The Mortgage Brokers Act

Transcription

1 1 The Mortgage Brokers Act Repealed by Chapter M-20.1* of The Statutes of Saskatchewan, 2007 (effective October 1, 2010). Formerly Chapter M-21 of the Revised Statutes of Saskatchewan, 1978 (effective February 26, 1979) as amended by the Statutes of Saskatchewan, 1998, c.c-45.2; 2002, c.s-17.2; and 2004, c.65. NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation.

2 2 Table of Contents 1 Short title SHORT TITLE 14 Exemptions EXEMPTIONS INTERPRETATION 2 Interpretation LICENCES 3 Mortgage broker required to be licensed 4 Application for licence 5 Application to show address for service 6 Granting of licence 7 Terms, conditions and restrictions may be prescribed 8 Requirement respecting place of business 9 Expiration of licence 10 Suspension or cancellation of licence 11 Superintendent may require further information 12 Hearing may be requested APPEAL FROM SUPERINTENDENT S DECISION 13 Appeal to Queen s Bench INVESTIGATION AND ACTION BY SUPERINTENDENT 15 Power to investigate 16 Power to demand production of documents, etc. 17 Power to take possession of documents, etc. 18 General powers of person making investigation 19 Power to direct the holding or non-withdrawal of funds or securities OFFENCES AND PENALTIES 20 Violation of Act 21 Consent of Attorney General 22 Limitation of prosecution 23 Evidence of carrying on business MISCELLANEOUS 24 Books to be kept 25 Licence under The Real Estate Brokers Act 26 Certificate prima facie proof 27 Regulations

3 3 CHAPTER M-21 An Act respecting Mortgage Brokers SHORT TITLE Short title 1 This Act may be cited as The Mortgage Brokers Act. INTERPRETATION Interpretation 2(1) In this Act: (a) mortgage means a mortgage of real property or any charge on real property for securing the repayment of money or money s worth; (b) mortgage broker means: (i) a person who carries on the business of lending money on the security of land or any interest in land, whether the money is his own or that of another person; or (ii) a person who carries on the business of dealing in mortgages; but does not include a person acting for or on behalf of a licensed mortgage broker; (c) superintendent means the Superintendent of Insurance for Saskatchewan or the Deputy Superintendent of Insurance for Saskatchewan. (2) Notwithstanding any other provision of this Act or the regulations or of any other Act or law, where, pursuant to The Saskatchewan Financial Services Commission Act, the Saskatchewan Financial Services Commission is assigned the performance of all or any of the responsibilities imposed on the superintendent and the exercise of all or any of the powers given to the superintendent by this Act or the regulations: (a) any reference with respect to those responsibilities or powers in this Act or the regulations to the superintendent is to be interpreted as a reference to the Saskatchewan Financial Services Commission; and (b) this Act and the regulations are to be interpreted subject to the provisions of The Saskatchewan Financial Services Commission Act. 1967, c.76, s.2; R.S.S. 1978,, s.2; 2002, c.s-17.2, s.28.

4 4 LICENCES Mortgage broker required to be licensed 3 Except as may otherwise be provided in this Act, no person shall: (a) carry on business as a mortgage broker; or (b) hold himself out as a mortgage broker; unless he holds a valid and subsisting licence for the purpose issued under this Act. 1967, c.76, s.3; R.S.S. 1978,, s.3. Application for licence 4(1) Every application for a licence shall be made to the superintendent upon a form provided by him and shall be accompanied by the fee prescribed by the regulations. (2) Every applicant or person acting on behalf of an applicant may be required by the superintendent to verify by affidavit or statutory declaration the statements made by him in the application. 1967, c.76, s.4; R.S.S. 1978,, s,4. Application to show address for service 5(1) Every applicant for a licence shall state in the application an address for service in Saskatchewan, and any notice under this Act or the regulations shall for all purposes be sufficiently served if delivered or sent by registered mail to that address or to the address for service stated or shown in a notice given pursuant to subsection (2). (2) Every licensee shall notify the superintendent in writing of any change in his address for service. 1967, c.76, s.5; R.S.S. 1978,, s.5. Granting of licence 6 Where in the opinion of the superintendent an applicant is suitable to be licensed and the proposed licensing is not for any reason objectionable, he may grant the licence; but where the superintendent is for any reason of the opinion that the applicant should not be granted a licence he may refuse to grant the licence. 1967, c.76, s.6; R.S.S. 1978,, s.6. Terms, conditions and restrictions may be prescribed 7(1) The superintendent: (a) may grant a licence; or (b) may, where a licence is already granted, by notice to the licensee make the licence; subject to such terms, conditions and restrictions as he considers necessary. (2) The superintendent may by notice to the licensee add to, remove or alter any terms, conditions and restrictions to which a licence is subject.

5 5 (3) Every licensee shall comply with the terms, conditions and restrictions to which his licence is subject. 1967, c.76, s.7; R.S.S. 1978,, s.7. Requirement respecting place of business 8 The superintendet shall not grant a licence to any person under this Act unless the person has and maintains in the province a place satisfactory to the superintendent from which the person intends to conduct or from which he conducts his business or a portion of his business as a mortgage broker. 1967, c.76, s.8; R.S.S. 1978,, s.8. Expiration of licence 9 Unless previously cancelled, every licence expires at midnight on the thirtieth day of June of each year. 1967, c.76, s.9; R.S.S. 1978,, s.9. Suspension or cancellation of licence 10 The superintendent may suspend or cancel a licence for any reason for which he may refuse to grant the licence or where he is satisfied that the licensee: (a) has violated any provision of this Act or the regulations or has failed to comply with any of the terms, conditions or restrictions to which his licence is subject; (b) has made a material mis-statement in the application for his licence or in any of the information or material submitted by him to the superintendent pursuant to section 11; (c) is guilty of misrepresentation, fraud or dishonesty; (d) has by any false, misleading or deceptive statement or advertisement, representation or promise, or by any dishonest concealment of material facts, induced or attempted to induce any person to borrow money or to be responsible for the repayment thereof or to agree to the terms of any transaction with respect to money lent on the security of a mortgage; (e) has induced or attempted to induce any person to pay or be responsible for the payment of excessive or exhorbitant fees or expenses in connection with a loan on the security of a mortgage; or (f) has demonstrated his incompetency or untrustworthiness to carry on the business of a mortgage broker. 1967, c.76, s.10; R.S.S. 1978,, s.10. Superintendent may require further information 11 The superintendent may at any time require further information or material to be submitted within a specified time by an applicant for a licence or by a licensee and may require verification by affidavit or otherwise of any information or material so submitted or previously submitted. 1967, c.76, s.11; R.S.S. 1978,, s.11.

6 6 Hearing may be requested 12(1) An applicant for a licence or a licensee who is dissatisfied with a decision of the superintendent under this Act may within thirty days after the date of the decision apply in writing to the superintendent for a hearing and thereupon the superintendent shall fix a date for the hearing to be held, unless otherwise agreed, not later than seven days after the date of the receipt of the application for the hearing. (2) The superintendent shall in writing within ten days of the conclusion of the hearing render a decision to the applicant or licensee and he shall in his decision give reasons therefor. (3) The applicant or licensee may in any hearing before the superintendent be represented by counsel. (4) For the purpose of holding a hearing, the superintendent: (a) may require and may take and receive affidavits, statutory declarations and depositions; (b) may examine witnesses upon oath and may administer the oath; (c) has the same power that any court has in civil cases to: (i) summon persons to attend as witnesses and to give evidence; (ii) enforce the attendance of witnesses; and (iii) compel witnesses to produce books, documents and things. 1967, c.76, s.12; R.S.S. 1978,, s.12. APPEAL FROM SUPERINTENDENT S DECISION Appeal to Queen s Bench 13(1) A person who is dissatisfied with a decision of the superintendent under this Act, may, instead of applying under section 12 to the superintendent for a hearing, within thirty days from the date of the decision, appeal to a judge of the Court of Queen s Bench who, upon hearing the appeal, may by order do any one or more of the following things: (a) dismiss the appeal; (b) allow the appeal; (c) allow the appeal subject to terms and conditions; (d) vary the decision appealed against; (e) refer the matter back to the superintendent for further consideration and decision; (f) award costs of the appeal; (g) make such other order as to him seems just. (2) The appeal shall be by notice of motion and a copy thereof shall be served upon the superintendent within the said thirty days and not less than ten days before the day on which the motion is returnable.

7 7 (3) Upon receipt of the copy of the notice of motion the superintendent shall forward to the appropriate local registrar a certified copy of all documents in the possession of the superintendent relating to the decision from which the appeal is being taken. (4) There shall be no further appeal. 1967, c.76, s.14; R.S.S. 1978,, s.13. EXEMPTIONS Exemptions 14(1) The licensing provisions of this Act do not apply to: (a) a chartered bank; (b) a credit union to which The Credit Union Act, 1998 applies; (c) a trust company licensed under The Trust and Loan Companies Licensing Act; (d) an insurer licensed under The Saskatchewan Insurance Act; (e) an issuer licensed under The Investment Contracts Act; (f) a member of the Law Society of Saskatchewan in the course of his practice as a barrister and solicitor; (g) a provincial or federal Crown corporation; (h) any person residing in Saskatchewan and lending money on the security of not more than five mortgages in any calendar year; (i) Saskatchewan Co-operative Credit Society Limited; (j) any person or class of persons exempted by the regulations. (2) Nothing in subsection (1) authorizes any person or corporation to act as agent of a broker who is required to be licensed under this Act, but is not so licensed. 1967, c.76, s.15; R.S.S. 1978,, s.14; 1998, c.c-45.2, s.476. INVESTIGATION AND ACTION BY SUPERINTENDENT Power to investigate 15 The superintendent or any other person authorized in writing by the superintendent may upon complaint of any person interested or, when he deems it necessary, without complaint, investigate and inquire into any matter the investigation of which he deems expedient for the due administration of this Act; and for the purpose of such investigation may inquire into and examine the business affairs of the person in respect of whom the investigation is being made and into any books, papers, documents, correspondence, communications, records, negotiations, transactions, investigations, loans, borrowing and payments to, by, on behalf of or in relation to or connected with that person and into any property, assets or things owned, acquired or alienated in whole or in part by that person or by any person acting on behalf of or as agent for that person and that person shall make prompt and explicit answers to all such inquiries. 1967, c.76, s.16; R.S.S. 1978,, s.15.

8 8 Power to demand production of documents, etc. 16 The person making the investigation may at all reasonable times demand the production of and inspect all or any of the books, papers, documents, correspondence, communications or records mentioned in section 15 and all or any documents relating to any trade in real estate effected by any mortgage broker; and any person who has the custody, possession or control of any such books, papers, documents, correspondence, communications or records shall produce them and permit the inspection thereof by the person making the investigation. 1967, c.76, s.17; R.S.S. 1978,, s.16. Power to take possession of documents, etc. 17(1) The person making the investigation may seize and take possession of any books, papers, documents, correspondence, communications or records of the person whose business affairs are being investigated. (2) If within thirty days after the date of a seizure under subsection (1) no prosecution is instituted against the person whose business affairs are being investigated the things seized shall forthwith be returned to him. 1967, c.76, s.18; R.S.S. 1978,, s.17. General powers of person making investigation 18 In addition to the powers conferred by sections 15, 16 and 17 the person making an investigation and inquiry has, for the purpose of the investigation and inquiry, all the powers conferred upon commissioners by sections 3 and 4 of The Public Inquiries Act. 1967, c.76, s.19; R.S.S. 1978,, s.18. Power to direct the holding or non-withdrawal of funds or securities 19 The superintendent may: (a) where an investigation is being made into the business affairs of any person under this Act; or (b) where criminal proceedings or prosecution in respect of a contravention of this Act are about to be or have been commenced against any person that in the opinion of the superintendent are connected with or arise out of a mortgage transaction; in writing or by telegram direct any person having on deposit or under control or for safe keeping any funds or securities of the person referred to in clause (a) or (b), to hold such funds or securities or direct the person referred to in clause (a) or (b) to refrain from withdrawing any such funds or securities from any other person having any of them on deposit, under control or for safe keeping or to hold such funds or securities of clients or others in his possession or control in trust for any interim receiver, custodian, trustee, receiver or liquidator appointed under the Bankruptcy Act (Canada), The Queen s Bench Act, 1998, The Companies Act or the Winding-up Act (Canada), or until the superintendent in writing revokes such direction or consents to release any particular fund or security from such direction; provided that in the case of a bank, loan or trust company the direction only applies to the offices, branches or agencies thereof named in the direction. 1967, c.76, s.20; R.S.S. 1978,, s.19; 2004, c.65, s.18.

9 9 OFFENCES AND PENALTIES Violation of Act 20(1) Subject to subsection (2), a person who: (a) acts, or offers to act, as an agent for a person who is required to be licensed, but is not licensed, under this Act; or (b) carries on business as a mortgage broker otherwise than in the name as set forth in his licence; or (c) violates any provision of this Act or fails to fulfil, perform, observe or carry out any duty or obligation imposed upon him by this Act; is guilty of an offence and is liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than one year or to both. (2) Where a corporation is convicted of an offence under subsection (1), the maximum penalty that may be imposed is $5, , c.76, s.21; R.S.S. 1978,, s.20. Consent of Attorney General 21 No prosecution for an offence under this Act shall be commenced except with the consent of the Attorney General. 1967, c.76, s.22; R.S.S. 1978,, s.21. Limitation of prosecution 22 No prosecution for an offence under this Act shall be commenced after the expiration of one year from the date on which the facts upon which the prosecution is based first came to the knowledge of the superintendent. 1967, c.76, s.23; R.S.S. 1978,, s.22. Evidence of carrying on business 23 Where in a prosecution under this Act it is alleged that the accused carried on the business of a mortgage broker without being the holder of a subsisting licence under this Act, evidence of a single transaction as a mortgage broker is prima facie evidence that the accused carried on such business. 1967, c.76, s.24; R.S.S. 1978,, s.23. MISCELLANEOUS Books to be kept 24 Every mortgage broker shall keep proper books and records relating to his business and shall enter therein in respect of each mortgage transaction: (a) the date and nature of the transaction; (b) a description of the real property involved sufficient to identify it;

10 10 (c) the names of all parties to the transaction; (d) the amount of money received by the mortgage broker and a record of the disbursement, whether the money is his own or that of another person; and (e) the amount of his commission or other remuneration and the name of the party paying it. 1967, c.76, s.25; R.S.S. 1978,, s.24. Licence under The Real Estate Brokers Act 25 A person who is the holder of a subsisting licence as an agent under The Real Estate Brokers Act is deemed to be licensed as a mortgage broker under this Act and is in other respects subject to the provisions of this Act. 1967, c.76, s.26; R.S.S. 1978,, s.25. Certificate prima facie proof 26 A certificate under the hand and seal of office of the superintendent stating that on a specified day: (a) a mortgage broker or any other person named in the certificate was or was not licensed under this Act; or (b) a licence was issued to a mortgage broker; or (c) the licence of a mortgage broker was suspended, cancelled or reinstated; is admissible in evidence as prima facie proof of the facts stated in the certificate. 1967, c.76, s.27; R.S.S. 1978,, s.26. Regulations 27 For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation made under, 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 such regulations, not inconsistent with any other provision of this Act: (a) prescribing the fees payable for licences issued under this Act; (b) prescribing additional requirements respecting applicants for licences; (e) respecting the records to be kept under this Act and the period of time that the records are to be kept; (d) exempting any person or class of persons from this Act or any provision thereof; (e) respecting any other matter necessary or advisable to carry out the intent and purpose of this Act. 1967, c.76, s.28; R.S.S. 1978,, s.27. REGINA, SASKATCHEWAN Printed by the authority of THE QUEEN S PRINTER Copyright 2004