Third Session, 46th General Assembly
59 Elizabeth II, 2010
AN ACT TO AMEND THE
Received and Read the First Time...................................................................................................
HONOURABLE HARRY HARDING
Minister of Government Services
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Mortgage Brokers Act to
ˇ clarify that the Registrar of Mortgage Brokers may delegate his or her powers and functions to the Deputy Registrar of Mortgage Brokers;
ˇ add a provision to the Act to allow the registrar to appoint persons to conduct examinations under the Act, and to authorize those examinations where required to determine compliance with the Act and the regulations;
ˇ expand the scope of search and seizure provisions to include the authority to enter and search private dwellings and seize documents and other items;
ˇ provide authority for a person appointed by the registrar to summon and enforce the attendance of a person and to compel that person to testify, and to summon and compel a person or company to produce documents and other things in the context of an examination or investigation under the Act;
ˇ provide authority for a judge to issue a production order requiring a person, other than a person who is the subject of an investigation, to produce documents in his or her possession concerning a violation of the Act or the regulations;
ˇ provide authority for the registrar to issue an order of protection requiring a person or company having funds on deposit or under its control not to disburse or use the money until the order is lifted;
ˇ make it an offence to obstruct or interfere with a lawful investigation or examination;
ˇ increase penalties that the court may impose;
ˇ provide authority for a judge to order restitution where the Act or the regulations have been violated; and
ˇ set a 2 year limitation period for prosecutions under the Act.
AN ACT TO AMEND THE MORTGAGE
Ss.7.1 to 7.3 Added
5. S.14 R&S
6. S.15 R&S
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
RSNL1990 cM-18 as amended
1. Subsection 3(2) of the Mortgage Brokers Act is repealed and the following substituted:
(2) The Lieutenant-Governor in Council may appoint a Deputy Registrar of Mortgage Brokers
(a) to act in place of the registrar in his or her absence or incapacity; and
(b) to exercise the powers and perform the duties of the registrar under this Act or the regulations that may be assigned by the registrar.
2. The Act is amended by adding immediately after section 6 the following:
6.1 (1) The registrar may appoint persons to conduct examinations under this Act.
(2) Where it is reasonably necessary to ensure compliance with this Act or the regulations, a person appointed by the registrar under subsection (1) may, for the purpose of conducting an examination, at reasonable times enter the premises of a mortgage broker and
(a) require the production of books, records or other documents applicable to the operations of that mortgage broker under this Act or the regulations and may examine those books, records or documents or remove them for the purpose of making copies of them;
(b) interview employees of a mortgage broker to determine if the mortgage broker is complying with this Act and the regulations; and
(c) inquire into all matters relating to the operations of the mortgage broker under this Act and the regulations.
(3) A mortgage broker whose premises is entered under subsection (1) and a person found there shall give the person conducting the examination reasonable help to enable that person to carry out his or her duties and functions under this Act and shall provide the information that he or she may reasonably require.
(4) Where a person conducting an examination under subsection (1) removes books, records or other documents under paragraph (1)(a), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.
(5) The registrar may require the annual examination of a mortgage broker under this section or more frequent examinations where he or she considers it necessary.
3. Section 7 of the Act is repealed and the following substituted:
7. (1) The registrar may appoint persons to conduct investigations under this Act.
(2) Where a person appointed under subsection (1) or subsection 6.1(1) believes on reasonable grounds that a person is contravening or has contravened this Act or the regulations, that person may, with a warrant issued under subsection (3), enter those premises and seize anything that may provide evidence of the contravention.
(3) A judge of the Provincial Court or the Trial Division who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act or the regulations has occurred, or is occurring, may issue a warrant authorizing the person named in the warrant to enter the private or public premises, including a dwelling house, and to
(b) examine the contents of the premises and make those inquiries that the person considers necessary; and
(c) copy, extract, photograph, video, seize and take away evidence, books and records
for the purpose of investigating the suspected contravention.
(4) A mortgage broker and the owner or operator of private or public premises referred to in this section and a person found there shall not obstruct the person named in the warrant in its execution.
4. The Act is amended by adding immediately after section 7 the following:
Powers of examiner or investigator
7.1 (1) A person appointed by the registrar to conduct an examination or an investigation has the same power to summon and enforce the attendance of a person and to compel him or her to testify on oath or otherwise, and to summon and compel a person or company to produce documents and other things, that is vested in a judge of the Trial Division, and the refusal of the person to attend or to answer questions or of a person or company to produce documents or other things that are in his, her or its custody or possession makes the person or company liable to be committed for contempt by a judge of the Trial Division as if in breach of an order of that court.
(2) A person or company giving evidence under subsection (1) may be represented by counsel and may claim a privilege to which the person or company is entitled.
7.2 (1) A judge of the Provincial Court or a judge of the Trial Division may order a person, other than a person who is the subject of an investigation,
(a) to produce a document or a copy of a document, certified by affidavit to be a true copy, or to produce data; or
(b) to prepare a document based on a document or data already in existence and to produce it.
(2) An order referred to in subsection (1) shall require the document or data to be produced within the time, at the place and in the form specified and to be given to a person appointed by the registrar to perform an investigation or examination under this Act.
(3) A judge may make an order referred to in subsection (1) where he or she is satisfied on the basis of an application made in writing on oath or affirmation and without notice that there are reasonable grounds to believe that
(a) a person has contravened or is contravening this Act or the regulations or is suspected to have contravened this Act or the regulations;
(b) the document or data will provide evidence respecting a contravention or suspected contravention of this Act or the regulations; and
(c) the person who is subject to the order has possession or control of the document or data.
(4) An order referred to in subsection (1) may contain terms and conditions that the judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and his or her client.
(5) The order referred to in subsection (1) may be revoked, renewed or varied.
(6) A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.
(7) Copies of documents produced under this section are not required to be returned to the person who provided them.
7.3 (1) Where the registrar considers it necessary for the administration of this Act, the registrar may direct a person, having on deposit or under his or her control or for safekeeping funds of a person, to retain those funds and to hold them until the registrar in writing revokes the direction or consents to release a particular fund from the direction, or until a judge of the Trial Division orders otherwise.
(2) A direction under subsection (1) that names a bank or other financial institution shall apply only to a branch of the bank or other financial institution identified in the direction.
(3) As soon as practicable, and not later than 7 days after a direction is issued under subsection (1), the registrar shall apply to a judge of the Trial Division to continue the direction or for another order that the judge considers appropriate.
(4) A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent immediately by means that the registrar may determine to all persons named in the direction.
5. Section 14 of the Act is repealed and the following substituted:
14. (1) A person shall not interfere with or obstruct a person in the course of a lawful investigation or examination under this Act or the regulations.
(2) A person who contravenes a provision of this Act or the regulations is liable on summary conviction to a fine of not more than
(a) $100,000; or
(b) an amount equal to 3 times the amount obtained by the person as a result of the offence, whichever is greater,
or to a term of imprisonment of not more than 2 years, or to both a fine and imprisonment.
(3) Where a person is convicted of an offence under this Act or the regulations, the court making the conviction may, in addition to another penalty, order the person convicted to pay compensation or restitution.
6. Section 15 of the Act is repealed and the following substituted:
15. A prosecution under this Act or the regulations shall not be started more than 2 years from date the offence was discovered by the registrar.
ŠEarl G. Tucker, Queen's Printer