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S.M. 1985-86, c. 25
An Act to amend The Mortgage Act
(Assented to July 11, 1985)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Subsection 25(8) of The Mortgage Act, being chapter M200 of the Revised Statutes, is repealed.
The Act is amended by adding thereto, at the end thereof, the following section:
Every mortgagee under a mortgage shall, before the mortgagor executes the mortgage or executes any other document obligating the mortgagor to execute the mortgage, furnish the mortgagor, or the agent or solicitor of the mortgagor, with a written statement disclosing, subject to subsection (2),
(a) any disbursement, expenditure, payment or cost whatsoever made or to be made or incurred or to be incurred by the mortgagee in respect of the mortgage and charged or to be charged to or to the account of the mortgagor, and any charge whatsoever made by the mortgagee to or to the account of the mortgagor in respect of the mortgage, that the regulations may require to be disclosed and whether or not the disbursement, expenditure, payment, cost or charge is to be retained by the mortgagee out of the mortgage proceeds, including without limiting the generality of the foregoing any
(i) fee, or
(ii) commission, or
(iii) bonus, or
(iv) insurance premium, or
(v) interest, other than interest to become payable as an installment or part of an installment under the mortgage on a date subsequent to the execution of the mortgage and the advancement of the proceeds thereof, or
(vi) other disbursement, expenditure, payment, cost or charge specified in the regulations;
in respect of the mortgage, charged or to be charged to or to the account of the mortgagor, that the regulations may require to be disclosed and whether or not the amount thereof is to be deducted by the mortgagee from the mortgage proceeds;
(b) the net or actual amount of the money to be advanced or the credit to be extended to the mortgagor under the mortgage, and disclosing whether or not, as determined in accordance with the regulations, that amount is the same as or less than the principal amount to be secured by the mortgage and, where that amount is less than the principal amount to be so secured, disclosing in addition such particulars as the regulations may require to show how that net or actual amount is arrived at;
(c) the rate and the manner of calculation and payment of any interest provided for in the mortgage, and showing such particulars and information relating thereto as the regulations may require;
(d) the terms and manner of repayment of the principal amount secured by the mortgage, and showing such particulars and information relating thereto as the regulations may require; and
(e) such other particulars and information in respect of the mortgage as the regulations may require;
expressed, and where necessary calculated, in such manner as the regulations may require and showing, in such manner as the regulations may require, the method used to perform each calculation.
Where the amount of any disbursement, cost, expenditure, payment or charge required to be disclosed in a statement under subsection (1) in respect of a mortgage is not determinable before the execution of the mortgage or any other document obligating the mortgagor to execute the mortgage, the mortgagee shall estimate the amount and disclose that estimated amount and the statement shall show that it is an estimated amount and shall explain why the actual amount is not determinable, and if the estimate and explanation are reasonable the mortgagee is deemed to have complied with subsection (1) in respect of that disclosure.
This section does not apply
(a) in the case of any mortgage or class of mortgages exempted from the operation thereof by the regulations; or
(b) in the case of any mortgagee who, pursuant to another Act of the Legislature or an Act of the Parliament of Canada or regulations made thereunder, furnishes a written statement in a manner consistent with and containing the information required under subsection (1).
Failure to disclose mortgage expenses.
Where a mortgagee under a mortgage fails to comply with clause (1)(a), either by failing to furnish a statement in accordance with subsection (1) or (3) or by furnishing a statement wherein the information required to be disclosed under clause (1) (a) has been omitted or is inaccurate or incomplete, the mortgagor is not liable for the payment of, and if already paid by the mortgagor or deducted from the mortgage proceeds may subject to subsection (8) recover from the mortgagee, any amount mentioned in clause (1)(a) to the extent of the omission or the inaccuracy or incompleteness, as the case may be.
Failure to disclose net amount of loan or credit.
Where a mortgagee under a mortgage
(a) fails to furnish a statement in accordance with subsection (1) or (3), or furnishes a statement in accordance with subsection (1) or (3) but the information required to be disclosed therein under clause (1)(b) has been omitted or is inaccurate or incomplete; and
(b) the net or actual amount of the money advanced or the credit extended to the mortgagee under the mortgage after the execution thereof is less than the principal amount secured by the mortgage;
the mortgagor may, subject to subsection (8), recover from the mortgagee the difference between that net or actual amount or the inaccurate or incomplete amount, as the case may be, and that principal amount.
Failure to disclose interest terms.
Where a mortgagee under a mortgage fails to comply with clause (1)(c), either by failing to furnish a statement in accordance with subsection (1) or (3) or by furnishing a statement wherein the information required to be disclosed under clause (1) (c) has been omitted or is inaccurate or incomplete, the mortgagor may, at any time within 6 months after the date of execution of the mortgage and notwithstanding anything to the contrary in the mortgage document, pay off the principal balance then outstanding under the mortgage, with interest thereon at the rate specified in the mortgage calculated to the date of payment, without notice or penalty, and is entitled, upon making that payment, to a full discharge of the mortgage.
Failure to disclose repayment terms, etc.
Where a mortgagee under a mortgage fails to comply with clause (1)(d) or (e), either by failing to furnish a statement in accordance with subsection (1) or (3) or by furnishing a statement wherein the information required to be disclosed under clause (1)(d) or (e) has been omitted or is inaccurate or incomplete, the mortgagor may, at any time within 6 months after the date of execution of the mortgage and notwithstanding anything to the contrary in the mortgage document, pay off the principal balance then outstanding under the mortgage, with interest thereon at the rate specified in the mortgage calculated to the date of payment, without notice or penalty, and is entitled, upon making that payment, to a full discharge of the mortgage.
Liability of solicitor or agent of mortgagee.
Where a mortgage is arranged on behalf of a mortgagee by a mortgage dealer acting for the mortgagee, the mortgage dealer and the mortgagee
(a) are jointly responsible for complying with subsection (1); and
(b) are jointly and severally liable for the payment of any amount recoverable by the mortgagor under subsection (4) or (5).
The expression "mortgage", wherever used in this section, includes, for the purposes of this section, the renewal or extension of an existing mortgage and whether or not the renewal or extension is effected by the execution of a document.
For the purpose of carrying out the provisions of this section according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made pursuant to, and in accordance with, the authority granted by this subsection shall have the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders, not inconsistent with any other provision of this section,
(a) specifying disbursements, costs, expenditures, payments and charges that shall be disclosed in a statement under clause (1)(a);
(b) specifying the method required to be used, the factors and other matters required to be taken into account and the calculations required to be made by a mortgagee to determine, for the purposes of a statement under clause (1) (b), whether the net or actual amount of money to be advanced or credit to be extended to a mortgagor under a mortgage is the same as or less than the principal amount secured by the mortgage, and specifying the particulars and the calculations required to be disclosed in order to show how that net or actual amount is arrived at where it is less than the principal amount so secured;
(c) specifying the particulars and information that are required to be shown in a statement under clause (1)(c) relating to a disclosure of interest;
(d) specifying the particulars and information that are required to be shown in a statement under clause (1)(d) relating to a disclosure of the terms and manner of repayment of the principal amount secured by a mortgage;
(e) specifying other particulars and information in respect of a mortgage that are required to be disclosed in a statement under clause (1) (e);
(f) prescribing the manner in which anything required to be disclosed in a statement under this section shall be expressed or calculated, and the manner in which the method used to perform each calculation shall be shown;
(g) specifying mortgages and classes of mortgages that are exempt from the operation of this section.
This Act comes into force on a day fixed by proclamation.