Mortgage Broker

42 | spring 2016 cmba-achc.ca CMB MAGAZINE privacymatters power to demand. If the regulator asks you to provide records in a way that exceeds its power, it cannot demand that you provide the records, but rather can only request that you do so. hoW can a morTgage broker Tell if The communicaTion from The regulaTor for records amounTs To a requesT or a demand? e fact is, you are unlikely to have a working knowledge of the various laws under which enforcement authorities can make demands for records. On the other hand, an enforcement authority can reasonably be expected to understand and explain the law under which it exercises a power to demand records. You need to obtain this explanation and then assess the validity of any demand for records. Following is a reasonable way for you to obtain the explanation. The TakeaWay Do not be impressed or intimidated by the enforcement authority having asked for the records. In deciding whether to provide the records, focus not on the enforcement authority but rather on the lawfulness of the request or demand itself. Do not unduly hamper the enforcement authority. e enforcement authority has a responsibility to enforce laws and it is quite proper for it to perform its function. is includes the enforcement authority, when lawful for it to do so, demanding that you disclose records. Nevertheless, it would be repugnant to allow an enforcement authority to infringe the rights of others by exceeding its powers (that is, to break the law) in its effort to enforce the law. It is incumbent upon the enforcement authority to justify its use of power if asked to do so. it is reasonable for you to advise the enforcement authority as follows: 1. You are willing to comply if the enforcement authority is making a lawful demand for records. 2. You require: a) the communication asking for records be provided totally in writing; b) the communication to clearly state that it is a lawful demand and not a mere request for records; c) the communication to clearly identify the enforcement authority, as well as the name and position of the person making the demand on behalf of the authority; d) the communication to identify the statute/regulation authorizing the demand (including at least the subsection and, if possible, the specific wording of the subsection and other relevant sections); e) the communication to set out the facts that bring the demand within the authorizing law (for example, the law might state, 'e regulator may, when conducting an investi- gation into the activities of a mortgage broker, make demand that a person the regulator reasonably believes possesses or controls records relevant to the investigation disclose such records to the regulator.' e communi- cation should set out that the demand is being made by the regulator, the regulator is conducting an investigation into the activities of a mortgage broker, the regulator reasonably believes that you possess or control records relevant to the investigation, and the regulator is demanding that you disclose the records to the regulator); f ) the communication to, as much as is practical in the circumstances, specify the particular records or class of records covered by the demand (such as an individual file, banking records covering a certain period or records relating to a named person). Once you have the written response from the enforcing authority, you are in a position to assess whether it amounts to a demand for records or is but a mere request for records. You are then in a position to assess your obligations and options concerning compliance. Some of you will be able to do this on your own; others should seek legal advice. To possibly avoid creating further problems (such as breaching privacy), none of you should comply with the request (that is, disclose records) without making the assessment.

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