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firstnational.ca
That's a huge number, representing
a combined 895 years of service
experience through First National's
203 residential branch staff – and
every one of them is dedicated
to working with you, for your
customers. Our expedited approval
process, dedicated underwriter
support and exceptional service
mean we can help you focus on
the most important priorities of
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2.3
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1
EXCEPTIONAL
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93414 FN ResidAd MBABC Ev1.indd 1 2014-08-08 4:29 PM
MortgageBroker mbabc.ca fall 2014 | 31
legalease
balancing. Even though to some degree the provisions of the Act
serve to protect the interests of investors, the overall scheme of the
Act mandates that the Registrar's duty of care is not owed to investors
exclusively but to the public as a whole.
Can we really say the public is better protected by regulating the
person who arranges a dozen mortgages with a total face value of
$60,000 and excluding from regulation the person who arranges a
single mortgage with a face value of $6 million? Are both the lenders
and borrowers less worthy of protection because a borrower invites
the person to broker the deal? Should the 'broker' not be regulated
so as to obligate him to disclose to the lender the relationship and
fee arrangement (at least what he thought to be a fee arrangement)
with the borrower? Should the 'broker' not be obligated to disclose
his relationship with the lender to the borrower? Should cost of credit
disclosure protections not apply to such a large transaction?
e problem exists because the definition of mortgage broker
contained in s.1(d) is not fully supported by a clause providing
enforcement. A person who fulfills s.1(d) by, in any one year, receiving
an amount of $1,000 or more in fees for arranging mortgages for other
persons is not subject to regulation unless they are found to be carrying
on business as a mortgage broker. It should be noted that the fact s.1(d)
refers to mortgages and persons rather than to mortgage and person
does not add to the problem. Section 28(c) of the B.C. Interpretation Act
states: "In an enactment words in the . . . plural include the singular."
e solution is to eliminate the s.21 requirement that in order to
enforce the portion of the definition of mortgage broker contained
in s.1(d), the person must be carrying on the business of mortgage
brokering. Surely protecting the public interest demands the change?
is is particularly noteworthy at a time when the
MBA is being looked
at by the government for amendment or replacement.
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