jswizzle3737/ontario_laws_and_regs huggingface dataset:
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; (c) banks; (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 Repealed: 1997, c. 28, s. 174.
Exemptions
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 Repealed: 1997, c. 28, s. 174.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 (c) the applicant is a corporation and, (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).
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.
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 (c) an insurance company licensed under the Insurance Act. 2001, c. 8, s. 188.
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; (c) a copy of every form of contract 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; (c) the prospectus fails to comply in any substantial respect with any of the requirements prescribed; (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.
Admissibility of copies
23.Repealed: 1997, c. 28, s. 177.
Appointment of experts
25.Repealed: 1997, c. 28, s. 179.
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 (c) contravenes any provision of this Act or the regulations, 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.
Limitation
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; (c) Repealed: 1997, c. 19, s. 15 (6). (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). ______________ Français