Mortgage Broker

CMB MAGAZINE cmba-achc.ca winter 2017 | 57 fees or remuneration. e Superintendent sent the NOPs to the MB both by registered and regular mail. e MB did not receive the registered-mail copy. He had been locked out of his home (the address registered with the Superintendent and to which the NOPs had been sent) by the holder of his mortgage and had not advised the Superintendent of his new address. e MB did receive the regular-mail copy; he indicated he had received it only a few days before he sent his response to the Superintendent. e response was not received by the Superintendent within the time frame stated on the NOP. at aside – perhaps because it is the registered-mail copy that has legislative significance – the decision refers to the regular-mail copy in only, effectively, a passing manner. e NOPs indicated, in bold: "[A] hearing … may be requested by completing the enclosed Request for Hearing (Form 1) and submitting it to the Tribunal within 15 days aer the Notice is received." ey further indicated, also in bold, that if a Request was received within 15 days, the Tribunal would hold a hearing, but if no Request was submitted within 15 days, the Superintendent would carry out the proposals. e stated 15-day period was as provided in the Act. e MB requested a hearing, but did so aer the 15-day deadline. e Superintendent was not willing to waive the 15-day deadline. Could the FST, assuming it was inclined to do so, waive the deadline without the consent of the Superintendent? The Decision Without deciding whether it should waive the deadline, the FST concluded that it could not waive it. e Act provides that: n an MB is required to register, with the Superintendent, an address suitable for receiving registered mail; n an MB is to change the registered address within five days of a change occurring; and n a notice sent by the Superintendent to the address in its database as the current address for an MB is deemed to have been delivered to the MB on the fih day from mailing. e Superintendent had sent both letters to the address in its database. ere was no indication that the registered letter was received. Accordingly, it was deemed to have been received on the fih day aer mailing. e MB's response was due within 15 days of that date. e MB's circumstances, including being locked out of his home, did not excuse him from the strict requirements of the Act. ere was no indication that the MB was unable or incapacitated to such a degree that he should have been excused from the requirement to keep the Superintendent informed of the appropriate address at which to reach him by registered mail. e Ontario Statutory Powers Procedure Act allows time periods set by statute to be waived by the FST with the consent of the parties. e Superintendent did not consent. e FST concluded that as the MB did not request a hearing within the time permitted by the Act, and as the Superintendent did not waive the time limit, the FST had no jurisdiction to extend the time for the MB to file the response. e FST concluded it had no jurisdiction to conduct a hearing in the matter, and the Superintendent was entitled to carry out the proposals. The Takeaway Regardless of the province in which you are registered or licensed, you should respond to communications from your regulator within any statutory time limits, including within any time limits provided in regulations. If you do not file your response in time, you risk not being permitted to file your response at all. If you want to obtain legal advice before responding, you would be wise to obtain that advice well in advance of the deadline, to allow you or your lawyer to file a timely response.

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