mortgage lender and a borrower, or to a mortgage in that amount found by a mortgage broker for a borrower.

1978 c1 s1

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Bonus

      11. (1) A mortgage lender or mortgage broker shall not charge a bonus in excess of the amount set out in the regulations.

             (2)  A bonus charged by a mortgage lender or mortgage broker in excess of the amount set out in the regulations is recoverable on the suit of the registrar as a civil debt due the Crown.

             (3)  An amount recovered under subsection (2) shall be paid to the borrower by the registrar.

             (4)  This section does not apply to a mortgage in excess of $25,000 made between a mortgage lender and a corporation, or to a source of money found by a mortgage broker for a corporation.

1975-76 No49 s10

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False advertising

      12. Where, in the opinion of the registrar, a mortgage lender or mortgage broker is making false, misleading or deceptive statements relating to the lending of money on the security of real property in an advertisement, he or she may order the immediate cessation of the use of those statements.

1975-76 No49 s11

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Regulations

      13. The Lieutenant-Governor in Council may make regulations

             (a)  respecting the registration of mortgage brokers and the issuing of certificates of registration;

             (b)  [Rep. by 1996 cR-10.1 s49]

             (c)  requiring mortgage brokers to be bonded and providing for the forfeiture of the bond and the disposition of the proceeds;

             (d)  respecting the suspension or cancellation of registration;

             (e)  providing for the approval of the disclosure statements made under section 8 and other matters to be included in those disclosure statements;

             (f)  requiring the use by mortgage lenders and mortgage brokers of agreements, instruments and other documents that are in a form approved by the registrar;

             (g)  respecting advertising by mortgage brokers and mortgage lenders;

             (h)  prescribing the content of the records to be kept by mortgage lenders and mortgage brokers;

              (i)  respecting the regulation of trust accounts kept by mortgage lenders and mortgage brokers;

              (j)  prescribing reports and returns to be made by mortgage brokers to the registrar;

             (k)  providing for the exemption of classes of mortgage brokers from the requirement of registration under this Act;

              (l)  providing for the amount of bonuses not to exceed 4% of the principal amount of the mortgage plus $100 that may be charged by mortgage lenders and mortgage brokers;

           (m)  providing for the holding of inquiries into the operation of this Act and into charges or complaints that a person has contravened this Act or the regulations, or into other matters arising in the administration of this Act and conferring upon the person holding that inquiry all of the powers that are conferred upon a commissioner under the Public Inquiries Act; and

             (n)  generally, to give effect to the purpose of this Act.

1975-76 No49 s12; 1977 c54 s3; 1996 cR-10.1 s49

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Offence

      14.   (1) A person shall not interfere with or obstruct a person in the course of a lawful investigation or examination under this Act or the regulations.

             (2)  A person who contravenes a provision of this Act or the regulations is liable on summary conviction to a fine of not more than

             (a)  $100,000; or

             (b)  an amount equal to 3 times the amount obtained by the person as a result of the offence, whichever is greater,

or to a term of imprisonment of not more than 2 years, or to both a fine and imprisonment.

             (3)  Where a person is convicted of an offence under this Act or the regulations, the court making the conviction may, in addition to another penalty, order the person convicted to pay compensation or restitution.

2010 c27 s5

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Limitation period

      15. A prosecution under this Act or the regulations shall not be started more than 2 years from date the offence was discovered by the registrar.

2010 c27 s6

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Certificate as evidence

      16. A statement as to

             (a)  the registration or non-registration of a person;

             (b)  the filing or non-filing of a document required to be filed with the registrar; or

             (c)  the time when the facts upon which the proceedings are based 1st came to the knowledge of the registrar

purporting to be certified by the registrar is, without proof of his or her office or signature, in the absence of evidence to the contrary, presumptive proof of the facts stated in it in a prosecution under this Act.

1975-76 No49 s15

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Act may not be waived

      17. This Act applies notwithstanding an agreement or waiver to the contrary.

1975-76 No49 s16

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Appeal

      18. A person aggrieved by a decision or order of the registrar may, in accordance with the Financial Services Appeal Board Act , appeal that decision or order to the board established under that Act.

2005 cF-9.1 s15

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Rep. by 2005 cF-9.1 s15

      19. [Rep. by 2005 cF-9.1 s15]

2005 cF-9.1 s15