S.M. 1985-86, c. 16
The Mortgage Dealers Act
|Table of Contents|
(Assented to July 11, 1985)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act
"applicant" means a person who has applied under this Act for registration as a mortgage dealer or a salesperson and whose application has not been granted, withdrawn or refused and includes, where the context so admits, any person whose name has been proposed in an application for registration as an authorized official of the applicant;
"authorized official" means an official named in the certificate of registration of a registered mortgage dealer;
"commission" means The Manitoba Securities Commission;
"corporation" includes firm, partnership, association, syndicate and any other unincorporated organization;
"deputy registrar" means the person appointed by the commission to act as deputy registrar;
(i) any misrepresentation by word, conduct or manner of a material fact, present or past,
(ii) an omission to disclose a material fact, present or past,
(iii) a promise or representation as to the future that is beyond reasonable expectation and that is not made in good faith,
(iv) the failure, within a reasonable time, properly to account for, or pay over to the person entitled thereto, any moneys received,
(v) the failure, on the part of a registrant to disclose to a borrower or a lender whether the registrant is acting as an agent or a principal,
(vi) any course of conduct or business calculated or put forward with intent to deceive the public or a lender or a purchaser of a mortgage as to the value of any property on which a mortgage is, or is to be, secured,
(vii) the making of any false statement of a material fact in any application, information, material or evidence submitted or given under this Act or the regulations to the commission, its representative or the registrar,
(viii) the gaining of, or attempt to gain, a commission, fee or gross profit so large and so exorbitant as to be unconscionable and unreasonable, and
(ix) generally, any artifice, agreement, device, scheme, course of conduct or business, to obtain money, profit or property, by any of the means hereinbefore set forth or otherwise contrary to law, or by wrongful or dishonest dealing;
"mortgage" means any charge on real property or chattels real for securing money or moneys worth and includes a part of a mortgage or an interest in a mortgage and a mortgage of a mortgage;
"mortgage dealer" means a person who
(i) either directly or indirectly arranges for the investment by another person, in a mortgage, whether that investment is effected, or is intended to be effected, by making a loan secured by a mortgage, by selling a mortgage to that other person or by buying a mortgage for that other person,
(ii) lends money on mortgage and sells mortgages securing the loans, (iii) as principal, buys and sells mortgages or who acts as an agent in the purchase or sale of a mortgage,
(iv) arranges or places mortgages for other persons, whether by obtaining loans for borrowers or by finding mortgage investments for lenders, or both,
(v) registers a mortgage, a mortgage of a mortgage, or a transfer of a mortgage in the mortgage dealer's name where another person or other persons have contributed mortgage moneys or are entitled to share the proceeds of the mortgage, or both,
(vi) for a reward or hope or promise thereof, administers a mortgage for or on behalf of any other person, or
(vii) holds himself or herself out as doing any of the things mentioned in sub-clauses (i) to (vi);
(i) the president, vice-president, secretary-treasurer,
(ii) any managing director, general manager or department manager who is responsible, directly or indirectly, for mortgage transactions or trades in Manitoba,
(iii) the manager of any office or branch in Manitoba,
(iv) all other persons acting in a capacity similar to any of the foregoing, whether so designated or not, and
(v) in the case of a partnership, any partner thereof;
"prescribed" means prescribed by the regulations;
"register" means the record maintained by the registrar for the purpose of recording all registrations, renewals, changes or amendments of registrations, suspensions, cancellations and reinstatements of registrations made under this Act or the regulations;
"registered" means registered or required to be registered under this Act; "registrant" means a person registered and also, where the context so admits, includes an authorized official of a registrant;
"registrar" means the person appointed by the Lieutenant Governor in Council to act as registrar for the purposes of this Act;
"regulations" means the regulations made under this Act.
"salesperson" means an individual other than an authorized official employed or engaged by a registered mortgage dealer to take part in any of the activities mentioned in the definition of mortgage dealer;
Subject to section 3, no person who is not registered under this Act shall act as a mortgage dealer, authorized official or mortgage salesperson.
Subsection (1) does not apply to office staff or persons engaged in clerical, accounting or caretaking duties in the employ of the registered mortgage dealer, and not otherwise engaged in the transaction of mortgage business.
Subsection 2(1) does not apply to
(a) any corporation carrying on the business of an insurer under and in accordance with The Insurance Act;
(c) a trust company or loan company insured under a policy of deposit insurance issued by the Canada Deposit Insurance Corporation;
(d) a credit union operated under, and in accordance with, The Credit Unions and Caisses Populaires Act or the Co-operative Credit Society of Manitoba Ltd.;
(e) a Crown corporation or other agency of the Crown in right of Canada or of a province;
(f) a person who
(i) lends only his or her own money on mortgage or buys a mortgage with his or her own money only, if that person does not, in any calendar year, sell more than 10% of the amount invested in mortgages during the previous calendar year to persons other than a registered mortgage dealer or a person exempted from registration by clause (a), (b), (c), (d) or (e), or
(ii) buys or sells mortgages or invests in mortgages through a registered mortgage dealer, if that person does not engage in any of the activities set out in sub-clauses (v) and (vi) of the definition of mortgage dealer;
(g) any person, or class of persons, exempted under the regulations.
A person may receive money for investment in mortgages without being registered as a mortgage dealer if the transaction constitutes a trade in a security under The Securities Act and either
(a) he or she is registered under that Act to trade in that security; or
(b) he or she is exempted from registration under that Act in respect of that trade otherwise than by virtue of clause 19(2) (4) of that Act.
Subject to the regulations, a solicitor who is a member of the Law Society of Manitoba entitled to practise as a solicitor in the province may, without being registered as a mortgage dealer, engage in those activities falling within the definition of a mortgage dealer where acting in a professional capacity as a solicitor on behalf of a client, if the solicitor does not otherwise engage or hold himself or herself out as being engaged in the business of acting as a mortgage dealer.
An exemption from registration created by the regulations may be limited so as to permit the persons or classes of persons exempted to engage, without registration, only in those types of transactions which are specified in the regulations.
Notwithstanding subsections (1), (2) and (3) the commission may, where in its opinion such action is in the public interest, order that subsection (1), (2) or (3) does not apply to a person named in the order.
The commission shall not make an order under subsection (5)
without a hearing, unless, in its opinion, the length of time required for a hearing would be prejudicial to the public interest, in which event it may make a temporary order which expires not more than 30 days after the date of the making thereof.
The commission shall give notice of each temporary order made under subsection (6) forthwith together with a notice of hearing to every person that, in the absolute discretion of the commission, is substantially affected thereby.
The registrar shall grant registration, renewal of registration, reinstatement of registration or amendment to registration to an applicant where in the opinion of the registrar the applicant is suitable for registration and the proposed registration, renewal, reinstatement or amendment to registration is not objectionable.
The registrar has discretion to restrict a registration by imposing terms and conditions thereon and, without limiting the generality of the foregoing, may restrict the duration of a registration and may restrict the registration to certain classes of transactions.
The registrar shall not refuse to grant, renew, reinstate or amend a registration or impose terms and conditions thereon without giving the applicant an opportunity to be heard.
Section 28 of The Securities Act applies to this Act and to the registrar and for that purpose each reference in that section to the director shall be construed as a reference to the registrar.
A business name which is required to be registered under The Business Names Registration Act and which is not so registered is objectionable for the purposes of subsection (1).
The commission may, after a hearing, suspend, cancel, restrict or impose terms and conditions upon the registration or reprimand the registrant where in its opinion such action is in the public interest.
Where the delay necessary for a hearing under subsection (1) would, in the opinion of the commission, be prejudicial to the public interest, the commission may suspend the registration without a hearing, in which case it shall forthwith notify the registrant of the suspension and of a hearing and review to be held before the commission within 30 days of the date of the suspension, which hearing and review shall be deemed to be a hearing and review under section 28 of The Securities Act.
Notwithstanding subsection (1), the commission may, upon an application by a registrant, accept, subject to such terms and conditions as it may impose, the voluntary surrender of the registration of the registrant where it is satisfied the financial obligations of the registrant to its clients have been discharged and the surrender of the registration would not be prejudicial to the public interest.
A further application for registration may be made upon new or other material or where it is clear that material circumstances have changed.
A registration that is suspended continues to exist but, while it is suspended, it is inoperative and confers no rights or privileges and, for all purposes connected with any transactions related to mortgages, or with any other activity mentioned in the definitions of "mortgage dealer" and "salesperson" in section 1, a registrant whose registration is suspended shall be deemed not to be registered.
Where the registrar or the commission grants registration, renewal of registration or reinstatement of registration under this Act to mortgage dealers and salespersons, the registrar shall enter in the appropriate place in the register the applicant's name and address for service in Manitoba; and shall sign and issue a certificate of registration to the applicant.
A corporation which is registered, or applying for registration, as a mortgage dealer shall appoint at least one of its officials to be recorded in the register and named in the certificate of registration as its authorized official, and any person so recorded and named may engage in mortgage transactions on its behalf without being separately registered under this Act; and all other persons who engage on its behalf in any of the activities described in the definition of "salesperson" set out in section 1 shall be registered as mortgage salespersons.
The registrar may suspend the registration of any corporation registered as a mortgage dealer that does not have at least one authorized official in charge of its mortgage business in Manitoba.
Every suspension or cancellation of a registration under this Act shall be immediately recorded in the register by the registrar together with a notation of the date upon which it became effective.
Whenever the registration of any mortgage dealer is suspended or cancelled, the registration of every salesperson in the mortgage dealer's employ is automatically suspended and shall remain suspended until either
(a) the employer again becomes registered or reinstated; or
(b) the registration is transferred to a new employer.
Where the commission suspends or cancels a registration, it may by the same order provide that the suspension or cancellation shall be effective on the date of the order or on any day after that date, but, if no date of effect of the suspension or cancellation is specified in the order, the suspension or cancellation takes effect on the date the registrar records it in the register.
Upon the termination of the suspension of a registration, the registrant, or, in the case of a salesperson, the mortgage dealer with whom he or she is registered, shall apply in writing to the registrar for reinstatement of the registration and pay the prescribed fee for reinstatement and the suspension remains in force until such application has been made and the fee paid.
The register is open to inspection by any person without charge at all reasonable times during normal office hours.
An application for registration shall be made in writing upon a form supplied by the registrar and shall be accompanied by the prescribed fee.
Every applicant shall state in the application an address for service in the province and, except as otherwise provided in this Act, all notices under this Act or the regulations are sufficiently served for all purposes if delivered or sent by prepaid mail to the latest address for service so stated.
The registrar may require
(a) further information or material to be submitted by an applicant or a registrant within a specified time;
(b) verification by affidavit or otherwise of any information or material then or previously submitted; or
(c) the applicant or registrant, or any partner, officer, director or employee of the applicant or of the registrant, to submit to examination under oath by the registrar or by a person designated by the registrar.
No registration shall be granted to a person as a mortgage dealer unless
(a) the applicant has filed with the registrar the required surety bond;
(b) the registrar is satisfied that the applicant complies with the prescribed minimum capital requirements;
(c) the applicant, if a corporation, has at least one authorized official resident in Manitoba;
(d) the applicant or its authorized officials, if any, have taken and passed the course of instruction prescribed by the commission.
The name under which a registered mortgage dealer is to carry on business is part of the registration and shall be set out in the certificate of registration, and the mortgage dealer shall carry on business under that name and no other.
Subject to subsection (2), no registration shall be granted to a person as a mortgage dealer unless that person has filed with the registrar a surety bond of indefinite duration in the amount and form prescribed by the regulations.
The commission may by order
(a) increase the required amount of any surety bond to be filed and maintained by a mortgage dealer or specified class or classes of mortgage dealers;
(b) require an applicant for registration as a mortgage dealer, or a registered mortgage dealer of a specified class or classes of registered mortgage dealers to carry, for the duration of the period of registration, professional liability insurance, fidelity bonding for employees or such other insurance or bonding as the commission prescribes.
Where a mortgage dealer registered under this Act is a partnership and any change occurs in the membership thereof, the mortgage dealer shall forthwith file with the registrar a new surety bond incorporating the change and the registrar may suspend the mortgage dealer's registration until the new bond has been filed.
When a surety bond filed by a mortgage dealer under this Act has been cancelled, the registration of the mortgage dealer is automatically suspended, and remains so suspended and shall not be reinstated until the mortgage dealer has filed with the registrar a new surety bond as required under this Act.
If, at the time a registration expires,
(a) the registrar has received notice of intention to cancel the surety bond filed by the mortgage dealer; or
(b) the registrar has determined that the surety bond previously filed by the mortgage dealer does not comply with the surety bonding requirements under this Act, the registrar may refuse to renew the registration of the mortgage dealer until a new suretv bond has been filed, complying with this Act.
Where an assurance or bonding company issuing a bond to an applicant or registered mortgage dealer takes any collateral guarantee in support of the bond, the assurance or bonding company, unless otherwise directed by the commission, shall disclose to the commission the details of the guarantee.
A bond required by this section may be cancelled by any person bound thereby by giving to the registrar notice in writing of intention to cancel and, subject to subsection (8), it shall be deemed to be cancelled on the date of cancellation stated in the notice, which date shall be not less than 3 calendar months after the receipt of the notice by the registrar.
For the purpose of every act and omission occurring during the period prior to cancellation under subsection (7), a bond continues in force for a period of 2 years after the cancellation of the bond.
Subject to subsection (2), every registered mortgage dealer shall maintain the minimum capital prescribed by the regulations.
The commission may by order, where it is satisfied that it would be in the public interest to do so, increase the minimum capital required to be maintained by a registered mortgage dealer.
The commission may, at any time, require a registrant or an applicant for registration or renewal of registration, as a mortgage dealer or mortgage salesperson or an authorized official of a registrant or applicant, to take a course prescribed by the commission and pass a written examination set by the commission or the registrar or by any other person selected by the commission for the purpose, in such subjects as the commission may decide.
The examination that a mortgage dealer or authorized official may be required to take and pass may differ from the examination that a mortgage salesperson may be required to take and pass.
Where the registrant or applicant for registration is a corporation, the commission may require the members or officers and directors thereof, to take and pass an examination set under subsection (1).
The commission may exempt certain persons or certain classes of persons from taking and passing the examination required under subsection (1).
No person who is not eligible to be registered as a mortgage dealer shall be recorded in the register or named in a certificate of registration as an authorized official.
Every registered mortgage dealer shall immediately give written notice to the registrar
(a) in the case of a partnership of any change in the membership thereof;
(b) in the case of a corporation of any change in its directors, officers or officials;
(c) of any change in the business name of a registered mortgage dealer;
(d) of any change in the address for service of a registrant or partner or authorized official or salesperson thereof;
(e) of any change in the residential address of the mortgage dealer, if an individual, or of a partner or authorized official of the mortgage dealer, if a partnership or corporation;
(f) of any change in the residential address of a registered mortgage salesperson in the employ of the mortgage dealer;
(g) of the commencement or termination of the appointment of any authorized official, and in the case of termination of appointment, the date of termination and reason therefor; and
(h) of any change in any other material particular disclosed in the last application of the mortgage dealer for registration or renewal thereof filed with the registrar and where the registrar so directs, or this Act so requires, the registrant shall immediately apply to the registrar on forms supplied by the registrar for a change or amendment of registration and where required submit with such application the prescribed fee.
The registration of a partnership as a mortgage dealer shall identify by name all the partners therein, and is a registration only of the partnership so constituted and expires automatically if there is any change in the membership of the partnership, except that when a partner dies or leaves the partnership the surviving or continuing partners may continue the business under the existing registration for a period not exceeding 60 days thereafter.
If the registrar considers that a director, officer, official or joint venturer of a corporation registered as a mortgage dealer is not acceptable as a director, officer, official or joint venturer of a registrant, the registrar shall report the matter to the commission, and if the commission, after a hearing, confirms the registrar's opinion, it may suspend or cancel the corporation's registration pursuant to subsection 5(1).
Except with the prior approval of the registrar, no registered mortgage dealer shall share business premises with another person who is
(a) a registered mortgage dealer;
(b) practising as a barrister or solicitor; or
(c) registered as a broker under The Real Estate Brokers Act;
and the registrar may refuse to grant any registration or amendment which involves such sharing.
When a registered mortgage salesperson ceases to be employed by the mortgage dealer with whom he or she is registered, the mortgage dealer shall immediately notify the registrar in writing and the notice shall state
(a) the date on which the salesperson ceased to be employed; and
(b) the reason for cessation of employment.
Upon receipt of notice in writing from a salesperson that his or her employment with the mortgage dealer with whom he or she is registered has been terminated, the registrar may, if requested by the salesperson, record the cancellation of the registration of the salesperson without waiting for a notice from the mortgage dealer and shall inform the mortgage dealer and the salesperson of the recording of the cancellation; but such cancellation does not excuse the mortgage dealer from giving notice to the registrar in accordance with subsection (1).
Upon the termination of employment mentioned in subsection (1), the registration of the salesperson is automatically suspended and shall remain suspended until the registration is transferred under section 17 to another registered mortgage dealer or until he or she is re-employed by the first mentioned mortgage dealer.
A registered mortgage dealer wishing to employ a salesperson formerly employed by another mortgage dealer and holding a registration which is suspended under section 16 shall apply in writing to the registrar for the transfer of the salesperson's registration, and the registrar, if satisfied that the transfer is not objectionable, shall approve the transfer and record it in the register.
On May 31 in each year every registration under this Act expires but may be renewed for a further year.
An application for renewal of a registration shall be made not less than 30 days before it expires, on forms supplied by the registrar, furnishing such information as the registrar may require in connection therewith.
Every application for the renewal of the registration of a salesperson shall be made by the registered mortgage dealer by whom he or she is employed.
REGULATION OF AUTHORIZED OFFICIALS AND SALESPERSONS
An authorized official of a registered mortgage dealer shall not
(a) carry on business or act as a mortgage dealer; or
(b) act as a mortgage salesperson;
on his or her own account or on behalf of any mortgage dealer other than the registered mortgage dealer in whose certificate of registration he or she is named as an authorized official
A salesperson shall not
(a) carry on business or act as a mortgage dealer; or
(b) act as a mortgage salesperson;
on his or her own behalf or on behalf of any mortgage dealer other than the registered mortgage dealer with whom he or she is registered.
Every salesperson and authorized official of a registered mortgage dealer shall, upon receipt, pay over to the registered mortgage dealer all moneys received in connection with the business of the registered mortgage dealer.
No person who is required to be, and is not, registered as a mortgage dealer, authorized official, or salesperson under this Act shall collect, or attempt or be entitled to collect, commission, compensation, or other remuneration, for any act or expenditure in respect of a transaction which requires such a person to be registered under this Act.
No registered mortgage dealer shall employ as a salesperson a person who is not duly registered or, directly or indirectly, pay to any person a commission, salary or other remuneration in connection with any of the duties mentioned in the definition of "salesperson" unless that person is duly registered as a salesperson in the employ of the mortgage dealer concerned or is an authorized official of that mortgage dealer.
Subsection (1) does not prevent the parties to the mortgage from exercising all the rights, remedies and powers therein provided, and in particular, the right of the lender to recover the sum actually advanced to or for the account of the borrower together with interest thereon at the rate stated in the mortgage or any extension thereof.
Subsection (2) does not apply to the payment of commissions to persons exempted from registration under this Act or to persons duly registered as mortgage dealers under this Act or under an Act of any province of Canada.
REGULATION OF MORTGAGE DEALERS
Except as permitted by this Act or the regulations, a registered mortgage dealer shall not
(a) accept deposits from the "public" in Manitoba, as the word is defined, for the purposes of the Canada Deposit Insurance Corporation Act (Canada);
(b) receive deposits of money repayable upon demand or after notice;
(c) receive money for the purpose of it being invested by the dealer;
(d) receive money in connection with a trade in a security, whether of its own issue or not, unless the trade is made in compliance with the provisions of The Securities Act.
A registered mortgage dealer may receive moneys or deposits from a person or for the account of a person for the purpose of
(a) purchasing for that person an existing mortgage;
(b) selling to that person an existing mortgage;
(c) selling for that person an existing mortgage;
(d) lending the money on mortgage on behalf of that person;
(e) carrying out duties in administering mortgages held in trust by, or deposited with, the registered mortgage dealer;
only if the mortgage dealer receives those moneys or deposits in trust.
Prior to receiving trust moneys as provided in subsection (2) the registered mortgage dealer shall enter into a written agreement with the person depositing or on whose behalf the moneys are to be held, which agreement shall expressly acknowledge the trust and set forth the terms upon which the trust money shall be received and disbursed.
The trust agreement referred to in subsection (3) shall comply with the requirements of this Part and the regulations.
Every registered mortgage dealer receiving moneys in the manner authorized under section 21 shall deposit the moneys in a trust account maintained in a bank and shall keep them separate and apart from moneys that belong to him or her and shall disburse the money only in accordance with the terms upon which it was received.
A registered mortgage dealer who receives money or deposits in trust from a person or for the account of a person as provided in clauses 21(2) (a), (b), (c) or (d) shall immediately open a separate account in the trust ledger for that person and provide that person with the prescribed receipt.
In this section, "bank" means a chartered bank, a trust company, or a credit union as defined in The Credit Unions and Caisses Populaires Act.
Subject to the regulations, a registered mortgage dealer shall not pay money from his or her trust account on account of a mortgage or unconditionally commit another person to advance money on mortgage until he or she has
(a) informed the other person, in writing, of the material particulars of the property provided as security for the mortgage;
(b) informed the other person in writing of the material terms of the mortgage;
(c) provided the other person with a copy of an appraisal report on the property mortgaged or to be mortgaged made by a person independent of the mortgage dealer or, alternatively, a statement of valuation of the property with details as to how and by whom the valuation was made; and
(d) provided the person with a statement of particulars as to the charges to be made by the registered mortgage dealer with respect to the transaction.
Where a registered mortgage dealer
(a) sells an existing mortgage to another person;
(b) purchases an existing mortgage on behalf of another person or arranges for another person to purchase an existing mortgage; or
(c) advances funds or arranges for the advancement of funds on behalf of another person on the security of a mortgage;
the mortgage dealer shall forthwith provide the other person with the information and documents required by this Part and the regulations.
Where a registered mortgage dealer either directly or indirectly arranges for the purchase by another person of a mortgage in circumstances under which section 7 of The Unconscionable Transactions Relief Act could apply, the registered mortgage dealer shall obtain the acknowledgement referred to in section 7 of that Act and forthwith deliver a copy thereof to the person purchasing the mortgage.
Notwithstanding subsection (2), the acknowledgement mentioned in subsection (2) is not required if the registered mortgage dealer agrees in writing to indemnify and does indemnify the purchaser of the mortgage for any loss or expense incurred if the mortgage is attacked under The Unconscionable Transactions Relief Act.
Where a registered mortgage dealer administers a mortgage for another person, they shall enter into a written agreement respecting the administration of the mortgage which shall include terms
(a) requiring prompt remittances to the other person by the mortgage dealer during the term of the mortgage where payments are received on the mortgage;
(b) respecting the fees to which the mortgage dealer is entitled for services provided to the other person and the method of calculating the fees, the manner of collecting the fees and other details concerning the fees;
(c) requiring the mortgage dealer to inform the other person of any change in the status of the mortgage, and the character of the mortgaged property or in the amount or nature of the insurance coverage on the property immediately upon the mortgage dealer becoming aware of the change;
(d) respecting the responsibility of the mortgage dealer to inform himself or herself of the status of the mortgage, the character of the mortgaged property and the amount and nature of insurance coverage on the property and of any change therein; and
(e) requiring the mortgage dealer to provide the other person with an annual statement of payments made by the mortgagor indicating the portion of the payments applied to principal and to interest and the outstanding principal balance at the end of the statement period and the amount of the administration fees charged by the mortgage dealer.
No registered mortgage dealer and no person associated or affiliated with a registered mortgage dealer shall be named as a mortgagee under a mortgage or as the transferee or assignee of a mortgage where any other person
(a) has advanced moneys pursuant to clauses 21(a), (b), (c) and (d) for that mortgage;
(b) has a fractional or other interest in that mortgage; or
(c) is entitled to share in the proceeds of that mortgage;
unless the mortgage dealer has received a written direction from that other person to be so named and the ownership of that other person of the mortgage is evidenced by a duly executed trust agreement.
The trust agreement referred to in subsection (1) shall provide that the registered mortgage dealer holds the mortgage as a bare trustee for the other person and shall comply with the requirements of this Part and the regulations.
The agreements required under sections 21, 25 and 26 may be combined in a single document.
The mortgages given, acquired or held in trust by a registered mortgage dealer pursuant to the provisions of section 26 and mortgages administered by the dealer in accordance with section 25 shall always be kept distinct from those of the dealer, in separate accounts, and so marked for each particular trust as always to be distinguished from any other in the books of account of the dealer, so that at no time shall the trust mortgages, or lands subject to the trust mortgage, or trust moneys received on account of the trust mortgages, form part of or be mixed with the general assets of the dealer, and the dealer shall in the administration of the trust mortgages, keep distinct records and accounts for all transactions connected with each trust mortgage.
The commission may require a registered mortgage dealer to keep all documents material to mortgages given, acquired or held in trust with an independent depository acceptable to the commission.
Every registered mortgage dealer shall
(a) annually, within 4 months after the end of the dealer's financial year; or
(b) at such other times and for the financial period the commission may require;
furnish to the registrar a report in prescribed form, of an auditor satisfactory to the commission, as to the compliance by the registered mortgage dealer with the provisions of the Act and the regulations relating to trust agreements, trust moneys and accounts, trust assets and trust records.
An auditor's report referred to in subsection (1) shall be made on behalf of the trust beneficiaries and when filed with the registrar, shall be deemed to have been made to the trust beneficiaries of the registered mortgage dealer.
The trust compliance report filed with the registrar under subsection (1) shall be open to public inspection at the offices of the commission during normal business hours of the commission.
The failure by a registered mortage dealer to comply with subsection (1) is
(a) a ground for suspension or cancellation of the registration by the commission under subsection 5(1); and
(b) a ground on which the registrar may refuse to renew the registration.
Every registered mortgage dealer shall keep such books and records as are necessary for the proper recording of his or her business transactions and financial affairs and shall deliver to the registrar annually and at such other time or times as the commission may require a financial statement satisfactory to the commission as to his or her financial position, certified by the registered mortgage dealer, or an officer or partner thereof, and reported upon by an auditor satisfactory to the commission and shall deliver to the commission such other information as the commission may require in such form as it may prescribe.
Every registered mortgage dealer shall preserve every record and every page of a book required to be kept under subsection (1) for not less than 7 years after the date of the transaction to which the record or the entries on the page relate.
The registrar, or any person named by the commission for the purpose, may at any reasonable time examine the books, records, vouchers, cash, documents, and the bank accounts, including trust accounts, of any registered mortgage dealer and any bank records relating thereto and shall be granted free access to them.
Any person who withholds, conceals, falsifies, defaces or refuses to produce any book, record, bank account or other thing mentioned in subsection (1) is guilty of an offence.
INVESTIGATION AND ACTION
Where it appears probable to the commission that
(a) a fraud or any offence against this Act or the regulations has been, is being, or is about to be, committed; or
(b) that any person subject to the provisions of this Act has committed an offence under the Criminal Code (Canada) in connection with a mortgage transaction the commission may, by order, appoint any person to make such investigation as it deems expedient for the due administration of this Act, and in the order shall determine and prescribe the scope of the investigation.
No person, without the consent of the commission, shall disclose, except to his or her counsel, any information or evidence obtained or the name of any witness examined or sought to be examined in an investigation under section 32.
Notwithstanding subsection (1),
(a) a person making an investigation may make, or authorize the making of, such disclosure of information, evidence or names of witnesses as may be required for the effectual conduct of the investigation; and
(b) the person who took down or recorded the evidence of a witness may, at the request of the witness and at his or her expense, provide the witness with a transcript of all or part of his or her evidence at any time after his or her examination has been completed; and
(c) nothing in this section prohibits the disclosure or publication of evidence which has been given at a hearing which is open to the public.
(a) the commission is about to order an investigation in respect of a person under section 32 or during or after the investigation; or
(b) the commission is about to make or has made a decision suspending or cancelling the registration of any person; or
(c) proceedings have been instituted against a person in respect of an offence under the Criminal Code (Canada), this Act, The Securities Act or The Real Estate Brokers Act which in the opinion of the commission arises out of or is connected with the carrying on of the business of a mortgage dealer by the person; or
(d) a registered mortgage dealer fails or neglects to comply with the minimum capital requirements for mortgage dealers; or
(e) the registration of any mortgage dealer is suspended, cancelled or expires by operation of any provision of this Act or the regulations;
the commission may apply to a judge of the Court of Queen's Bench for the appointment of a receiver, receiver and manager, trustee or liquidator of the property of the person or the mortgage dealer.
Upon an application under subsection (1), the judge may, if satisfied that it is in the best interests of the creditors of the person or in the best interests of persons any of whose property is in the possession or under the control of the person, appoint a receiver, receiver and manager, trustee or liquidator of all or any part of the property of the person.
Upon an ex parte application made by the commission under this section, the judge may make an order under subsection (2) for a period not exceeding 15 days.
A receiver, receiver and manager, trustee or liquidator of the property of any person appointed under this section shall be the receiver, receiver and manager, trustee or liquidator of all or any part of the property belonging to the person or held by the person on behalf of or in trust for any other person, and has authority, if so directed by the judge, to wind up or manage the business and affairs of the person and all powers necessary or incidental thereto.
An order made under this section may be enforced in the same manner as any order or judgment of the Court of Queen's Bench and may be varied or discharged upon an application made on notice.
Applications under this section shall be made by originating notice of motion and the rules of practice of the Court of Queen's Bench apply thereto.
(a) criminal proceedings in connection with, or arising out of, any transaction in mortgages, or proceedings in respect of an offence against this Act or the regulations, are about to be, or have been instituted against any person; or
(b) it appears to the commission at the time
(i) it is about to order an investigation in respect of a person under section 32 or during or after the investigation; or
(ii) it is about to hold a hearing permitted or required by this Act or during or after the hearing, that a person has committed, is committing or is about to commit fraud or an offence against this Act or the regulations; or
(c) the registration of a registered mortgage dealer expires, is cancelled or is suspended;
the commission may, in writing or by telegram, direct any bank, trust or loan company, credit union or other person, having in Manitoba on deposit, or under control, or in safekeeping any funds or securities of, or moneys owing to, that person to hold those funds, securities or moneys until the commission in writing revokes the direction or consents to the release of any particular fund, security or sum from the direction; and failure without reasonable excuse, to comply with the direction constitutes an offence.
Where a direction has been given under subsection (1) with respect to an account of any person
(a) while the direction remains in force, no withdrawal shall be made from the account without the written consent of the registrar or of some other person named for the purpose by the commission in the direction; and
(b) the direction remains in force until either
(i) the registration of that person as a mortgage dealer has been renewed or reinstated and the registrar has notified the bank in writing that the direction is thereby terminated, or
(ii) the commission revokes the direction.
Unless a direction given under subsection (1) expressly so states, it does not apply to funds or securities in a stock exchange, clearing house or to securities in process of transfer by a transfer agent, and in the case of a bank, the direction shall apply only to the offices, branches or agencies thereof named in the direction.
Any person affected by a direction given under subsection (1), whether named therein or not, if in doubt as to the application of the direction in respect of any funds, securities or moneys, or in the case of a claim being made against the funds, securities or moneys, may apply to the Court of Queen's Bench, which may direct the disposition of the funds, securities or moneys and may make such order as to costs as may seem just.
The commission may revoke a direction under subsection (1) at any time and shall do so when it is satisfied that the balance remaining in the account is no longer subject to any trust and that there are no remaining uncompleted trades or transactions which will require trust money to be deposited in it.
In this section "bank" means a chartered bank, a trust company, or a credit union as defined in The Credit Unions and Caisses Populaires Act.
In any of the circumstances mentioned in subsection (1), the commission may make and file in the land titles office of any land titles district in which is situated land belonging to a person referred to in clause (1)(a), (b) or (c), a certificate stating that proceedings which might affect the land belonging to the person referred to in the certificate, are being or are about to be taken.
A certificate filed under subsection (7)
(a) binds the interest of the person referred to therein (other than an interest as mortgagee) in all lands which are not exempt from proceedings under a certificate of judgment situate in the land titles district in the land titles office of which the certificate has been filed (whether or not the lands are under The Real Property Act) in the same manner as a certificate of attachment registered pursuant to the Queen's Bench Rules;
(b) may be revoked or modified by the commission at any time; and
(c) unless it is sooner revoked, expires after 2 years from the date of filing.
Upon the application of any person affected, the Court of Queen's Bench may set aside a direction given under subsection (1) or order that a certificate filed under subsection (7) be vacated
(a) in a case referred to in clause (1) (a), if no proceedings have been instituted either before or within a reasonable time after the giving of the direction or the filing of the certificate, or if the proceedings instituted have been dismissed or discontinued; or
(b) in a case referred to in clause (1)(b), if the Court or judge is satisfied that the circumstances described therein did not in fact exist either when the direction was given or the certificate filed, or at any subsequent time.
The commission may order a registrant whose conduct is the subject of a hearing, to pay the whole or part of the costs of the hearing and the whole or part of the costs of an investigation under the Act into the registrant's conduct if
(a) the registrant was convicted as the result of the information obtained in the investigation, of an offence created by this Act or of an offence under the Criminal Code (Canada) in connection with a transaction in mortgages;
(b) the registrant's registration is suspended or cancelled; or
(c) the commission is satisfied that the registrant has not adequately discharged his or her responsibilities to the commission, his or her customers or the public.
Any costs ordered to be paid by a registrant under this section are recoverable by the commission as a debt in any court of competent jurisdiction, and the commission may suspend the registrant's registration, or the registration of the corporation of which he or she is an authorized official, until the costs are paid.
The costs referred to in subsection (1) shall be calculated on the basis of the fees prescribed under The Securities Act.
Where the commission finds during the course of any proceeding or investigation authorized, permitted or required by this Act that any fraud or any offence against this Act or the regulations, has been, is being, or is about to be, committed, it may,
(a) give public notice of the fraud or offence; or
(b) give specific notice of the fraud or offence to any person.
Any bond filed with the registrar under section 12 is forfeited and the sum named therein shall become due and owing by every person bound thereby as a debt to Her Majesty in Right of Manitoba if there has been filed with the registrar an order of the commission that a person in respect of whose conduct the bond is conditioned, or any authorized official, employee or mortgage salesperson of such person, in connection with any transaction, negotiation or act related to the business of a mortgage dealer, has been
(a) found upon a hearing by the commission to have committed fraud; or
(b) convicted of an offence under the Criminal Code (Canada), under this Act or the regulations, under The Securities Act or the regulations made thereunder or under The Real Estate Brokers Act or the regulations made thereunder; or
(c) a party to civil proceedings in a court as a result of which final judgment, based upon a finding of fraud, has been given against the person, authorized official, employee or mortgage salesperson.
A bond filed with the registrar under section 12 is forfeited, and the sum named therein is due and owing by every person bound thereby as a debt to Her Majesty in right of Manitoba if there has been filed with the registrar an order of the commission that a person in respect of whose conduct the bond is conditioned is a bankrupt as defined in the Bankruptcy Act (Canada) or has made a proposal under that Act or, in the case of a corporation, that a winding-up order has been made against it.
The commission may, by order, assign the proceeds of any bond forfeited under subsection (1) or (2) or may pay over the moneys recovered thereunder to any person, or into the Court of Queen's Bench in trust for such persons as may become judgment creditors of the person bonded, or to any trustee, custodian, interim receiver, receiver, or liquidator, of the person bonded; and the assignment or payment over shall be in accordance with, and upon conditions set forth in, the regulations, or in any order of the Lieutenant Governor in Council.
Where the commission holds a hearing pursuant to clause (1)(a) it may accept as evidence and act upon the report of a person appointed to make an investigation under section 32.
OFFENCES AND PENALTIES
No person registered under this Act shall, directly or indirectly, hold himself or herself out as being so registered, or exhibit to the public any letter or receipt received from the registrar or any copy thereof, or in any way advertise the registration, save to produce on request evidence of registration under this Act.
No person registered under this Act shall make any false, misleading or deceptive statement in any advertisement, circular, pamphlet or other similar material.
Where, in the opinion of the commission, a person does any of the things mentioned in subsection (1), it may, in addition to the penalties prescribed in this Act, order a cessation of the use of the material mentioned in subsection (1).
Where any sum has been collected by any person in contravention of this Act the person from whom it was collected may recover, in any court of competent jurisdiction, the sum collected from the person who collected.
Any person who, in any application, information, material or evidence submitted or given under this Act or the regulations to the commission, its representatives, the registrar or any person appointed under this Act to make an inquiry, makes a false statement which is not punishable under the Criminal Code (Canada) is guilty of an offence.
In this section "false statement" means a statement which, at the time, and in the light of the circumstances under which it was made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statement false or misleading.
Every registrant who, in connection with a transaction respecting a mortgage, commits fraud not punishable under the Criminal Code (Canada) is guilty of an offence.
Any person who violates any provision of this Act or of the regulations or who fails to observe or comply with any order or direction of the commission made under this Act or the regulations, is guilty of an offence.
Where a registered mortgage dealer commits fraud
(a) in connection with any moneys received for investment in mortgages; or
(b) in any statement provided to a mortgage investor pursuant to the provisions of this Act or the regulations;
the person from whom the moneys were received, or the mortgage investor, as the case may be,
(c) may rescind any contract entered into as a result of the fraud within 30 days of learning of the fraud and may recover any moneys paid to the registered mortgage dealer as a result of the fraud; and
(d) has a right of action for damages against such registered mortgage dealer;
and where the registered mortgage dealer is a corporation, the person has corresponding rights of action against every officer and director of the registered mortgage dealer who authorized, permitted or acquiesced in the fraud.
The right of rescission and damages conferred by this section is in addition to and without derogation from any other right the purchaser, investor or mortgagee as the case may be, may have at law.
Where a corporation is guilty of an offence created by this Act or the regulations, every director or officer of the corporation who authorized, permitted or acquiesced in the offence is also guilty of the offence.
Every person who is guilty of an offence created by this Act or the regulations is liable, on summary conviction,
(a) for a first offence to a fine of not more than $1,000; or
(b) for any subsequent offence if an individual to a fine of not more than $2,000 or to imprisonment for a term of not more than 6 months and, if a corporation, to a fine of not more than $10,000.
Notwithstanding any other Act of the Legislature, proceedings to prosecute a person for an offence under this Act or the regulations may be commenced at any time within 2 years after the facts upon which the proceedings are based first came to the knowledge of the commission.
No person shall be found to have committed fraud under any provision of this Act, in respect of any misrepresentation or omission to state a material fact where that person proves he or she
(a) believed that there had been no misrepresentation or omission; and
(b) conducted such reasonable investigation as to provide reasonable grounds for that belief.
No action lies or shall be instituted against any person, in respect of any act or omission in connection with the administration or carrying out in good faith of this Act or the regulations.
Where, under this Act or the regulations, any notice or document is required to be served upon any person, the notice or document, shall be conclusively deemed to have been served upon the person if
(a) it is served personally upon the person;
(b) in the case of a person carrying on business in Manitoba, it is left during normal business hours with any adult apparently in charge of the place of business or any adult employed by the person at the place of business;
(c) in the case of an individual, it is left with any adult at the residence of the individual in Manitoba or at the place which is indicated in the registration of the person with the registrar as the residence of the individual;
(d) in the case of an applicant or a registrant, it is sent by registered mail addressed to the latest address of the person known to the registrar.
Where, under this Act or the regulations, any notice or document is required to be sent to any person, the requirement shall be conclusively deemed to have been satisfied if
(a) it is served on the person in accordance with subsection (1); or
(b) it is sent by prepaid mail addressed to the latest address of the person known to the registrar.
A statement setting out any data concerning registration under this Act, certified by the registrar, is admissible in any action, proceeding or prosecution as prima facie proof of the facts stated in the statement without proof of the appointment or signature of the registrar.
Any registration of a person as a mortgage dealer or as a salesperson in the employ of a registered mortgage dealer granted under The Mortgage Brokers and Mortgage Dealers Act, being chapter 26 of the Statutes of Manitoba, 1971, which is in force and subsisting on the coming into force of this Act, continues to be and remains in force and effect until May 31, immediately following the coming into force of this Act, as though the registration had been granted to the mortgage dealer or the mortgage salesperson, under this Act and the registration and the registrant shall be subject to the provisions of this Act as if the registration had been granted under this Act.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith; and every regulation made pursuant to, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations not inconsistent with any other provision of this Act,
(a) respecting the method of registration;
(b) prescribing the fees payable to the commission in connection with the administration of this Act and the regulations including fees for filings, applications, registrations, hearings, audits and investigations;
(c) prescribing the limitations and conditions subject to which a person may be registered;
(d) requiring the keeping of such books and records as may be prescribed in the regulations;
(e) prescribing forms for use by a registered mortgage dealer in the carrying on of the business of a registered mortgage dealer or by persons dealing with registered mortgage dealers;
(f) designating the persons required to use the forms prescribed;
(g) prescribing the information to be contained in the forms prescribed;
(h) prescribing the limitations and conditions under which the prescribed forms are to be used;
(i) exempting persons or classes of persons from the application of section 2 and defining the limits of their exemption;
(j) governing the keeping of accounts and records, the preparation, filing and audit of financial statements of the affairs of registered mortgage dealers;
(k) prescribing the minimum capital to be maintained by registered mortgage dealers or by a class of dealers;
(l) prescribing the amount and form of surety bonds to be filed by an applicant for registration as a mortgage dealer, or a registered mortgage dealer, or by a class of registered mortgage dealers;
(m) for the prevention of fraud in connection with transactions in mortgages;
(n) for the disposition of moneys paid or payable to Her Majesty under a bond that is forfeited under section 38 and that are not assigned or paid by the commission under subsection 38(3);
(o) prescribing the circumstances under which a solicitor shall be deemed to be acting in a professional capacity as a solicitor and the circumstances in which he or she shall be deemed to engage or hold himself or herself out as being engaged in the business of acting as a mortgage dealer;
(p) respecting any matter necessary or advisable to carry out the intent and purpose of this Act;
(q) prescribing the form and content of trust agreements;
(r) prescribing the limitations and conditions under which the prescribed trust agreements are to be used;
(s) prescribing conditions relating to the receipt and disbursement of trust moneys;
(t) prescribing the information to be provided to a person before a registered mortgage dealer pays money from his or her trust account on account of a mortgage or unconditionally commits another person to advance money on mortgage;
(u) prescribing the information and documents the registered mortage dealer is required to provide pursuant to subsection 24(1); and
(v) prescribing the form and content of the report required by subsection 29(1).
Where the commission is of the opinion that it is not prejudicial to the public interest, it may, by order, subject to such terms and conditions as it may impose, exempt any person or corporation from all or any provisions of this Act or the regulations.
This Act may be referred to as chapter M210 in the Continuing Consolidation of the Statutes of Manitoba.
The following Acts and parts of Acts are repealed:
(a) The Mortgage Brokers and Mortgage Dealers Act, being chapter 26 of the Statutes of Manitoba, 1971.
(b) An Act to amend The Mortgage Brokers and Mortgage Dealers Act, being chapter 18 of the Statutes of Manitoba, 1973.
(c) Section 47 of The Statute Law Amendment Act (1974), being chapter 59 of the Statutes of Manitoba, 1974.
(d) An Act to amend The Mortgage Brokers and Mortgage Dealers Act, being chapter 55 of the Statutes of Manitoba, 1976.
(e) An Act to amend The Mortgage Brokers and Mortgage Dealers Act, being chapter 5 of the Statutes of Manitoba, 1978.
Commencement of Act.
This Act comes into force on a day fixed by proclamation.