Mortgage Brokers Act, R.S.O. 1990, c. M.39

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Revoked/spent regulations under this Act

	repealed on July 1, 2008
	December 20, 2006 – June 30, 2008
	June 22, 2006 – December 19, 2006
	March 31, 2006 – June 21, 2006
	January 1, 2006 – March 30, 2006
	December 15, 2005 – December 31, 2005
	November 1, 2005 – December 14, 2005
	June 17, 2004 – October 31, 2005
	December 13, 2002 – June 16, 2004
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R.R.O. 1990, Reg. 798

GENERAL

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Mortgage Brokers Act

R.S.O. 1990, CHAPTER M.39

Note: This Act was repealed on July 1, 2008. See: 2006, c. 29, ss. 58, 66 (2).

Last amendment: 2006, c. 29, s. 58.

SKIP TABLE OF CONTENTS

CONTENTS


1.	Interpretation
2.	Exemptions
4.	Registration required
5.	Registration of mortgage brokers
6.	Refusal to register
7.	Proposal to refuse to register, to revoke, etc.
Cost of Borrowing
7.1	Definition of “cost of borrowing”
7.2	Disclosure of cost of borrowing
7.3	Additional disclosure – term mortgages
7.4	Additional disclosure – other mortgages
7.5	Statement re mortgage renewal
7.6	Disclosure in advertising
7.7	Disclosure on behalf of other persons
7.8	Regulations re disclosure
8.	Resident requirements re individuals
9.	Resident requirements re corporations
10.	Further applications
11.	Interpretation, ss. 11 to 19
12.	Mortgage transactions where land outside Ontario
13.	Material filed with prospectus
14.	Inquiries by Superintendent
15.	Refusal of certificate of acceptance
16.	Revocation of certificate of acceptance
17.	Amendment of prospectus
18.	Expiration of certificate of acceptance
19.	Advertising
20.	Investigation of complaints
21.	Inspection
22.	Powers on inspection
24.	Investigations by Superintendent
26.	Order to refrain from dealing with assets
27.	Required filings
28.	False advertising
29.	Service
30.	Restraining orders
30.1	Appeal to Divisional Court
31.	Offences
33.	Regulations
34.	Forms
35.	Review of Act

Interpretation

1. (1) In this Act,

“bank” means a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada); (“banque”)

“business premises” does not include a dwelling; (“locaux commerciaux”)

“dwelling” means any premises or any part thereof occupied as living accommodation; (“logement”)

“equity share” means a share of a class of shares that carries a voting right either under all circumstances or under some circumstances that have occurred and are continuing; (“action participante”)

“Minister” means the Minister of Finance; (“ministre”)

“mortgage” has the same meaning as in the Mortgages Act; (“hypothèque”)

“mortgage broker” means a person who carries on the business of lending money on the security of real estate, whether the money is the person’s money or that of another person, or who holds himself, herself or itself out as or who by an advertisement, notice or sign indicates that the person is a mortgage broker, or a person who carries on the business of dealing in mortgages; (“courtier en hypothèques”)

“non-resident” means an individual, corporation or trust that is not a resident; (“non-résident”)

“prescribed” means prescribed by this Act or the regulations; (“prescrit”)

“registered” means registered under this Act; (“inscrit”)

“regulations” means the regulations made under this Act; (“règlements”)

“resident” means,

(a) an individual who is a Canadian citizen or has been lawfully admitted to Canada for permanent residence and who is ordinarily resident in Canada,

(b) a corporation that is incorporated, formed or organized in Canada and that is controlled directly or indirectly by persons who are residents or by a resident trust, or

(c) a trust that is established by resident individuals or a resident corporation or one in which resident individuals or corporations hold more than 50 per cent of the beneficial interest; (“résident”)

“Superintendent” means the Superintendent of Financial Services appointed under the Financial Services Commission of Ontario Act, 1997; (“surintendant”)

“Tribunal” means the Financial Services Tribunal established under the Financial Services Commission of Ontario Act, 1997. (“Tribunal”) R.S.O. 1990, c. M.39, s. 1 (1); 1994, c. 27, s. 91 (1); 1997, c. 28, s. 173; 2001, c. 8, s. 186.

Note: Despite the re-enactment of the definition of “Tribunal” by the Statutes of Ontario, 1997, chapter 28, subsection 173 (4), The Commercial Registration Appeal Tribunal shall continue to conduct, and decide issues raised in, proceedings that were commenced under the Act but not concluded on July 1, 1998. See: 1997, c. 28, s. 173 (5).

Note: Despite subsection 173 (5) of the Financial Services Commission of Ontario Act, 1997, the Licence Appeal Tribunal shall conduct, and decide issues raised in, proceedings under this Act that were before the Commercial Registration Appeal Tribunal immediately before April 1, 2000. See: 1999, c. 12, Sched. G, s. 28.

Control

(2) For the purposes of clause (b) of the definition of “resident” in section 1, a corporation shall be deemed to be controlled by another person or corporation or by two or more corporations if,

(a) equity shares of the first-mentioned corporation carrying more than 50 per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of such other person or corporation or by or for the benefit of such other corporations; and

(b) the votes carried by such securities are sufficient, if exercised, to elect a majority of the board of directors of the first-mentioned corporation. R.S.O. 1990, c. M.39, s. 1 (2).

Exemptions

2. This Act, except sections 11 to 21, does not apply to,

(a) corporations registered under the Insurance Act or the Investment Contracts Act;

(b) corporations registered under the Loan and Trust Corporations Act that are not also registered under the Real Estate and Business Brokers Act, 2002;

(d) credit unions;

(e) non-resident insurance companies loaning on the security of first mortgages or acquiring first mortgages of Ontario real estate under section 22 of the Extra-Provincial Corporations Act;

(f) an employee of a party to a mortgage transaction when the employee is acting for or on behalf of his or her employer. R.S.O. 1990, c. M.39, s. 2; 2001, c. 8, s. 187; 2002, c. 30, Sched. E, s. 11 (1).

3. Repealed: 1997, c. 28, s. 174.

Registration required

4. (1) No person shall carry on business as a mortgage broker unless the person is registered by the Superintendent under this Act. R.S.O. 1990, c. M.39, s. 4 (1); 1997, c. 28, s. 172 (1).

Name and place of business

(2) A registered mortgage broker shall not carry on business in a name other than the name in which the mortgage broker is registered or invite the public to deal at a place other than that authorized by the registration. R.S.O. 1990, c. M.39, s. 4 (2).

Publication of registration

(3) No person shall publish or cause to be published in writing any representation that the person is registered under this Act. R.S.O. 1990, c. M.39, s. 4 (3).

Registered real estate brokers

(4) Every person who is registered as a real estate broker under the Real Estate and Business Brokers Act, 2002 shall, so long as the person is so registered, be deemed to be registered as a mortgage broker under this Act. R.S.O. 1990, c. M.39, s. 4 (4); 2002, c. 30, Sched. E, s. 11 (2).

Registration of mortgage brokers

5.(1)An applicant is entitled to registration or renewal of registration by the Superintendent except where,

(a) having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of business; or

(b) the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty; or

(i) having regard to its financial position, it cannot reasonably be expected to be financially responsible in the conduct of its business, or

(ii) the past conduct of its officers or directors affords reasonable grounds for belief that its business will not be carried on in accordance with law and with integrity and honesty; or

(d) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act or the regulations; or

(e) the applicant fails to comply with section 8 or 9, as the case may be. R.S.O. 1990, c. M.39, s. 5 (1); 1997, c. 28, s. 172 (1).

Conditions of registration

(2)A registration is subject to such terms and conditions to give effect to the purposes of this Act as are consented to by the applicant, imposed by the Tribunal or the Superintendent or prescribed by the regulations. R.S.O. 1990, c. M.39, s. 5 (2); 1997, c. 28, ss. 172 (2), 175 (1).

Same, Superintendent’s proposal

(3)Subject to section 7, the Superintendent may impose terms and conditions on the registration of an applicant or registrant. 1997, c. 28, s. 175 (2).

Refusal to register

6.(1)Subject to section 7, the Superintendent may refuse to register an applicant where in the Superintendent’s opinion the applicant is disentitled to registration under section 5. R.S.O. 1990, c. M.39, s. 6 (1); 1997, c. 28, s. 172 (1).

Revocation

(2)Subject to section 7, the Superintendent may refuse to renew or may suspend or revoke a registration for any reason that would disentitle the registrant to registration under section 5 if the registrant were an applicant, or where the registrant is in breach of a term or condition of the registration. R.S.O. 1990, c. M.39, s. 6 (2); 1997, c. 28, s. 172 (1).

Proposal to refuse to register, to revoke, etc.

7.(1)If the Superintendent proposes to refuse to grant or renew a registration, proposes to impose terms and conditions on the registration of an applicant or a registrant or proposes to suspend or revoke a registration, the Superintendent shall serve notice of the proposal, together with written reasons for it, on the applicant or registrant. 1997, c. 28, s. 176 (1).

Notice requiring hearing

(2)A notice under subsection (1) shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within fifteen days after the notice under subsection (1) is served, notice in writing requiring a hearing to the Superintendent and the Tribunal. R.S.O. 1990, c. M.39, s. 7 (2); 1997, c. 28, s. 172.

Powers of Registrar where no hearing

(3)Where an applicant or registrant does not require a hearing by the Tribunal in accordance with subsection (2), the Superintendent may carry out the proposal stated in the notice under subsection (1). R.S.O. 1990, c. M.39, s. 7 (3); 1997, c. 28, s. 172.

Powers of Tribunal where hearing

(4)Where an applicant or registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the Superintendent at the hearing, may by order direct the Superintendent to carry out the Superintendent’s proposal or refrain from carrying out the proposal and to take such action as the Tribunal considers the Superintendent ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Superintendent. R.S.O. 1990, c. M.39, s. 7 (4); 1997, c. 28, s. 172.

Conditions of order

(5)The Tribunal may attach such terms and conditions to its order or to the registration as it considers proper to give effect to the purposes of this Act. R.S.O. 1990, c. M.39, s. 7 (5); 1997, c. 28, s. 172 (2).

Parties

(6)The Superintendent, the applicant or registrant who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section. R.S.O. 1990, c. M.39, s. 7 (6); 1997, c. 28, s. 172.

Voluntary cancellation

(7)Despite subsection (1), the Superintendent may cancel a registration upon the request in writing of the registrant in the form approved by the Superintendent surrendering the registrant’s registration. R.S.O. 1990, c. M.39, s. 7 (7); 1997, c. 19, s. 15 (1); 1997, c. 28, s. 172 (1); 1999, c. 12, Sched. I, s. 6 (1).

Continuation of registration pending renewal

(8)Where, within the time prescribed therefor or, if no time is prescribed, before expiry of the registration, a registrant has applied for renewal of a registration and paid the fee established by the Minister, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) where the registrant is served with notice that the Superintendent proposes to refuse to grant the renewal, until the time for giving notice requiring a hearing has expired and, where a hearing is required, until the Tribunal has made its order. R.S.O. 1990, c. M.39, s. 7 (8); 1997, c. 19, s. 15 (2); 1997, c. 28, s. 172.

When order effective

(9)Even though a registrant appeals from an order of the Tribunal under section 30.1, the order takes effect immediately but the Tribunal may grant a stay until disposition of the appeal. 1997, c. 28, s. 176 (2).

Note: On a day to be named by proclamation of the Lieutenant Governor, the Act is amended by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 6 (2) by adding the following section:

Cost of Borrowing

Definition of “cost of borrowing”

7.1In sections 7.2 to 7.8,

“cost of borrowing”, for a mortgage, means,

(a) the interest or discount applicable to the mortgage,

(b) any amount charged in connection with the mortgage that is payable by the borrower to the mortgage broker or the lender,

(c) any amount charged in connection with the mortgage that is payable by the borrower to a person other than the mortgage broker or lender, where the amount is chargeable, directly or indirectly, by the person to the mortgage broker or lender, and

(d) any charge prescribed by the regulations as included in the cost of borrowing,

but does not include any charge prescribed by the regulations as excluded from the cost of borrowing.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Disclosure of cost of borrowing

7.2(1)A mortgage broker shall disclose to each borrower the cost of borrowing and any other information prescribed for the purposes of this section by the regulations.

Same

(2)For the purposes of disclosure required by subsection (1), the cost of borrowing,

(a) shall be calculated on the basis that all obligations of the borrower are duly fulfilled;

(b) shall be calculated in accordance with the regulations;

(d) where required by the regulations, shall be expressed as an amount in dollars and cents.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Additional disclosure – term mortgages

7.3A mortgage broker shall disclose the following to a borrower with respect to a mortgage if the mortgage is required to be repaid on a fixed future date or by instalments:

1. Whether the borrower has the right to repay the amount borrowed before the maturity of the mortgage.

2. Any terms and conditions relating to a right described in paragraph 1, including particulars of the circumstances in which the borrower may exercise the right.

3. Whether any portion of the cost of borrowing for the mortgage is to be rebated to the borrower or any charge or penalty is to be imposed on the borrower, if the borrower exercises a right described in paragraph 1.

4. The manner in which any rebate, charge or penalty referred to in paragraph 3 is to be calculated.

5. Particulars of any charges or penalties to be imposed on the borrower if the borrower fails to repay the amount of the mortgage at maturity or fails to pay an instalment on the day the instalment is due to be paid.

6. If the mortgage broker is the lender, particulars of any prescribed change relating to the mortgage agreement or the cost of borrowing for the mortgage.

7. Particulars of any rights or obligations of the borrower prescribed by the regulations for the purposes of this section.

8. Any other information prescribed by the regulations for the purposes of this section.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Additional disclosure – other mortgages

7.4(1)A mortgage broker shall disclose the following to a person if there is an arrangement to enter into a loan secured by a mortgage with the person in respect of which section 7.3 does not apply:

1. Particulars of any charges or penalties to be imposed on the person if he or she fails to pay an amount in accordance with the arrangement.

2. Particulars of any charges for which the person becomes responsible by entering the arrangement.

3. If the mortgage broker is the lender, particulars of any prescribed change relating to the arrangement or the cost of borrowing under the arrangement.

4. Particulars of any rights or obligations of the person prescribed by the regulations for the purposes of this section.

5. Any other information prescribed by the regulations for the purposes of this section.

Interpretation

(2)For the purposes of subsection (1), an arrangement for the making of a loan secured by a mortgage includes an arrangement for a line of credit.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Statement re mortgage renewal

7.5The mortgage broker shall disclose to the borrower such information respecting renewal of the mortgage as is prescribed by the regulations.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Disclosure in advertising

7.6No person shall authorize any advertisement for a mortgage which purports to contain information relating to the cost of borrowing or any other prescribed matter unless the advertisement contains the information that may be required by the regulations and is in the form and manner that may be prescribed.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Disclosure on behalf of other persons

7.7Subject to the regulations, sections 7.2 to 7.5 and the regulations under those sections do not apply to a mortgage broker where one of the persons set out in Column 1 of the following Table, acting as a lender, authorizes a mortgage broker to provide a disclosure statement on its behalf, that disclosure statement meets the disclosure requirements under the legislation set out in Column 2 of the Table, opposite to that person, and the mortgage broker does so:

TABLE

Column 1	Column 2
A bank	Bank Act (Canada)
An insurance company	Insurance Act
A trust corporation	Loan and Trust Corporations Act
A loan corporation	Loan and Trust Corporations Act
A credit union	Credit Unions and Caisses Populaires Act, 1994
Another mortgage broker	This Act

Note: On a day to be named by proclamation of the Lieutenant Governor, the Table is repealed by the Statutes of Ontario, 2005, chapter 31, Schedule 16, section 1 and the following substituted:

TABLE

Column 1	Column 2
A bank	Bank Act (Canada)
A retail association as defined under the Cooperative Credit Associations Act (Canada)	Cooperative Credit Associations Act (Canada)
A credit union	Credit Unions and Caisses Populaires Act, 1994
An insurance company	Insurance Act
An insurance company	Insurance Companies Act (Canada)
A trust corporation	Trust and Loan Companies Act (Canada)
A loan corporation	Trust and Loan Companies Act (Canada)
Another mortgage broker	This Act

See: 2005, c. 31, Sched. 16, ss. 1, 3 (2).

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Regulations re disclosure

7.8(1)The Lieutenant Governor in Council may make regulations,

(a) prescribing, for the purposes of section 7.1, charges that are included in the cost of borrowing and charges that are excluded from the cost of borrowing;

(b) prescribing information other than the cost of borrowing that must be disclosed under section 7.2;

(d) prescribing the circumstances in which the cost of borrowing must be expressed as an amount in dollars and cents for the purposes of section 7.2;

(e) prescribing the manner of calculating any rebate referred to in paragraph 4 of section 7.3;

(f) prescribing changes for the purposes of paragraph 6 of section 7.3 and paragraph 3 of subsection 7.4 (1);

(g) prescribing rights and obligations of borrowers for the purposes of paragraph 7 of section 7.3 and paragraph 4 of subsection 7.4 (1);

(h) prescribing information that must be disclosed under paragraph 8 of section 7.3 and paragraph 5 of subsection 7.4 (1);

(i) prescribing information for the purposes of section 7.5;

(j) prescribing matters for the purposes of section 7.6 and respecting the form, manner and content of advertisements for the purposes of section 7.6;

(k) prescribing the time, manner and form of any disclosure required under sections 7.3 to 7.7;

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (k) is amended by the Statutes of Ontario, 2005, chapter 31, Schedule 16, section 2 by striking out “sections 7.3” and substituting “sections 7.2”. See: 2005, c. 31, Sched. 16, ss. 2, 3 (2).

(l) prescribing classes of mortgages in respect of which some or all of the requirements of sections 7.2 to 7.7 do not apply;

(m) prohibiting the imposition by a mortgage broker who is the lender of any charge or penalty referred to in section 7.3 or 7.4;

(n) governing the nature and amount of any charge or penalty referred to in section 7.3 or 7.4 that may be imposed by a mortgage broker who is the lender, including but not limited to,

(i) regulations providing that such a charge or penalty shall not exceed an amount prescribed in the regulation, and

(ii) regulations respecting the costs of the mortgage broker that may be included or must be excluded in the determination of the charge or penalty;

(o) respecting information to be disclosed under the circumstances set out in section 7.7 and the form and manner of disclosing that information;

(p) respecting any other matter or thing that is necessary to carry out the purposes of sections 7.2 to 7.7.

Same

(2)A regulation made under clause (1) (a) may exclude charges described in clause (a), (b) or (c) of the definition of ‘‘cost of borrowing” in section 7.1.

Same

(3)A regulation made under subsection (1) may be general or particular in its application and may be restricted in its application to the class or classes of mortgages or of lenders set out in the regulation.

See: 1999, c. 12, Sched. I, ss. 6 (2), 8 (2).

Resident requirements re individuals

8.(1)Subject to subsection (2), no individual shall carry on business in Ontario as a mortgage broker unless,

(a) he or she is a resident; or

(b) where he or she is a member of a partnership or an association, syndicate or organization of individuals, every member thereof is a resident.

Idem

(2)An individual who was carrying on business as a registered mortgage broker immediately before the 2nd day of October, 1973, and who on that day was in contravention of subsection (1), may continue to carry on business subject to the provisions of this Act if,

(a) his or her interest or any part thereof is not transferred to or for the benefit of a non-resident; or

(b) where he or she is a member of a partnership or an association, syndicate or organization of individuals, no person who is a non-resident is admitted as a member thereof. R.S.O. 1990, c. M.39, s. 8.

Resident requirements re corporations

9.(1)No corporation shall carry on business in Ontario as a mortgage broker if,

(a) the total number of equity shares of the corporation beneficially owned directly or indirectly by non-residents or over which non-residents exercise control or direction exceeds 25 per cent of the total number of issued and outstanding equity shares of the corporation;

(b) the total number of equity shares of the corporation beneficially owned directly or indirectly by a non-resident over which the non-resident exercises control or direction, together with other shareholders associated with the non-resident, if any, exceeds 10 per cent of the total number of issued and outstanding equity shares of the corporation; or

Idem

(2)In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total of all the shares actually owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

Idem

(3)A corporation that was carrying on business as a registered mortgage broker immediately before the 2nd day of October, 1973, and which on that day was in contravention of subsection (1), may continue to carry on business, subject to the provisions of this Act,

(a) in the case of a contravention of clause (1) (a) or (b), if no transfer of equity shares or beneficial interest therein including their control or direction is made to a non-resident or person associated with the non-resident excepting when the result would be in compliance with clauses (1) (a) and (b); or

(b) in the case of a contravention of clause (1) (c), until the 1st day of January, 1975, but a corporation incorporated on or after the 30th day of October, 1973 and before the 1st day of January, 1975 by or under an Act of Ontario, Canada or a province of Canada may, despite clauses (1) (a) and (b), be registered in the place of the first-mentioned corporation if the equity shares of the new corporation or beneficial interest therein, including their control or direction, held by non-residents are held directly or indirectly in the same manner as the equity shares of the first-mentioned corporation, but where the new corporation is in contravention of clause (1) (a) or (b), clause (a) of this subsection applies.

Associated shareholders

(4)For the purpose of this section, a shareholder shall be deemed to be associated with another shareholder if,

(a) one shareholder is a corporation of which the other shareholder is an officer or director;

(b) one shareholder is a partnership of which the other shareholder is a partner;

(d) both shareholders are corporations and one shareholder is controlled directly or indirectly by the same individual or corporation that controls directly or indirectly the other shareholder;

(e) both shareholders are members of a voting trust where the trust relates to shares of a corporation; or

(f) both shareholders are associated within the meaning of clauses (a) to (e) with the same shareholder.

Joint ownership

(5)For the purpose of this section, where an equity share of the corporation is held jointly and one or more of the joint holders thereof is a non-resident, the share shall be deemed to be held by a non-resident. R.S.O. 1990, c. M.39, s. 9.

Further applications

10.A further application for registration may be made upon new or other evidence or where it is clear that material circumstances have changed. R.S.O. 1990, c. M.39, s. 10.

Interpretation, ss. 11 to 19

11. (1) In sections 11 to 19,

“mortgage transaction” means the borrowing of money on the security of real property or the assignment of a mortgage for consideration; (“opération hypothécaire”)

“subdivision” means improved or unimproved land divided or proposed to be divided into five or more lots or other units for the purpose of sale or lease and includes land divided or proposed to be divided into condominium units. (“lotissement”) R.S.O. 1990, c. M.39, s. 11 (1).

Application of ss. 12 to 19

(2) Sections 12 to 19 apply to mortgage transactions on the security of lots or units in a subdivision outside Ontario where the mortgagor or assignor is the owner of an interest in five or more such lots or units or has been the owner of such an interest at any time in the preceding five years. R.S.O. 1990, c. M.39, s. 11 (2).

Application of ss. 12 to 19

(3) Sections 12 to 19 do not apply to mortgage transactions in which the mortgagee or assignee is,

(a) a bank;

(b) a loan or trust corporation registered under the Loan and Trust Corporations Act; or

Mortgage transactions where land outside Ontario

12.(1)No person shall enter into or negotiate a mortgage transaction in respect of a lot or unit of land in a subdivision located outside Ontario unless,

(a) a prospectus containing the prescribed information has been filed with the Superintendent and the Superintendent has issued a certificate of acceptance;

(b) the person is a registered mortgage broker or the mortgage transaction is negotiated by a registered mortgage broker;

(c) a copy of the prospectus or such shorter form of the prospectus as the Superintendent approves for distribution to the public has been delivered to the prospective lender or assignee;

(d) the prospective lender or assignee has in writing acknowledged receipt of a copy of a prospectus or shorter form of prospectus and has been afforded an opportunity to read it. R.S.O. 1990, c. M.39, s. 12 (1); 1997, c. 28, s. 172 (1).

Inspection of acknowledgments

(2)Every acknowledgment referred to in subsection (1) shall be retained by the mortgagor, assignor or mortgage broker and be available for inspection by the Superintendent for a period of not less than three years. R.S.O. 1990, c. M.39, s. 12 (2); 1997, c. 28, s. 172 (1).

Rescission

(3)A lender or assignee who has entered into a mortgage transaction to which subsection (1) applies is entitled to rescission of the contract if,

(a) subsection (1) has not been complied with; and

(b) written notice of exercising the right of rescission is served on the mortgagor, assignor or mortgage broker within ninety days of the signing of the contract.

Onus

(4)In an action for rescission under subsection (3), the onus of proving compliance with subsection (1) rests upon the mortgagor or assignor.

Rights reserved

(5)The right of rescission provided in this section is in addition to any other rights that the lender or assignee may have in respect of the contract or arrangement. R.S.O. 1990, c. M.39, s. 12 (3-5).

Material filed with prospectus

13.Each prospectus submitted to the Superintendent for filing shall be accompanied by,

(a) an affidavit of the proposed mortgagor or assignor or, where the proposed mortgagor or assignor is a corporation, any two officers or an officer and a director, as to the correctness of every matter of fact stated in the prospectus;

(b) a copy of every plan referred to in the prospectus;

(d) such documents as the Superintendent may require to support any statement of fact, proposal or estimate set out in the prospectus;

(e) such financial particulars of the proposed mortgagor or assignor as the Superintendent may require; and

(f) the fees established by the Minister. R.S.O. 1990, c. M.39, s. 13; 1997, c. 19, s. 15 (3); 1997, c. 28, s. 172 (1).

Inquiries by Superintendent

14.(1)The Superintendent may make such inquiries with respect to a prospectus as are necessary to determine whether a certificate of acceptance should be issued, including,

(a) an examination of the subdivision and any of the surrounding circumstances; and

(b) the obtaining of reports from public authorities or others within or outside Ontario. R.S.O. 1990, c. M.39, s. 14 (1); 1997, c. 28, s. 172 (1).

Costs

(2)The reasonable and proper costs of such inquiries or reports shall be borne by the person on whose behalf the prospectus was filed. R.S.O. 1990, c. M.39, s. 14 (2).

Refusal of certificate of acceptance

15.(1)The Superintendent shall grant a certificate of acceptance except where it appears that,

(a) the prospectus contains any statement, promise or forecast that is misleading, false or deceptive, or has the effect of concealing material facts;

(b) adequate provision has not been made for the protection of deposits or other funds or for assurance of title or other interest contracted for;

(d) the requirements of section 13 have not been complied with in any substantial respect;

(e) the proposed methods of offering do not accord with standard real estate practices in Ontario. R.S.O. 1990, c. M.39, s. 15 (1); 1997, c. 28, s. 172 (1).

Application of s. 7

(2)Where the Superintendent proposes to refuse to grant a certificate of acceptance, the Superintendent shall serve notice of the proposal to refuse on the person on whose behalf the prospectus was filed and section 7 applies with necessary modifications to the proposal in the same manner as to a proposal to refuse to register an applicant. R.S.O. 1990, c. M.39, s. 15 (2); 1997, c. 28, s. 172 (1).

Revocation of certificate of acceptance

16.(1)Where it appears to the Superintendent, subsequent to the filing of a prospectus and the granting of a certificate of acceptance therefor, that any of the conditions referred to in subsection 15 (1) exist or there has been any contravention of this Act or the regulations, the Superintendent may revoke the certificate of acceptance, which thereupon shall be deemed not to be issued. R.S.O. 1990, c. M.39, s. 16 (1); 1997, c. 28, s. 172 (1).

Application of s. 7

(2)Subject to subsection (3), the Superintendent shall not revoke a certificate of acceptance and make an order under subsection (1) without serving notice of the proposal to revoke the certificate and make the order, together with written reasons therefor, on the person on whose behalf the prospectus was filed, and section 7 applies with necessary modifications to the proposal in the same manner as to a proposal by the Superintendent to revoke a registration. R.S.O. 1990, c. M.39, s. 16 (2); 1997, c. 28, s. 172 (1).

Interim suspension

(3)Where the Superintendent proposes to revoke a certificate of acceptance, the Superintendent may, where the Superintendent considers it to be necessary in the public interest, by order temporarily suspend the certificate of acceptance and the order shall take effect immediately and, where a hearing is required, the order expires fifteen days from the date of the notice requiring the hearing unless the hearing is commenced in which case the Tribunal holding the hearing may extend the time of expiration until the hearing is concluded. R.S.O. 1990, c. M.39, s. 16 (3); 1997, c. 28, s. 172.

Amendment of prospectus

17.(1)If a change occurs with regard to any of the matters set out in any prospectus,

(a) that would have the effect of rendering a statement in the prospectus false or misleading; or

(b) that brings into being a fact or proposal that should have been disclosed in the prospectus if the fact or proposal had existed at the time of filing,

the person who filed the prospectus shall, within twenty days of the change occurring, notify the Superintendent in writing of the change and shall file an amendment to the prospectus or a new prospectus as the Superintendent may direct. R.S.O. 1990, c. M.39, s. 17 (1); 1997, c. 28, s. 172 (1).

Application of ss. 13 to 16

(2)Sections 13 to 16 apply with necessary modifications where a prospectus is amended or a new prospectus filed under subsection (1). R.S.O. 1990, c. M.39, s. 17 (2).

Expiration of certificate of acceptance

18.A certificate of acceptance expires twelve months after it is issued and shall thereupon be deemed not to be issued, subject to the right to file a new prospectus and obtain a certificate of acceptance therefor in accordance with this Act. R.S.O. 1990, c. M.39, s. 18.

Advertising

19.No person shall publish or cause to be published any advertisement for mortgage transactions on a lot or unit in a subdivision located outside Ontario until the advertisement has been approved by the Superintendent. R.S.O. 1990, c. M.39, s. 19; 1997, c. 28, s. 172 (1).

Investigation of complaints

20.(1)Where the Superintendent receives a complaint in respect of a mortgage broker and so requests in writing, the mortgage broker shall furnish the Superintendent with such information respecting the matter complained of as the Superintendent requires. R.S.O. 1990, c. M.39, s. 20 (1); 1997, c. 28, s. 172 (1).

Idem

(2)The request under subsection (1) shall indicate the nature of the inquiry involved. R.S.O. 1990, c. M.39, s. 20 (2).

Idem

(3)For the purposes of subsection (1), the Superintendent or any person designated in writing by the Superintendent may at any reasonable time enter upon the business premises of the mortgage broker to make an inspection in relation to the complaint. R.S.O. 1990, c. M.39, s. 20 (3); 1997, c. 28, s. 172 (1).

Inspection

21.(1)The Superintendent or any person designated by the Superintendent in writing may at any reasonable time enter upon the business premises of the registrant to make an inspection to ensure that the provisions of this Act and the regulations relating to registration and the maintenance of trust accounts are being complied with. R.S.O. 1990, c. M.39, s. 21 (1); 1997, c. 28, s. 172 (1).

Idem

(2)Where the Superintendent has reasonable and probable grounds to believe that any person is acting as a mortgage broker while unregistered, the Superintendent or any person designated by the Superintendent in writing may at any reasonable time enter upon such person’s business premises to make an inspection for the purpose of determining whether or not the person is in contravention of section 4. R.S.O. 1990, c. M.39, s. 21 (2); 1997, c. 28, s. 172 (1).

Powers on inspection

22.(1)Upon an inspection under section 20 or 21, the person inspecting,

(a) is entitled to free access to all books of account, cash, documents, bank accounts, vouchers, correspondence and records of the person being inspected that are relevant for the purposes of the inspection; and

(b) may, upon giving a receipt therefor, remove any material referred to in clause (a) that relates to the purpose of the inspection for the purpose of making a copy thereof, provided that such copying is carried out with reasonable dispatch and the material in question is promptly thereafter returned to the person being inspected,

and no person shall obstruct the person inspecting or withhold or destroy, conceal or refuse to furnish any information or thing required by the person inspecting for the purposes of the inspection.

Admissibility of copies

(2)Any copy made as provided in subsection (1) and purporting to be certified by an inspector is admissible in evidence as proof, in the absence of evidence to the contrary, of the original. R.S.O. 1990, c. M.39, s. 22.

23.Repealed: 1997, c. 28, s. 177.

Investigations by Superintendent

24.(1)Where, upon a statement made under oath, the Superintendent believes on reasonable and probable grounds that any person has,

(a) contravened any of the provisions of this Act or the regulations;

(b) committed an offence under the Criminal Code (Canada) or under the law of any jurisdiction that is relevant to the person’s fitness for registration under this Act;

(c) by any false, misleading or deceptive statement or advertisement, representation or promise, or by any dishonest concealment of material facts, induced or attempted to induce any person to borrow money or to be responsible for the repayment thereof or to agree to the terms of any transaction with respect to money lent on the security of a mortgage; or

(d) induced or attempted to induce any person to pay or be responsible for the payment of excessive or exorbitant fees or expenses in connection with a loan on the security of a mortgage,

the Superintendent may by order appoint one or more persons to make an investigation to ascertain whether such a contravention of the Act or regulation or the commission of such an offence or such conduct has occurred and the person or persons appointed shall report the result of the investigation to the Superintendent. R.S.O. 1990, c. M.39, s. 24 (1); 1997, c. 28, s. 172 (1).

Powers of investigator

(2)For purposes relevant to the subject-matter of an investigation under this section, the person or persons appointed to make the investigation may inquire into and examine the affairs of the person in respect of whom the investigation is being made and may,

(a) upon production of the appointment, enter at any reasonable time the business premises of such person and examine books, papers, documents and things relevant to the subject-matter of the investigation; and

(b) inquire into negotiations, transactions, loans, borrowings made by or on behalf of or in relation to such person and into property, assets or things owned, acquired or alienated in whole or in part by the person or any person acting on the person’s behalf that are relevant to the subject-matter of the investigation,

and for the purposes of the inquiry, the person making the investigation has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to such inquiry as if it were an inquiry under that Act.

Obstruction of investigator

(3)No person shall obstruct a person appointed to make an investigation under this section or withhold from the person or conceal or destroy any books, papers, documents or things relevant to the subject-matter of the investigation.

Search warrant

(4)Where a justice of the peace is satisfied, upon an application made without notice by the person making an investigation under this section, that the investigation has been ordered and that such person has been appointed to make it and that there is reasonable ground for believing there are in any building, dwelling, receptacle or place any books, papers, documents or things relating to the person whose affairs are being investigated and to the subject-matter of the investigation, the justice of the peace may, whether or not an inspection has been made or attempted under clause (2) (a), issue an order authorizing the person making the investigation, together with such police officer or officers as the person calls upon for assistance, to enter and search, if necessary by force, such building, dwelling, receptacle or place for such books, papers, documents or things and to examine them, but every such entry and search shall be made between sunrise and sunset unless the justice of the peace, by the order, authorizes the person making the investigation to make the search at night.

Removal of books, etc.

(5)Any person making an investigation under this section may, upon giving a receipt therefor, remove any books, papers, documents or things examined under clause (2) (a) or subsection (4) relating to the person whose affairs are being investigated and to the subject-matter of the investigation for the purpose of making copies of such books, papers or documents, but such copying shall be carried out with reasonable dispatch and the books, papers or documents in question shall be promptly thereafter returned to the person whose affairs are being investigated.

Admissibility of copies

(6)Any copy made as provided in subsection (5) and certified to be a true copy by the person making the investigation is admissible in evidence as proof, in the absence of evidence to the contrary, of the original book, paper or document and its contents. R.S.O. 1990, c. M.39, s. 24 (2-6).

Appointment of experts

(7)The Superintendent may appoint any expert to examine books, papers, documents or things examined under clause (2) (a) or under subsection (4). 1997, c. 28, s. 178.

25.Repealed: 1997, c. 28, s. 179.

Order to refrain from dealing with assets

26. (1) Where,

(a) an investigation of any person has been ordered under section 24; or

(b) criminal proceedings or proceedings in relation to a contravention of any Act or regulation are about to be or have been instituted against a person that are connected with or arise out of the business in respect of which such person is registered,

the Superintendent, if he or she believes it advisable for the protection of clients or customers of the person referred to in clause (a) or (b) may, in writing, direct any person having on deposit or under control or for safekeeping any assets or trust funds of the person referred to in clause (a) or (b) to hold such assets or trust funds or direct the person referred to in clause (a) or (b) to refrain from withdrawing any such assets or trust funds from any person having any of them on deposit or under control or for safekeeping or to hold such assets or any trust funds of clients, customers or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver or liquidator appointed under the Bankruptcy Act (Canada), the Courts of Justice Act, the Corporations Act, the Business Corporations Act or the Winding-up Act (Canada) or until the Superintendent revokes or the Tribunal cancels such direction or consents to the release of any particular assets or trust funds from the direction but, in the case of a bank, loan or trust corporation, the direction only applies to the office, branches or agencies thereof named in the direction. R.S.O. 1990, c. M.39, s. 26 (1); 1997, c. 28, ss. 172, 180 (1).

Bond in lieu

(2) Subsection (1) does not apply where the person referred to in clause (1) (a) or (b) files with the Superintendent,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance; or

in such form, terms and amount as the Superintendent may determine. R.S.O. 1990, c. M.39, s. 26 (2); 1997, c. 19, s. 37; 1997, c. 28, s. 172 (1).

Application for direction

(3) Any person in receipt of a direction given under subsection (1) if in doubt as to the application of the direction to any assets or trust funds, or in case of a claim being made thereto by a person not named in the direction, may apply to the Superior Court of Justice which may direct the disposition of such assets or trust funds and may make such order as to costs as seems just. R.S.O. 1990, c. M.39, s. 26 (3); 2006, c. 19, Sched. C, s. 1 (1).

Notice to land registrar

(4) In any of the circumstances mentioned in clause (1) (a) or (b), the Superintendent may in writing notify any land registrar that proceedings are being or are about to be taken that may affect land belonging to the person referred to in the notice, and the notice shall be registered against the lands mentioned therein and has the same effect as the registration of a certificate of pending litigation except that the Superintendent may in writing revoke or modify the notice. R.S.O. 1990, c. M.39, s. 26 (4); 1997, c. 28, ss. 172 (1), 180 (2).

Cancellation of direction or registration

(5) Any person referred to in clause (1) (a) or (b) in respect of whom a direction has been given by the Superintendent under subsection (1) or any person having an interest in land in respect of which a notice has been registered under subsection (4) may, at any time, apply to the Tribunal for cancellation in whole or in part of the direction or registration and the Tribunal shall dispose of the application after a hearing and may, if it finds that such a direction or registration is not required in whole or in part for the protection of clients or customers of the applicant or of other persons interested in the land or that the interests of other persons are unduly prejudiced thereby, cancel the direction or registration in whole or in part, and the applicant, the Superintendent and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal. R.S.O. 1990, c. M.39, s. 26 (5); 1997, c. 28, s. 172.

Court application

(6) The Superintendent may, where he or she has given a direction under subsection (1) or a notice under subsection (4), apply to a judge of the Superior Court of Justice who may give directions or make an order as to the disposition of assets, trust funds or land affected by the direction or notice and as to costs. 1994, c. 27, s. 91 (2); 1997, c. 28, s. 172 (1); 2006, c. 19, Sched. C, s. 1 (1).

Same

(7) An application by the Superintendent for directions under this section may be made without notice to any other person or party. 1994, c. 27, s. 91 (2); 1997, c. 28, s. 172 (1).

Required filings

27. (1) Every mortgage broker shall, within five days after the event, notify the Superintendent in writing of,

(a) a change of address for service;

(b) any change in the officers in the case of a corporation or of the members in the case of a partnership. R.S.O. 1990, c. M.39, s. 27 (1); 1997, c. 28, s. 172 (1).

Idem

(2) The Superintendent shall be deemed to be notified under subsection (1) on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing. R.S.O. 1990, c. M.39, s. 27 (2); 1997, c. 28, s. 172 (1).

Financial statements

(3) Every mortgage broker shall, when required by the Superintendent, file a financial statement showing the matters specified by the Superintendent and signed by the mortgage broker and certified by a person licensed under the Public Accounting Act, 2004. 1997, c. 28, s. 181; 2004, c. 8, s. 46.

Statement confidential

(4) The information contained in a financial statement filed under subsection (3) is confidential and no person shall otherwise than in the ordinary course of his or her duties communicate any such information or allow access to or inspection of the financial statement. R.S.O. 1990, c. M.39, s. 27 (4).

False advertising

28.Where the Superintendent believes on reasonable and probable grounds that a mortgage broker is making false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material, the Superintendent may order the immediate cessation of the use of such material and section 7 applies with necessary modifications to the order in the same manner as to a proposal by the Superintendent to refuse registration and the order of the Superintendent shall take effect immediately, but the Tribunal may grant a stay until the Superintendent’s order becomes final. R.S.O. 1990, c. M.39, s. 28; 1997, c. 28, s. 172.

Service

29.(1)Any notice or order required to be given or served under this Act or the regulations is sufficiently given or served if delivered personally or sent by registered mail addressed to the person to whom delivery or service is required to be made at the latest address for service appearing on the records of the Superintendent. R.S.O. 1990, c. M.39, s. 29 (1); 1997, c. 28, s. 182.

Where service deemed to be made

(2)Where service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person’s control receive the notice or order until a later date. R.S.O. 1990, c. M.39, s. 29 (2).

Exception

(3)Notwithstanding subsections (1) and (2), the Tribunal may order any other method of service in respect of any matter before the Tribunal. R.S.O. 1990, c. M.39, s. 29 (3); 1997, c. 28, c. 172 (2).

Restraining orders

30. (1) Where it appears to the Superintendent that any person does not comply with any provision of this Act, the regulations or an order made under this Act, despite the imposition of any penalty in respect of such non-compliance and in addition to any other rights the Superintendent may have, the Superintendent may apply to the Superior Court of Justice for an order directing such person to comply with such provision, and upon the application, the Court may make such order or such other order as the Court thinks fit. R.S.O. 1990, c. M.39, s. 30 (1); 1997, c. 28, s. 172 (1); 2006, c. 19, Sched. C, s. 1 (1).

Appeal

(2) An appeal lies to the Divisional Court from an order made under subsection (1). R.S.O. 1990, c. M.39, s. 30 (2).

Appeal to Divisional Court

30.1A party to a proceeding before the Tribunal under section 7, subsection 16 (3) or 26 (5) or section 28 may appeal to the Divisional Court from the decision or order of the Tribunal in accordance with the rules of court. 1997, c. 28, s. 183.

Offences

31.(1)Every person who, knowingly,

(a) furnishes false information in any application under this Act or in any statement or return required to be furnished under this Act or the regulations;

(b) fails to comply with any order, direction or other requirement made under this Act; or

and every director or officer of a corporation who knowingly concurs in such furnishing, failure or contravention is guilty of an offence and on conviction is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.

Corporations

(2)Where a corporation is convicted of an offence under subsection (1), the maximum penalty that may be imposed upon the corporation is $200,000 and not as provided therein. R.S.O. 1990, c. M.39, s. 31 (1, 2).

(3)Repealed: 1997, c. 28, s. 184.

Limitation

(4)No proceeding under clause (1) (a) shall be commenced more than one year after the facts upon which the proceeding is based first came to the knowledge of the Superintendent. R.S.O. 1990, c. M.39, s. 31 (4); 1997, c. 28, s. 172 (1).

Limitation

(5)No proceeding under clause (1) (b) or (c) shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Superintendent. 1997, c. 19, s. 15 (5); 1997, c. 28, s. 172 (1).

32. Repealed: 1997, c. 28, s. 185.

Regulations

33.The Lieutenant Governor in Council may make regulations,

(a) exempting persons or classes of persons from this Act or the regulations or any provision thereof in addition to those exempted under section 2;

(b) governing applications for registration or renewal of registration and prescribing terms and conditions of registration;

(d) Repealed: 1997, c. 19, s. 15 (6).

(e) requiring and governing the maintenance of trust accounts by mortgage brokers and prescribing the money that shall be held in trust and the terms and conditions thereof;

(f) requiring and governing the books, accounts and records that shall be kept by mortgage brokers;

(g) prescribing the information that mortgage brokers shall furnish to borrowers;

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (g) is repealed by the Statutes of Ontario, 1999, chapter 12, Schedule I, subsection 6 (3). See: 1999, c. 12, Sched. I, ss. 6 (3), 8 (2).

(h) requiring mortgage brokers to make returns and furnish information to the Superintendent;

(i) requiring any information required to be furnished or contained in any form or return to be verified by affidavit;

(j) Repealed: 1997, c. 28, s. 186.

(k) Repealed: 1997, c. 28, s. 186.

(l) Repealed: 1997, c. 19, s. 15 (6).

(m) prescribing the information required to be contained in a prospectus. R.S.O. 1990, c. M.39, s. 33; 1997, c. 19, s. 15 (6); 1997, c. 28, ss. 172 (1), 186.

Forms

34.(1)The Superintendent may approve the use of forms for any purpose of this Act and the forms may provide for such information to be furnished as the Superintendent may require. 1997, c. 19, s. 15 (7); 1999, c. 12, Sched. I, s. 6 (1).

Fees

(2)The Minister may establish and charge fees for an application for registration, a renewal of registration and for the filing of a prospectus. 1997, c. 19, s. 15 (7).

Review of Act

35.(1)The Superintendent shall undertake a review of this Act for the purpose of recommending to the Minister any amendments that the Superintendent believes will improve the effectiveness and administration of this Act. 1999, c. 12, Sched. I, s. 6 (4).

Same

(2)The Superintendent shall give his or her recommendations to the Minister within one year after this section comes into force. 1999, c. 12, Sched. I, s. 6 (4).

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Mortgage Brokers Act, R.S.O. 1990, c. M.39

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