BILL NO. 22
(as passed)
4th Session, 61st General Assembly
Nova Scotia
61 Elizabeth II, 2012
Mortgage Regulation Act
CHAPTER 11 OF THE ACTS OF 2012
The Honourable John MacDonell
Minister of Service Nova Scotia and Municipal Relations
First Reading: April 16, 2012 (LINK TO BILL AS INTRODUCED)
Second Reading: April 30, 2012
Third Reading: May 4, 2012
Royal Assent: May 17, 2012
An Act Respecting the Licensing and Qualifications of,
and Practice Standards for, Mortgage Lenders,
Mortgage Brokerages, Mortgage Brokers, Associate
Mortgage Brokers and Mortgage Administrators
Be it enacted by the Governor and Assembly as follows:
1 This Act may be cited as the Mortgage Regulation Act.
(a) "associate mortgage broker" means an individual who acts as a mortgage broker on behalf of a mortgage brokerage and under the supervision of a designated mortgage broker, as an employee or otherwise;
(b) "borrower" includes a prospective borrower;
(c) "Court" means the Supreme Court of Nova Scotia;
(d) "Deputy Registrar" means an individual appointed by the Minister as Deputy Registrar of Mortgage Regulation under this Act;
(e) "employee" includes an agent and a contract employee;
(f) "financial institution" means a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union to which the Credit Union Act applies, or a corporation registered under the Trust and Loan Companies Act;
(g) "lawyer" has the same meaning as in the Legal Profession Act;
(h) "licence" means a valid licence issued pursuant to this Act;
(i) "licensee" means a person who holds a licence;
(j) "Minister" means the member of the Executive Council charged by Governor in Council with the administration of this Act;
(k) "mortgage" means any charge on real property or on real and personal property for securing money or money's worth;
(l) "mortgage administrator" means a person who, on behalf of an investor, engages in one or more of the following activities:
(ii) monitoring the performance of a borrower with respect to the borrower's obligations under the mortgage,
(iii) indicating, by advertisement, notice or sign, that the person is a mortgage administrator,
(ii) by advertisement, notice or sign, indicates that the person is a mortgage broker, or
(o) "mortgage lender" means a person who
(ii) by advertisement, notice or sign, indicates that the person is a mortgage lender;
(q) "prescribed" means prescribed by the regulations;
(r) "Registrar" means the person appointed by the Minister as Registrar of Mortgage Regulation under this Act;
(s) "trust money" means any money received by a mortgage brokerage or a mortgage administrator, but does not include money that is clearly received as payment to the mortgage brokerage or mortgage administrator for fees or other remuneration earned by the mortgage brokerage or mortgage administrator, as the case may be;
(ii) a mortgage held in the name of a mortgage administrator, but only if another person
(a) the person solicits, provides, promotes, advertises, markets, sells or distributes any products or services by any means that cause communication from the person or the person's agents or representatives to reach a person in the Province;
(b) the person has a resident agent or representative or maintains an office or place of business in the Province;
(c) the person holds himself or herself out as carrying on business in the Province; or
(d) the person otherwise carries on business in the Province.
3 (1) This Act does not apply to a person or class of persons exempted by the regulations.
(2) An exemption from the requirement to be licensed created by the regulations may be limited so as to allow the persons or classes of persons exempted to engage, without being licensed, only in prescribed types of transactions.
4 (1) The Minister shall, in accordance with the Civil Service Act, appoint a person to be the Registrar of Mortgage Regulation.
(2) The Registrar is responsible to the Minister for the administration of this Act and the regulations.
5 (1) The Minister shall, in accordance with the Civil Service Act, appoint a person to be a Deputy Registrar of Mortgage Regulation.
(2) The Minister may, in accordance with the Civil Service Act, appoint such additional Deputy Registrars as may be required to assist the Registrar in the performance of the Registrar's duties.
(3) A Deputy Registrar appointed under subsection (1) or (2) may perform any of the duties and exercise any of the powers of the Registrar as directed by the Registrar and shall perform such other duties as directed by the Minister.
6 With the permission of the Minister, the Registrar may engage accountants, actuaries and other professionally or technically qualified persons to assist the Registrar in the administration and enforcement of this Act and the regulations.
7 (1) The Registrar shall create and maintain a public register or registers of mortgage lenders, mortgage brokerages, mortgage brokers, associate mortgage brokers and mortgage administrators.
(2) The register or registers referred to in subsection (1) must contain the prescribed information.
(3) Unless restricted by the regulations, a person may examine or make a copy of the contents of any register referred to in subsection (1).
8 (1) For the purpose of this Section, "prepayment" means the prepayment in full or in part of the outstanding indebtedness secured by the mortgage before the completion of the term.
(2) Every mortgage entered into or renewed on or after June 30, 1985, must state whether the mortgage may be prepaid in full or in part and, where the mortgage may be prepaid, the mortgage must state the terms of prepayment.
(3) Where a mortgage is silent with respect to prepayment, it may be prepaid without penalty at any time.
9 Notwithstanding any stipulation to the contrary, where a mortgagor is entitled to redeem the mortgage or where the mortgagee demands payment of the mortgage by the mortgagor, the mortgagor, upon payment of any balance outstanding in respect of the mortgage, may require the mortgagee, instead of giving a release of mortgage, to assign the mortgage to such third person as the mortgagor directs, and the mortgagee is bound to assign the mortgage accordingly.
10 Failure to comply with the provisions of this Act does not affect the validity of a charge on real property secured by a mortgage.
11 Every mortgage is subject to the prescribed terms and conditions.
(d) associate mortgage broker;
(2) Every mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker and mortgage administrator carrying on business in the Province must hold a valid licence under this Act unless exempted from the requirement to have such a licence.
13 Only an individual is eligible to apply for a mortgage broker licence or associate mortgage broker licence.
14 (1) An application for a licence to carry on business in the Province under this Act as a mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker or mortgage administrator must be made to the Registrar, in the form provided by the Registrar.
(2) Upon receipt of an application for a licence or the renewal of a licence and upon payment of the prescribed fee, the Registrar shall issue a licence to the applicant or renew the applicant's licence if the Registrar is satisfied that the applicant satisfies all the requirements of this Act and the regulations respecting licensing.
(3) Where the Registrar is not satisfied that an applicant satisfies all the requirements of this Act and the regulations respecting licensing or where the Registrar is of the opinion that it is not in the public interest to issue a license to the applicant or renew the applicant's licence, the Registrar may, subject to Section 24, refuse to issue the licence to the applicant or renew the applicant's licence.
15 (1) A mortgage brokerage licence authorizes the licensee to engage or employ mortgage brokers.
(2) A mortgage broker licence authorizes the licensee to broker mortgages on behalf of the mortgage brokerage named on the licence.
(3) An associate mortgage broker licence authorizes the licensee to broker mortgages on behalf of the mortgage broker named on the licence while acting under the supervision of a licensed mortgage broker.
(4) A mortgage administrator licence authorizes the licensee to
(a) carry on the business of administering mortgages; and
(b) receive and hold trust property in the course of that business.
(5) A mortgage lender licence authorizes the licensee to carry on the business of lending money on the security of mortgages.
16 (1) Subject to Section 24, at the time a licence is issued, renewed or reinstated, the Registrar may attach any terms and conditions to the licence that the Registrar considers necessary.
(2) Subject to Section 24, at any time after a licence is issued, renewed or reinstated, the Registrar may do all or any of the following:
(a) amend, modify or vary the terms and conditions attached to the licence;
(b) attached new terms and conditions to the licence;
(c) repeal the terms and conditions and substitute new terms and conditions in their place.
(3) A licensee shall comply with the terms and conditions attached to the licensee's licence.
17 (1) The Registrar may, in accordance with this Act and the regulations, suspend or cancel a licence
(a) on any ground on which the Registrar might have refused to issue the licence pursuant to subsection 14(3);
(b) if a licensee has failed to comply with this Act or the regulations; or
(c) in accordance with Section 18.
(2) Where the Registrar considers it appropriate to do so, and on receipt of any prescribed reinstatement fee, the Registrar may reinstate a licence that has been suspended.
18 (1) A licence issued to a mortgage brokerage is automatically suspended if the mortgage brokerage ceases to have at least one mortgage broker authorized to broker mortgages on its behalf.
(2) A licence issued to a mortgage broker or an associate mortgage broker is automatically suspended if
(a) the mortgage broker or associate mortgage broker ceases to be authorized to act on behalf of the mortgage brokerage named on the licence; or
(b) the mortgage brokerage named on the licence has its licence suspended or cancelled.
(3) In the circumstances referred to in subsections (1) and (2), the Registrar may
(a) reinstate the suspended licence if the prescribed circumstances are met and any prescribed reinstatement fee has been paid; or
(b) cancel the licence if it has not been reinstated within the prescribed period.
19 A licence issued or reinstated pursuant to this Act is not transferable or assignable.
20 (1) At any time, the Registrar may
(a) require an applicant or a licensee to submit to the Registrar such further information or material as the Registrar considers reasonably necessary; and
(b) require verification, by affidavit or otherwise, of any information or material submitted to the Registrar pursuant to clause (a).
(2) An applicant or licensee who receives a request from the Registrar pursuant to subsection (1) shall comply with that request within the period specified by the Registrar.
21 A licensee shall immediately notify the Registrar in writing of any change to a business address, facsimile number or electronic address provided in an application pursuant to Section 14.
22 An applicant or licensee shall, within the prescribed period, notify the Registrar in writing of any change of circumstances.
23 No person shall commence an action or proceeding for a fee, commission or to be otherwise remunerated for services related to mortgage brokering or administering in the Province, unless, at the time the person was providing such services, the person was licensed to do so or was not required to be licensed to do so.
24 (1) In this Section, "action" means
(a) an action that the Registrar may take pursuant to subsection 14(3), Section 16 or clause 17(1)(a) or (b); or
(b) an order that the Registrar may make pursuant to subsection 73(1), 75(2) or 77(1), (2) or (3).
(2) Before taking an action, the Registrar shall give the person who is the subject of the action a written notice
(a) setting out the action proposed to be taken by the Registrar and the grounds that, in the Registrar's opinion, justify the proposed action; and
(b) informing the person of the person's right to make representations to the Registrar respecting why the action should not be taken.
(3) A person to whom a notice is sent pursuant to subsection (2) may, within fifteen days after receiving that notice, advise the Registrar that
(a) the person requests an oral hearing; or
(b) the person wishes to make written representations to the Registrar respecting why the action should not be taken.
(4) A person who requests an oral hearing pursuant to clause (3)(a) shall, within seven days after requesting the hearing, contact the Registrar and arrange a date, time and place for the hearing.
(5) Written representations made pursuant to clause (3)(b) must be received by the Registrar within thirty days after the person receives the notice pursuant to subsection (2).
(6) The Registrar may take the actions stated in the notice without considering any representations of the person if the person fails to
(a) advise the Registrar in accordance with subsection (3);
(b) meet the requirements of subsection (4) or (5) within the required time; or
(c) appear on the date and at the time and place arranged for the hearing without the prior approval of the Registrar.
(7) The Registrar may extend the periods referred to in subsection (3), (4) or (5) if, in the Registrar's opinion, it is appropriate to do so.
(8) Nothing in this Section requires the Registrar to give an oral hearing to any person who has made written representations in accordance with this Section.
(9) Notwithstanding subsection (2), where the Registrar considers it necessary and in the public interest to take immediate action, the Registrar may immediately do any of the things described in Section 16, clauses 17(1)(a) or (b) or subsection 75(2) without giving the person an opportunity to be heard, but the Registrar shall give the person an opportunity to make written representations or attend a hearing before the Registrar within fifteen days after the date on which the Registrar takes the action.
(10) Upon holding a hearing or receiving a person's written representations pursuant to this Section, the Registrar shall, within a reasonable period
(a) consider the submissions and make a decision;
(b) notify the person, in writing, of the Registrar's decision;
(c) provide written reasons for the Registrar's decision; and
(d) provide the person with information respecting the right of appeal pursuant to Section 78.
(2) A compliance officer shall
(a) act as a liaison or contract person with the Registrar at all times; and
(b) ensure that the mortgage lender is acting at all times in compliance with this Act and the regulations.
26 Every mortgage lender shall ensure that every employee and agent authorized to act on the mortgage lender's behalf complies with all applicable requirements established pursuant to this Act.
27 Every mortgage lender shall provide to a borrower, within the prescribed period, the prescribed information in the prescribed manner.
(a) has a mortgage broker licence; and
(b) satisfies any other prescribed criteria,
(a) designate a mortgage broker to act as a supervisor for each associate mortgage broker authorized to act on behalf of the mortgage brokerage;
(b) ensure that no associate mortgage broker brokers mortgages except under the supervision of a mortgage broker designated pursuant to clause (a);
(c) ensure that the mortgage brokerage is acting at all times in compliance with this Section and Sections 29 to 33; and
(d) exercise any other prescribed powers and perform any other prescribed duties.
29 No mortgage brokerage shall
(a) authorize or allow an unlicensed individual, or an individual whose licence is under suspension, to broker mortgages on the mortgage brokerage's behalf; or
(b) authorize or allow a mortgage broker or associate mortgage broker to act on the mortgage brokerage's behalf if the mortgage broker or associate mortgage broker has another mortgage brokerage named on his or her licence.
30 Every mortgage brokerage shall ensure that every mortgage broker and associate mortgage broker authorized to act on the mortgage brokerage's behalf complies with all applicable requirements established pursuant to this Act.
31 Subject to Section 33, every mortgage brokerage shall act in the best interests of the borrower.
32 (1) Every mortgage brokerage required to act in the best interests of a borrower pursuant to Section 31 shall
(a) provide to the borrower, within the prescribed period, the prescribed information, in the prescribed manner;
(b) determine the mortgage loan that is most suitable for the borrower in accordance with the prescribed criteria;
(c) subject to subsection (2), provide to the borrower, in the prescribed manner, a written assessment of the determination made pursuant to clause (b) that contains the prescribed information at least one business day before the earlier of
(ii) the day on which the borrower makes any payment in connection with the mortgage, including, but not limited to, any application fee paid by the borrower in connection with the mortgage; and
(2) The borrower may, having received independent legal advice, waive the requirement that the written assessment required to be provided pursuant to clause (1)(c) be provided at least one business day before the earlier of days referred to in subclauses (1)(c)(i) and (ii).
33 (1) A mortgage brokerage shall act in the best interests of the private investor if the mortgage brokerage
(a) solicits the private investor to make an investment in a mortgage;
(b) negotiates or arranges an investment in a mortgage by the private investor; or
(c) provides advice to the private investor with respect to the appropriateness of making a particular investment in a mortgage.
(2) A mortgage brokerage that is required to act in the best interests of a private investor pursuant to subsection (1) shall ensure that the borrower is represented by another mortgage brokerage.
34 (1) No mortgage broker shall act on behalf of a mortgage brokerage other than the mortgage brokerage named on the mortgage broker's licence.
(2) No associate mortgage broker shall act on behalf of a mortgage brokerage other than the mortgage brokerage named in the associate mortgage broker's licence.
(2) A compliance officer shall
(a) act as a liaison or contract person with the Registrar at all times;
(b) ensure that the mortgage administrator is acting at all times in compliance with this Act and the regulations.
36 Every mortgage administrator shall ensure that every employee and agent authorized to act on the mortgage administrator's behalf complies with all applicable requirements established pursuant to this Act.
37 Every mortgage administrator shall provide to a lender and a borrower, within the prescribed period, the prescribed information in the prescribed manner.
38 No mortgage administrator shall administer a mortgage on behalf of a private investor unless the mortgage administrator has entered into a written agreement with that private investor that
(a) includes the prescribed terms and conditions; and
(b) contains the prescribed information.
39 Every mortgage administrator that administers a mortgage on behalf of a private investor must act in the best interests of the private investor.
40 (1) Before entering into an agreement with a private investor in accordance with Section 38, a mortgage administrator shall provide the private investor with a statement in the prescribed manner disclosing the prescribed information.
(2) Where, at any time, there is a change to any of the information required to be disclosed pursuant to subsection (1), the mortgage administrator shall provide the private investor with an additional statement in accordance with subsection (1) within the prescribed period.
41 Where a mortgage administrator and a private investor enter into an agreement in accordance with Section 38, the mortgage administrator shall provide a copy of the agreement to the private investor within ten days.
MORTGAGE BROKERAGES, MORTGAGE BROKERS,
ASSOCIATE MORTGAGE BROKERS
AND MORTGAGE ADMINISTRATORS
42 (1) In this Section, "record" means a writing, or any information in a form that can be converted into a writing, by a machine or a device, and includes information
respecting the finances or business of a mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker or mortgage administrator.(2) Every mortgage lender, mortgage brokerage and mortgage administrator shall ensure that the following records are kept:
(a) complete and accurate financial records of the licensee's operations in the Province that include the prescribed information;
(b) complete and accurate records respecting all the information to be disclosed and documentation to be provided to borrowers or private investors pursuant to this Act;
(c) complete and accurate records respecting all written agreements that the mortgage brokerage or mortgage administrator has entered into;
(d) in the case of a mortgage administrator, the records required pursuant to Sections 47 and 48;
(e) any other prescribed records.
(3) Every mortgage lender, mortgage brokerage and mortgage administrator shall
(a) retain the records referred to in this Section
(b) make available for inspection by the Registrar the records referred to in this Section during regular business hours44 No licensee shall directly or indirectly offer any guarantee with respect to an investment in a mortgage.
45 (1) Every licensee shall comply with any other prescribed requirements.
(2) No licensee shall contravene any other prescribed prohibitions.
47 No licensee may receive or hold trust property unless it is licensed to carry on business as a mortgage administrator under this Act.
48 In addition to the requirements set out in Section 42, every mortgage administrator shall
(a) ensure that the records that are kept distinguish between
(ii) money and mortgages received or held in trust by the business;
(c) ensure that any other prescribed records are
49 Unless otherwise authorized in writing by the Registrar, every mortgage administrator shall keep records of all transactions involving trust property received or held on behalf of residents of the Province separate and apart from records of those transactions relating to trust property received or held on behalf of residents of other jurisdictions.50 Every mortgage administrator that receives or holds trust property shall keep all trust property separate and apart from all other money and property belonging to the licensee or its employees.
51 Every mortgage administrator receiving trust money shall
(a) deposit the money into a trust account that is
(ii) held in the name of the licensee as shown on its licence,
(iii) designated as a trust account by the financial institution,
(b) comply with Sections 47 to 50, this Section and Sections 52 to 53 and the regulations made pursuant to those Sections.
52 Where a mortgage administrator receives trust money in the form of periodic payments with respect to a mortgage administered by the mortgage administrator on behalf of a private investor, the mortgage administrator
(a) shall pay that money to the private investor within thirty days after receiving it; and
(b) shall not pay any interest earned on that money to the private investor.
53 (1) No mortgage administrator shall
(a) without the prior approval of the Registrar
(ii) move an existing trust account,
(iii) close a trust account, or
(iv) open or maintain more than one trust account with respect to trust money held on behalf of residents of the Province;
(c) withdraw any money from a trust account except in accordance with the trust agreement relating to that money;
(d) authorize a financial institution to deduct from a trust account any service charge or any other charge; or
(e) pay any personal or general office expense from a trust account.
(2) Every mortgage administrator shall keep trust money held on behalf of residents of the Province separate and apart from any trust money held on behalf of residents of other jurisdictions.
55 In each fiscal year, every mortgage administrator shall provide the Registrar with a financial statement for the preceding fiscal year that
(a) contains and is accompanied by the prescribed information and documentation; and
(b) is delivered to the Registrar within the prescribed period after the end of the fiscal year to which it relates.
56 Every mortgage administrator licensed pursuant to this Act shall, upon request, provide the Registrar with interim financial statements
(a) for the period specified by the Registrar;
(b) containing any information the Registrar considers necessary; and
(c) within the period specified by the Registrar.
57 (1) Subject to subsection (2),
(a) every financial statement prepared for the purpose of this Act or the regulations must be prepared in accordance with generally accepted accounting principles as set out in the CICA Handbook--Accounting, as amended from time to time; and
(b) every auditor who makes an examination and prepares a report for the purpose of this Act or the regulations must conduct the examination and prepare the report in accordance with generally accepted auditing standards as set out in the CICA Handbook--Assurance, as amended from time to time.
(2) Any modification established by the Registrar to the principles, standards or practices referred to in clauses (1)(a) and (b) must be taken into account in the preparation of the documents referred to in clauses (1)(a) and (b).
(2) No mortgage lender, mortgage brokerage or mortgage administrator shall advertise the business or any products or services offered by that business unless the advertisement
(a) shows the name of the business as set out on its licence; and
(b) contains the prescribed information.
(3) No mortgage broker or associate mortgage broker shall advertise any product or service offered by the mortgage broker or associate mortgage broker unless the advertisement
(a) indicates the name of the mortgage brokerage for which the broker or associate mortgage broker is authorized to act; and
(b) contains the prescribed information.
59 (1) No licensee shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material.
(2) Where, in the opinion of the Registrar, a licensee has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material, the Registrar may order that licensee to stop using that material immediately.
(3) No licensee shall fail to comply with an order of the Registrar issued pursuant to subsection (2).
60 (1) Subject to subsection (2), every licensee shall disclose the prescribed information in all correspondence and other written material prepared or used in the course of the business.
(2) Subsection (1) does not apply to an advertisement.
(2) For the purpose of exercising the Registrar's functions under this Act, the Registrar has all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act.
(3) The Registrar may issue a summons if the Registrar considers it necessary in order to determine whether a person is complying with a requirement established pursuant to this Act.
(4) Where a person summoned as a witness pursuant to subsection (3) fails or refuses to attend, answer questions or produce records or property in that person's custody or possession, the person is liable, on application to the Court by the Registrar, to be committed for contempt by the Court in the same manner as if that person were in breach of an order or judgment of the Court.
(5) The Registrar may accept any evidence that is relevant to the inquiry or investigation and is not bound by the rules of law respecting evidence applicable to judicial proceedings.
(6) The Registrar may prescribe the rules, forms and procedures to be followed in proceedings before the Registrar.
62 (1) At any time, the Registrar may direct any person to provide the Registrar with any information or material the Registrar reasonably requires for the purpose of this Act and the regulations.
(2) The Registrar may determine a reasonable period within which a person shall provide the information or materials directed to be provided pursuant to subsection (1).
63 (1) Unless exempted from doing so in the regulations, every licensee and former licensee shall immediately inform the Registrar in writing of any action or proceeding brought in respect of the business or activities that the licensee is, or was, or the former licensee was, authorized to carry on under its licence.
(2) The Registrar is entitled to appear and to be heard, in person or by counsel, in any action or proceeding referred to in subsection (1).
(3) A licensee or former licensee shall provide the Registrar with a copy of any order or judgment of a court with respect to an action or proceeding referred to in subsection (1) as soon as is practicable after the order or judgment is made.
64 Notwithstanding the Freedom of Information and Protection of Privacy Act, the Registrar may authorize the publication of, or make available to the public and to officials in other jurisdictions, the following information:
(a) any information appearing on a licence;
(b) the address of the place of business and mailing address and address for service of a licensee;
(c) the name of the principal broker designated by a mortgage brokerage licensed pursuant to this Act;
(d) any other information referred to in Section 62 if, in the opinion of the Registrar, it is in the public interest to do so;
(e) any decision or order of the Registrar, including the Registrar's written reasons for making the decision or order if, in the Registrar's opinion, it is in the public interest to do so.
(a) conduct studies, inquiries and surveys for the purpose of obtaining information as to what persons are conducting any activities for which persons require licences under this Act, concerning their methods and practices of carrying on business, and to keep informed of developments and changes in those methods and practices;
(b) consult with and co-operate with licensees and other interested persons and organizations to assist in the attainment of the purpose of this Act;
(c) establish ad hoc advisory committees from time to time to inquire into or investigate any matter relating to the administration of this Act or any matter falling within the provisions of this Act or the regulations and to assist or advise the Registrar with respect to any matter referred to a committee by the Registrar;
(d) consult with any other government or regulatory authority for the purpose of administering or enforcing this Act.
(a) "Act" includes the regulations and any orders or directions of the Registrar issued pursuant to this Act;
(b) "property" includes computer software;
(c) "record" has the same meaning as in subsection 61(1).
67 (1) The Registrar may make inquiries and conduct examinations of the business and activities of each licensee to ensure that the licensee is complying with the requirements established pursuant to this Act.
(2) Where, in the Registrar's opinion, a person who is not a licensee is or was required to have a licence, the Registrar may make such inquiries and conduct such examinations of the business and activities of the person as the Registrar considers appropriate in the circumstances.
(3) Subject to Section 2B of the Summary Proceedings Act, the Registrar may do all or any of the following things in the course of making an inquiry or conducting an examination:
(a) enter at any reasonable time and inspect any commercial premises used by a person required to be licensed pursuant to this Act;
(b) enter at any reasonable time premises containing any records or property required to be kept pursuant to this Act or related to the administration of this Act and inspect those records or that property;
(c) require the person and any agent, representative, partner, director, officer or employee of the person to
(ii) provide the Registrar with all reasonable assistance, including using any computer hardware or software or any other data storage, processing or retrieval device or system to produce information;
(e) remove for examination and copy anything that may be relevant to the inquiry or examination, including removing any computer hardware or software or any other data storage, processing or retrieval device or system in order to produce information.
(4) The Registrar may serve a written demand on any person requiring that person to produce any records or property
(a) required to be kept pursuant to this Act; or
(b) related to the administration of this Act.
(5) No person on whom a written demand is served pursuant to this Section shall fail to produce the records or property referred to in the written demand within the period specified in the written demand.
(6) Where the Registrar demands any records or property pursuant to this Section, the Registrar may examine the records or property and make copies of the records with reasonable dispatch and promptly return the originals of the records to the person who produced them.
(7) Where the Registrar requires a person to answer questions, to produce a record or other property or to provide assistance in accordance with this Section, the person shall do so in the manner and within the period specified by the Registrar.
(a) give a receipt for anything that the Registrar removes for examination and copying;
(b) promptly return anything removed pursuant to this Section to the place from which it was removed or any other place agreed to by the Registrar and the person who furnished it; and
(c) take all reasonable steps to ensure that, where a record is taken, a copy of the record is left at the premises to allow business to be carried on.
68 (1) Where the Registrar or any person engaged, appointed or retained by the Registrar for the purpose of assisting the Registrar in carrying out an inspection or investigation is required to travel outside the Province to conduct an inspection or investigation of a person, the Registrar may direct the person being inspected or investigated to pay all of the reasonable costs associated with the inspection or investigation.
(2) No person shall fail to pay an amount that the person is directed to pay pursuant to subsection (1).
69 (1) Every person who contravenes this Act or the regulations or who fails to comply with an order or direction given by the Registrar pursuant to this Act is guilty of an offence.
(2) Every person who makes a false or misleading statement in any application or in any proceeding or in response to any inspection or investigation pursuant to this Act is guilty of an offence.
(3) Every person who is guilty of an offence is liable on summary conviction
(a) in the case of an individual, to a fine of not more than five hundred thousand dollars or to imprisonment for a term of not more than one year, or to both a fine and imprisonment; or
(b) in the case of a corporation, to a fine of not more than one million dollars.
(4) Where a corporation contravenes this Act or the regulations, a director or officer of the corporation who authorized, allowed or acquiesced in the contravention is also guilty of an offence and liable on summary conviction to the penalties set out in subsection (3), regardless of whether the corporation has been prosecuted or convicted.
70 Where a court convicts a person of an offence, the court may, in addition to any penalty it may impose, do all or any of the following:
(a) order that person to comply with the provision of this Act with respect to which that person was convicted;
(b) where the court is satisfied that the convicted person has acquired any monetary benefits or that monetary benefits have accrued to the convicted person or to another person associated with or related to the convicted person,
(ii) order the convicted person to pay compensation or make restitution to any person to whom the monetary benefits should be paid.
(2) No person shall hinder or interfere with the Registrar, or any employee, appointee or agent of the Registrar, in the performance of the Registrar's powers, functions and duties pursuant to this Act.
(3) A person contravenes subsection (1) if the person knows or ought reasonably to know that an inspection, investigation or proceeding is to be conducted and takes any action referred to in subsection (1) before the inspection, investigation or proceeding.
72 (1) A prosecution for a contravention of this Act must not be commenced more than two years after the date on which the alleged contravention occurred.
(2) Where the Registrar imposes an administrative penalty on a person, a prosecution for an offence under this Act for the same contravention must not be brought against the person.
73 (1) Subject to subsection (4) and Sections 24 and 74, where the Registrar is satisfied that a person has contravened a provision of this Act, the Registrar may make an order imposing all or any of the following penalties:
(a) in the case of an individual, an administrative penalty of not more than five thousand dollars;
(b) in the case of a corporation, an administrative penalty of not more than fifty thousand dollars;
(c) a private or public reprimand;
(d) a penalty obliging the person to pay the cost of producing material specified by the Registrar to promote education or knowledge in areas related to activities of mortgage lenders, mortgage brokerages, mortgage brokers, associate mortgage brokers or mortgage administrators, provided that the total penalty for the same contravention will not exceed the maximum amount specified in clause (a) or (b), as applicable.
(2) Before the Registrar imposes an administrative penalty on a person, the Registrar shall consider the following:
(a) previous enforcement actions for contraventions of a similar nature by the person;
(b) the gravity and magnitude of the contravention;
(c) the extent of the harm to others resulting from the contravention;
(d) whether the contravention was repeated or continuous;
(e) whether the contravention was deliberate;
(f) any economic benefit derived by the person from the contravention;
(g) the person's efforts to correct the contravention.
(4) The written notice required to be provided to the person pursuant to subsection 24(2) must, in addition to the requirements set out in that subsection,
(a) set out the facts and circumstances that, in the Registrar's opinion, render the person liable to a penalty; and
(b) specify the amount of the penalty that the Registrar considers appropriate in the circumstances.
(5) Upon holding a hearing or receiving a person's written representations pursuant to Section 24, the Registrar shall, in addition to the requirements set out in subsection 24(10), provide a notice to the person who is the subject of the order that sets out a date by which the penalty must be paid in full.
(6) Any penalty imposed pursuant to this Section is a debt due to and recoverable by Her Majesty in right of the Province and may be recovered in any manner authorized by law.
(7) Where the time for filing an appeal of an order of the Registrar made pursuant to this Section has passed and there is no appeal or where an appeal has been dismissed, the order may, for the purpose of enforcement of the order, be registered with the Court and may be enforced in the same manner as a judgment of that Court.
74 (1) A penalty must not be assessed by the Registrar more than two years after the date on which the alleged contravention occurred.
(2) A person who has been charged with an offence under this Act shall not be subject to an administrative penalty in respect of the circumstances that gave rise to the charge.
75 (1) The Registrar may issue an order pursuant to subsection (2) if the Registrar is satisfied that it is in the public interest or that the person is not complying with this Act.
(2) Subject to Section 24, in the circumstances referred to in subsection (1), the Registrar may order a person to do all or any of the following:
(a) cease doing an act or cease failing or neglecting to do an act;
76 (1) Where the Registrar is of the opinion that a person has failed to comply with this Act, the Registrar may apply to the Court for all or any of the following:
(a) an order directing the person to comply with this Act or restraining the person from contravening this Act;
(b) an order directing the directors and officers of a corporation or the partners of a partnership to comply with this Act or restraining the directors and officers or partners from contravening this Act.
(2) On an application pursuant to subsection (1), the Court may make any order that the Court considers necessary.
77 (1) Subject to Section 24, after conducting a proceeding respecting a person, including an inspection or investigation pursuant to this Act, the Registrar may order the person to pay the costs of or related to the proceeding if the Registrar is satisfied that the person whose affairs were the subject of the proceeding has not complied with a provision of this Act.
(2) For the purpose of subsection (1), the costs that the Registrar may order the person to pay include all or any of the following:
(a) costs incurred with respect to services provided by a person engaged, appointed or retained by the Registrar for the purpose of the proceeding;
(b) costs of obtaining a warrant;
(c) costs of matters preliminary to the proceeding;
(d) costs for time spent by the Registrar, by any members of the public service of the Province employed in the office of the Registrar or by any persons engaged, appointed or retained by the Registrar;
(f) costs of legal services provided to the Registrar.
(3) Where a person is convicted of an offence pursuant to this Act, the Registrar may, subject to Section 24, order the person to pay the costs of any investigation carried out with respect to that offence, including any costs incurred with respect to either or both of the following:
(a) the provision of services by persons engaged, appointed or retained by the Registrar;
(b) the appearance of any witnesses.
(4) An order of the Registrar made pursuant to this Section may, for the purpose of enforcement of the order, be registered with the Court and may be enforced in the same manner as a judgment of that Court.
(5) The Civil Procedure Rules respecting costs do not apply to costs referred in this Section.
(6) No provision of this Act is to be interpreted as precluding a court from ordering costs payable to the Registrar.
(7) Where costs are awarded to the Registrar in any proceeding, the costs of the Registrar must not to be disallowed or reduced because the lawyer representing the Registrar is a member of the public service of the Province.
(2) Any person who is directly affected by an order or decision of the Registrar made pursuant to this Act may appeal the order or decision to the Court only on the ground of an error of law.
(3) An appeal must not be conducted as a trial de novo.
(4) An appeal must be made within thirty days after receiving a decision or order of the Registrar.
(5) An appellant shall serve a notice of appeal on the Registrar and any other person who the Court orders to be served.
79 On receipt of a notice of appeal pursuant to subsection 78(5), the Registrar shall file with the Court true copies of
(a) all documents and materials that were before the Registrar when the Registrar made the decision or order;
(b) the Registrar's decision or order; and
(c) the Registrar's written reasons for the decision or order.
80 (1) On hearing an appeal pursuant to Section 78, the Court may
(c) allow the appeal subject to terms and conditions;
(d) vary the decision or order of the Registrar;
(e) refer the matter back to the Registrar for
(f) make any other order that the Court considers appropriate.(2) The Court may make any order as to costs on an appeal that the Court considers appropriate.
81 The commencement of an appeal pursuant to Section 78 does not stay the effect of the decision or order appealed from, unless a judge of the Court orders otherwise.
(a) correcting the original order;
(b) ensuring compliance with the original order;
(c) dealing with any material change in circumstances since the original order was issued; or
(d) interpreting the original order.
(2) Before rescinding or amending an order or making an additional order pursuant to subsection (1), the Registrar shall serve a written notice on persons directly affected by the original order and on any other persons the Registrar considers interested in the original order.
83 No action or other proceeding lies, and an action or other proceeding must not be instituted, against
(a) Her Majesty in right of the Province, the Minister, the Registrar or any member of the public service of the Province employed in the office of the Registrar;
(b) any representative of the Registrar; or
(c) any person engaged, appointed or retained by the Registrar to make or conduct any inspection or investigation or to do any other thing pursuant to this Act,
if the person referred to in clause (a), (b) or (c) is acting pursuant to the authority of this Act, for anything in good faith done, caused, allowed or authorized to be done, attempted to be done or omitted to be done pursuant to, or in the exercise or supposed exercise of, any power conferred by this Act or the regulations or in the carrying out, or supposed carrying out, of any function or duty imposed by this Act or the regulations.
84 Except in the case of a prosecution respecting a contravention of this Act or the regulations,
(a) the Registrar or any member of the public service employed in the office of the Registrar;
(b) any representative of the Registrar; and
(c) any person engaged, appointed or retained by the Registrar to make or conduct any inspection or investigation or to do any other thing pursuant to this Act,
are not compellable to give evidence in a court or in a proceeding of a judicial nature to which the Registrar is not a party concerning any information obtained by them or that came to their attention in the exercise of the powers or carrying out of the functions or duties of the Registrar pursuant to this Act.
85 (1) A certificate of the Registrar certifying that
(a) a person named in the certificate was or was not licensed;
(b) a licence was issued to a person on a date set out in the certificate;
(c) the licence of a person was suspended, cancelled or reinstated at a particular time; or
(d) a licence issued to a person was made subject to terms and conditions,
is admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the signature or appointment of the Registrar.
(2) A record certified by the Registrar to be a copy of an original record
(a) is admissible in evidence without proof of the signature or appointment of the Registrar; and
(b) has the same probative value as the original record.
86 Where, in a prosecution or proceeding involving an alleged contravention of this Act, it is alleged that a person carried on business as a mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker or mortgage administrator without a licence, evidence of the person having engaged in one transaction is prima facie evidence that the person is carrying on the business of a mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker or mortgage administrator, as the case may be.
87 (1) Any notice or other document that is required to be served pursuant to this Act or in any proceeding or matter under the jurisdiction of the Registrar may be served
(ii) in the case of a partnership, on any partner, or
(iii) in the case of a corporation, on any officer or director of the corporation;
(c) in the case of a notice to the public, or to persons who are too numerous to be served individually, by publishing the notice in any manner that the Registrar may direct; or
(d) by any other prescribed means.
(2) A notice or document sent by registered mail is deemed to be served on the seventh day following the date of its mailing unless the person to whom it was mailed establishes that, through no fault of his or her own, the person did not receive the notice or document or received it at a later date.
(3) Service of a notice or document to be sent by any other prescribed means is to be proved in the prescribed manner.
(4) A notice or other document required to be served on the Registrar may be served by
(a) leaving it at the office of the Registrar with any person appearing to have authority to accept the notice or document;
(b) registered mail addressed to the address of the office of the Registrar; or
(c) any other prescribed means.
(5) Any person entitled to be served with a notice or a document may at any time waive, in writing, service of the notice or document.
(6) Service of any notice or document may be proved by affidavit or oral evidence of the person claiming to have served it.
88 (1) To register an order of the Registrar with the Court pursuant to subsection 73(7) or 77(4), the Registrar may make a certified copy of the order, upon which is the following endorsement, signed by the Registrar:
Register the within with the Supreme Court of Nova Scotia.
Dated this . . . . . . . . . . day of . . . . . . . . . . . . . . , 20. .
. . . . . . . . . . . . . . . . . . . . . . . .
Registrar of Mortgage Regulation
(2) The Registrar may forward the certified copy referred to in subsection (1) so endorsed, to a prothonotary of the Court who shall, on receipt of the certified copy, enter it as a record and it is thereupon registered with and enforceable in the same manner as a judgment of that Court.
89 (1) The Governor in Council may make regulations
(a) prescribing the fees to be paid for the issuance of licences, the reinstatement of licences that have been suspended and any other fees for services in connection with the administration of this Act and the regulations, including prescribing and requiring the payment of annual fees for continuous licences;
(b) authorizing the Registrar to waive all or part of the prescribed fees and prescribing the circumstances in which the Registrar may do so;
(c) prescribing any matter or thing required or authorized by this Act to be prescribed in the regulations;
(d) defining any word or expression used but not defined in this Act;
(e) respecting any matter or thing the Governor in Council considers necessary or advisable to effectively carry out the intent and purpose of this Act.
(2) The exercise by the Governor in Council of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.
90 (1) The Minister may make regulations
(a) prescribing activities for the purpose of the definition of "mortgage administrator";
(b) prescribing activities for the purpose of the definition of "mortgage broker";
(c) exempting persons or classes of persons from any or all provisions, in whole or in part, of this Act and the regulations and prescribing the type of transactions to which such persons or classes of persons are limited to engaging in without being licensed;
(d) prescribing the information to be contained in registers created and maintained by the Registrar;
(e) prescribing restrictions on the examination or copying of the contents of a register;
(f) prescribing mortgage terms and conditions;
(g) exempting a mortgage lender, mortgage brokerage, mortgage broker, associate mortgage broker or mortgage administrator carrying on business in the Province from the requirement that the person hold a valid licence under this Act;
(h) prescribing requirements that are to be met and criteria that are to be satisfied respecting applicants for licences, including establishing, with respect to persons or categories of persons to whom the Registrar has issued a licence, standards of conduct, competence and proficiency and standards of training and education, including additional and mandatory continuing training and education requirements;
(i) respecting errors and omissions insurance, including prescribing the minimum amount of errors and omissions insurance and the scope of that insurance that an applicant is required to obtain, requiring that the errors and omissions insurance be maintained at all times by a licensee, and requiring proof of that insurance at the time of licensing, or at any time thereafter;
(j) respecting capital requirements, including prescribing the manner of determining the amount of capital that an applicant or licensee is required to maintain, including prescribing
(ii) the amounts of each class of capital that an applicant or licensee is required to have for various purposes, and
(iii) the manner of determining the amount of each class of capital;
(l) prescribing changes in circumstances for the purpose of Section 22;
(m) prescribing the criteria that are to be met by a mortgage lender's compliance officer;
(n) prescribing the information to be provided to a borrower by a mortgage lender, including prescribing the manner in which and time within which that information is to be provided;
(o) prescribing the criteria that are to be met by a principal broker and prescribing the powers and duties of a principal broker;
(p) for the purpose of Section 32, prescribing
(ii) the criteria in accordance with which a mortgage brokerage is to determine the mortgage loan that is most suitable for a borrower, and
(iii) the information that is to be contained in the written assessment, including prescribing the manner in which the written assessment is to be provided to the borrower;
(r) prescribing the information to be provided to a lender and a borrower by a mortgage administrator, including prescribing the manner in which and time within which that information is to be provided;
(s) prescribing terms and conditions and other information that are required to be included in an agreement made between a private investor and a mortgage administrator;
(t) prescribing the information to be provided to a private investor by a mortgage administrator, including prescribing the manner in which that information is to be provided and the time within which any change to that information is to be provided;
(u) prescribing information to be included in financial and other records that are required to be maintained by a licensee;
(v) prescribing the time for, manner in and location at which records are to be maintained by a licensee;
(ii) prohibitions that a licensee is required not to contravene,
(x) prescribing records that are required to be kept with respect to transactions relating to trust property and respecting the process for making, reviewing and reconciling those records, including requiring that a person or class of persons conduct the review and reconciliation of those records at prescribed intervals;
(ii) the financial institutions in which a licensee is allowed to hold a trust account;
(za) prescribing the information and documentation that is required to be contained in, or accompany, a financial statement, including prescribing the period within which that information and documentation is required to be provided;
(zb) prescribing the information that is required to be contained in an advertisement;
(zc) prescribing information that is required to be disclosed in all correspondence and other written material prepared or used by a licensee;
(zd) respecting the service of documents;
(ze) prescribing forms required for the administration of this Act;
(zf) requiring that some or all records or documents required pursuant to this Act be stored, retained or submitted in electronic or other form;
(zg) prescribing the manner in which documents may be electronically stored, retained or submitted;
(zh) respecting any matter necessary to accommodate changes in technology.
(2) The exercise by the Minister of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.
91 Fees paid for permits under the former Mortgage Brokers' and Lenders' Registration Act may be credited toward licensing fees under this Act.
92 Subclause 11(4)(b)(vii) of Chapter 23 of the Revised Statutes, 1989, the Assessment Act, is repealed and the following clause substituted:
(2) Subsection 5(2) of Chapter 94 is amended by striking out "Brokers under the Mortgage Brokers' and Lenders' Registration" in the fifth and sixth lines and substituting "Regulation under the Mortgage Regulation".
94 Chapter 291 of the Revised Statutes, 1989, the Mortgage Brokers' and Lenders' Registration Act, is repealed.
95 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2012 Crown in right of Nova Scotia. Created May 16, 2012. Send comments to legc.office@novascotia.ca.
