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Mortgage Brokerages, Lenders and Administrators Act, 2006

ONTARIO REGULATION 407/07

eXEMPTIONS FROM THE REQUIREMENTS TO BE LICENSED

Consolidation Period:  From January 1, 2015 to the e-Laws currency date.

Last amendment:  O. Reg. 237/14.

This is the English version of a bilingual regulation.

CONTENTS

Exemptions for Simple Referrals

1.

When providing information to a prospective borrower

2.

When providing information to a prospective lender

Exemptions for Lawyers

3.

When dealing in mortgages

4.

When trading in mortgages

5.

When administering mortgages

Exemptions for Other Persons and Entities

general exemptions

6.

For trustees in bankruptcy

7.

When acting under court order

8.

For certain statutory corporations

8.1

For personal corporation of broker, agent

8.2

For certain corporations (motor vehicle dealership financing)

9.

For directors, employees, etc., of Crown agencies

10.

For directors, employees, etc., of certain exempted persons and entities

exemptions for dealing in mortgages

11.

For consumer reporting agencies

11.1

Limited exemption, registered real estate brokerages, etc.

exemptions for trading in mortgages

12.

For registered dealers

13.

In connection with mortgage securitization

14.

When acting through an intermediary

exemptions for mortgage lending

15.

When acting through an intermediary

exemptions for administering mortgages

16.

When acting for the Crown

17.

When acting for a financial institution, etc.

18.

For collection agencies

19.

In connection with mortgage-backed securities

 

Exemptions for Simple Referrals

When providing information to a prospective borrower

1. (1) A person or entity who refers a prospective borrower to a prospective mortgage lender is exempted under subsection 6 (4) of the Act from the requirement in section 2 of the Act to have a brokerage licence or a mortgage broker’s or agent’s licence if the person or entity complies with both of the following requirements and criteria:

1. Before or at the time of making the referral, the person or entity informs the prospective borrower in writing,

i. that the person or entity has received or will or may receive a fee or other remuneration, whether directly or indirectly, for making the referral, and

ii. of the nature of the relationship between the person or entity and the prospective lender.

2. The only other information that the person or entity is permitted to give to the prospective borrower is the name, address, telephone number, fax number, email address or website address of the prospective lender or of an individual who acts on behalf of the prospective lender.  O. Reg. 407/07, s. 1 (1).

(2) Nothing in subsection (1) affects the right of a person or entity who does not have a brokerage licence or a mortgage broker’s or agent’s licence to refer a prospective borrower to a prospective lender for no fee or other remuneration.  O. Reg. 407/07, s. 1 (2).

When providing information to a prospective lender

2. (1) A person or entity who refers a prospective mortgage lender to a prospective borrower is exempted under subsection 6 (5) of the Act from the requirement in section 2 of the Act to have a brokerage licence or a mortgage broker’s or agent’s licence if the person or entity complies with all of the following requirements and criteria:

1. Before making the referral, the person or entity informs the prospective borrower in writing,

i. that the person or entity has received or will or may receive a fee or other remuneration, whether directly or indirectly, for making the referral, and

ii. of the nature of the relationship between the person or entity and the prospective lender.

2. The person or entity then obtains the prospective borrower’s written consent to give specified information to the prospective lender.

3. The only information that the person or entity is permitted to give to the prospective lender is the name, address, telephone number, fax number, email address or website address of the prospective borrower or of an individual who acts on behalf of the prospective borrower.

4. The person or entity does not give the prospective lender any information about the prospective borrower other than the information that is authorized by both paragraph 3 and the written consent of the prospective borrower.  O. Reg. 407/07, s. 2 (1).

(2) Nothing in subsection (1) affects the right of a person or entity who does not have a brokerage licence or a mortgage broker’s or agent’s licence to refer a prospective lender to a prospective borrower for no fee or other remuneration.  O. Reg. 407/07, s. 2 (2).

Exemptions for Lawyers

When dealing in mortgages

3. A lawyer is exempted under subsection 6 (6) of the Act from the requirement under section 2 of the Act to have a brokerage licence or a mortgage broker’s or agent’s licence if both of the following circumstances exist:

1. The lawyer, acting in his or her professional capacity as a lawyer on behalf of a client,

i. solicits a person or entity to lend money on the security of real property, or

ii. engages in an activity described in paragraph 2, 3 or 4 of subsection 2 (1) of the Act.

2. The lawyer does not hold himself or herself out as engaging in any activity described in subsection 2 (1) of the Act, except as described in paragraph 1 of this section, or otherwise as dealing in mortgages.  O. Reg. 407/07, s. 3.

When trading in mortgages

4. A lawyer is exempted under subsection 6 (6) of the Act from the requirement in section 3 of the Act to have a brokerage licence or a mortgage broker’s or agent’s licence if both of the following circumstances exist:

1. The lawyer, acting in his or her professional capacity as a lawyer on behalf of a client, engages in an activity described in paragraph 1 or 2 of subsection 3 (1) of the Act.

2. The lawyer does not hold himself or herself out as engaging in any activity described in subsection 3 (1) of the Act, except as described in paragraph 1 of this section, or otherwise as trading in mortgages.  O. Reg. 407/07, s. 4.

When administering mortgages

5. A lawyer is exempted under subsection 6 (6) of the Act from the requirement in section 5 of the Act to have a mortgage administrator’s licence if both of the following circumstances exist:

1. The lawyer administers mortgages, acting in his or her professional capacity as a lawyer on behalf of a client.

2. The lawyer does not hold himself or herself out as administering mortgages, except as described in paragraph 1 of this section.  O. Reg. 407/07, s. 5.

Exemptions for Other Persons and Entities

general exemptions

For trustees in bankruptcy

6. A person or entity who is acting as a trustee in bankruptcy is exempted under subsections 6 (7) and (9) of the Act from any requirement to have a brokerage licence or a mortgage administrator’s licence.  O. Reg. 407/07, s. 6.

When acting under court order

7. A person or entity who is acting under an order of the Superior Court of Justice is exempted under subsections 6 (7) and (9) of the Act from any requirement to have a brokerage licence or a mortgage administrator’s licence.  O. Reg. 407/07, s. 7.

For certain statutory corporations

8. The following corporations are exempted under subsections 6 (7) and (9) of the Act from any requirement to have a brokerage licence or a mortgage administrator’s licence:

1. Eastern Ontario Development Corporation.

2. Northern Ontario Development Corporation.

3. Ontario Development Corporation.

4. Ontario Infrastructure and Lands Corporation.

5. Ontario Mortgage and Housing Corporation.

6. Revoked:  O. Reg. 211/11, s. 1 (2).

O. Reg. 407/07, s. 8; O. Reg. 211/11, s. 1.

For personal corporation of broker, agent

8.1 (1) In this section,

“member brokers and agents” means, in respect of a corporation, every broker or agent who is an employee or shareholder of the corporation.  O. Reg. 186/08, s. 1 (1).

(2) Expressions used in this section have the same meaning as in the standards of practice prescribed for brokerage licences.  O. Reg. 186/08, s. 1 (1).

(3) A corporation is exempted under subsection 6 (7) of the Act from any requirement to have a brokerage licence if all of the following circumstances exist:

1. Every member broker and agent of the corporation is authorized to deal or trade in mortgages on behalf of a particular brokerage.

2. The corporation does not carry on the business of dealing or trading in mortgages otherwise than by providing the services of its member brokers and agents to the particular brokerage.

3. The corporation does not carry on business as a mortgage lender unless it does so solely through the particular brokerage.

4. The corporation and its member brokers and agents do not represent to the public in any manner, directly or indirectly, that the corporation carries on the business of dealing or trading in mortgages or carries on business as a mortgage lender.

5. The corporation does not receive, directly or indirectly, revenue for dealing or trading in mortgages from any person or entity other than the particular brokerage.

6. The member brokers and agents do not receive, directly or indirectly, fees or other remuneration for dealing or trading in mortgages from any person or entity other than the corporation or the particular brokerage.

7. The corporation does not, on behalf of the particular brokerage, directly or indirectly hold funds or other assets received from borrowers, lenders or investors in connection with dealing or trading in mortgages.

8. A majority of the corporation’s directors are member brokers and agents.

9. A majority of the equity of the corporation is legally and beneficially owned, directly or indirectly, by one or more of its member brokers or agents.

10. There is a written agreement between the particular brokerage and each member broker or agent governing the relationship between the brokerage and the broker or agent.

11. There is a written agreement between the corporation and the particular brokerage governing the relationship between the brokerage and the corporation and its member brokers and agents.

12. Under the agreement between the corporation and the particular brokerage, the corporation agrees not to hinder or obstruct the brokerage or its principal broker in the performance of their duties under the Act and not to obstruct or hinder the member brokers and agents in the performance of their duties under the Act.

13. Under the agreement between the corporation and the particular brokerage, the corporation agrees to provide whatever assistance may be reasonably necessary to enable the brokerage and its principal broker to comply with their duties under the Act and to enable the brokerage and its principal broker to ensure that the member brokers and agents are complying with their duties under the Act.

14. Under the agreement between the corporation and the particular brokerage, the corporation agrees to provide whatever assistance may be reasonably necessary to enable the brokerage to determine whether the circumstances entitling the corporation to the exemption established by this section exist.  O. Reg. 186/08, s. 1 (1).

For certain corporations (motor vehicle dealership financing)

8.2 (1) In this section,

“eligible mortgage” means a mortgage described in subsection (5); (“hypothèque admissible”)

“registered motor vehicle dealer” means a person who is registered under the Motor Vehicle Dealers Act, 2002 as a motor vehicle dealer. (“commerçant de véhicules automobiles inscrit”)  O. Reg. 186/08, s. 1; O. Reg. 78/09, s. 2; O. Reg. 174/09, s. 1.

(2) This section applies to the following corporations:

1. BMW Canada Inc.

2. Ford Credit Canada Limited.

3. General Motors Financial of Canada, Ltd.

4. Honda Canada Finance Inc.

5. Mercedes-Benz Financial Services Canada Corporation.

6. Nissan Canada Financial Services Inc.

7. Toyota Credit Canada Inc.

8. VFS Canada Inc.

9. VW Credit Canada, Inc.

10. Hyundai Capital Canada Inc. O. Reg. 314/13, s. 1; O. Reg. 237/14, s. 1.

(3) A corporation listed in subsection (2) is exempted under subsection 6 (7) of the Act from the requirement in section 2, 3 or 4 of the Act to have a brokerage licence if the corporation deals or trades in, or lends money on the security of, eligible mortgages only and if it does not engage in other activities requiring a brokerage licence.  O. Reg. 186/08, s. 1 (1).

(4) A corporation listed in subsection (2) is exempted under subsection 6 (9) of the Act from the requirement in section 5 of the Act to have a mortgage administrator’s licence if the corporation administers eligible mortgages only and does not engage in other activities requiring a mortgage administrator’s licence.  O. Reg. 186/08, s. 1 (1).

(5) A mortgage is an eligible mortgage for the purposes of this section if all of the following conditions are satisfied:

1. One or more of the following persons or entities is either the borrower under the mortgage or guarantees payment of the mortgage:

i. a registered motor vehicle dealer,

ii. a person or entity with an ownership interest in a registered motor vehicle dealer,

iii. a person or entity in which a registered motor vehicle dealer has an ownership interest.

2. The mortgage loan is made for the purposes of the business for which the registered motor vehicle dealer requires the registration or for the purposes of another business that is ancillary to that business.

3. The real property that secures the mortgage loan is not a residential premises in whole or in part.  O. Reg. 186/08, s. 1 (1).

For directors, employees, etc., of Crown agencies

9. (1) In this section,

“Crown agency” means an agency of the Crown in right of Ontario, Canada or another province or territory of Canada.  O. Reg. 407/07, s. 9 (1).

(2) Every individual who is an officer or employee of a Crown agency or is a director, partner or member of the governing body of a Crown agency is exempted under subsection 6 (8) of the Act from the requirement in section 2 or 3 of the Act to have a mortgage broker’s or agent’s licence if he or she deals or trades in mortgages solely on behalf of the Crown agency in the ordinary course of his or her duties.  O. Reg. 407/07, s. 9 (2).

For directors, employees, etc., of certain exempted persons and entities

10. (1) In this section,

“exempted person or entity” means a person or entity who is exempted under subsection 6 (4), (5), (6) or (7) of the Act from the requirement in section 2 or 3 of the Act to have a brokerage licence.  O. Reg. 407/07, s. 10 (1).

(2) Every individual who is an officer or employee of an exempted person or entity or is a director, partner or member of the governing body of such a person or entity is exempted under subsection 6 (8) of the Act from the requirement in section 2 or 3 of the Act to have a mortgage broker’s or agent’s licence if he or she deals or trades in mortgages solely on behalf of the person or entity in the ordinary course of his or her duties.  O. Reg. 407/07, s. 10 (2).

(3) Despite subsection (2), if there are conditions or restrictions that apply with respect to the exempted person’s or entity’s exemption, the individual’s exemption is subject to corresponding restrictions.  O. Reg. 407/07, s. 10 (3).

(4) This section does not apply to an individual who is an officer or employee of a corporation that is exempted under section 8.1 or to an individual who is a director, partner or member of the governing body of such a corporation.  O. Reg. 186/08, s. 2.

exemptions for dealing in mortgages

For consumer reporting agencies

11. A consumer reporting agency registered under the Consumer Reporting Act is exempted under subsection 6 (7) of the Mortgage Brokerages, Lenders and Administrators Act, 2006 from the requirement in section 2 of the Act to have a brokerage licence if both of the following circumstances exist:

1. In the course of acting as a consumer reporting agency, the agency provides information about prospective borrowers to prospective mortgage lenders, whether or not the Act governs the lenders.

2. The agency does not hold itself out as otherwise dealing in mortgages.  O. Reg. 407/07, s. 11.

Limited exemption, registered real estate brokerages, etc.

11.1 (1) In this section,

“registered real estate broker or salesperson” means an individual who is registered under the Real Estate and Business Brokers Act, 2002 as a broker or salesperson, as the case may be; (“courtier ou agent immobilier inscrit”)

“registered real estate brokerage” means a person or entity who is registered under the Real Estate and Business Brokers Act, 2002 as a brokerage; (“maison de courtage immobilier inscrite”)

“trade in real estate” has the same meaning as in the Real Estate and Business Brokers Act, 2002. (“opération immobilière”, “mener des opérations immobilières”)  O. Reg. 186/08, s. 3.

(2) If both of the following circumstances exist, a registered real estate brokerage is exempted under subsection 6 (7) of the Act from the requirement in section 2 of the Act to have a mortgage brokerage licence when arranging a vendor take-back mortgage, or attempting to do so, in the course of a trade in real estate:

1. The registered real estate brokerage does not hold itself out as otherwise dealing in mortgages.

2. The registered real estate brokerage does not engage in any other activity that requires a licence under the Act.  O. Reg. 186/08, s. 3.

(3) If all of the following circumstances exist, a registered real estate broker or salesperson is exempted under subsection 6 (8) of the Act from the requirement in section 2 of the Act to have a mortgage broker’s or agent’s licence when arranging a vendor take-back mortgage, or attempting to do so, in the course of a trade in real estate:

1. The registered real estate brokerage for whom he or she is a real estate broker or salesperson is exempted by subsection (2) from the requirement to have a mortgage brokerage licence.

2. The registered real estate broker or salesperson does not hold himself or herself out as otherwise dealing in mortgages.

3. He or she does not engage in any other activity that requires a licence under the Act.  O. Reg. 186/08, s. 3; O. Reg. 314/13, s. 2.

exemptions for trading in mortgages

For registered dealers

12. A person or entity who is registered as a dealer under the Securities Act is exempted under subsection 6 (7) of the Mortgage Brokerages, Lenders and Administrators Act, 2006 from the requirement under section 3 of the Act to have a brokerage licence if the following circumstances exist:

1. The person or entity, acting on its own behalf, buys, sells or exchanges mortgages with one or more of the following persons or entities or, acting on its own behalf, solicits one or more of the following persons or entities to buy, sell or exchange mortgages:

i. The Crown in right of Ontario, Canada or any province or territory of Canada.

ii. A brokerage acting on its own behalf.

iii. A financial institution.

iv. A corporation that is a subsidiary of a person or entity described in paragraph 1, 2 or 3.

v. A corporation that is an approved lender under the National Housing Act (Canada).

vi. An administrator or trustee of a registered pension plan within the meaning of subsection 248 (1) of the Income Tax Act (Canada).

vii. A person or entity who is registered as an adviser or dealer under the Securities Act when the person or entity is acting as a principal or as an agent or trustee for accounts that are fully managed by the person or entity.

viii. A person or entity who is registered under securities legislation in another province or territory of Canada with a status comparable to that described in subparagraph vii when the person or entity is acting as a principal or as an agent or trustee for accounts that are fully managed by the person or entity.

ix. A person or entity in respect of which all of the owners of interests, except the voting securities required by law to be owned by directors, are persons or entities described in subparagraphs i to viii.

2. The person or entity does not hold themself out as otherwise trading in mortgages.

3. The person or entity is not otherwise required to be licensed.  O. Reg. 407/07, s. 12.

In connection with mortgage securitization

13. (1) A person or entity is exempted under subsection 6 (7) of the Act from the requirement in section 3 of the Act to have a brokerage licence if both of the following circumstances exist:

1. The person or entity carries on the business of trading in mortgages in connection with mortgage securitization.

2. The person or entity is not otherwise required to be licensed.  O. Reg. 407/07, s. 13 (1).

(2) In this section,

“mortgage securitization” means the creation of securities, as defined in the Securities Act, that represent an interest in, or obligations backed by, a mortgage or a discrete pool of mortgages.  O. Reg. 407/07, s. 13 (2).

When acting through an intermediary

14. A person or entity is exempted under subsection 6 (7) of the Act from the requirement in section 3 of the Act to have a brokerage licence if the person or entity buys, sells or exchanges mortgages on its own behalf through a mortgage brokerage or a person or entity that is exempted from the requirement to have a brokerage licence.  O. Reg. 407/07, s. 14.

exemptions for mortgage lending

When acting through an intermediary

15. A person or entity is exempted under subsection 6 (7) of the Act from the requirement in section 4 of the Act to have a brokerage licence if the person or entity carries on business as a mortgage lender solely through a mortgage brokerage or a person or entity that is exempted from the requirement to have a brokerage licence.  O. Reg. 407/07, s. 15.

exemptions for administering mortgages

When acting for the Crown

16. A person or entity is exempted under subsection 6 (9) of the Act from the requirement in section 5 of the Act to have a mortgage administrator’s licence if the person or entity carries on the business of administering mortgages on behalf of the Crown in right of Ontario, Canada or another province or territory of Canada and if the person or entity is not otherwise required to be licensed.  O. Reg. 407/07, s. 16.

When acting for a financial institution, etc.

17. (1) A person or entity is exempted under subsection 6 (9) of the Act from the requirement in section 5 of the Act to have a mortgage administrator’s licence if the person or entity carries on the business of administering mortgages on behalf of a financial institution or finance company and if the person or entity is not otherwise required to be licensed.  O. Reg. 407/07, s. 17 (1).

(2) For the purposes of this section,

“affiliate”, with respect to a corporation, has the same meaning as in the Business Corporations Act; (“membre du même groupe”)

“finance company” means a corporation or partnership, other than a financial institution, that satisfies both of the following criteria:

1. A material business activity of the corporation or partnership involves making or refinancing loans, or entering into other similar arrangements for advancing funds or credit.

2. The shares or ownership interests of the corporation or partnership, or of another person or entity with which it is affiliated, are listed on a stock exchange in Canada or outside Canada that is a prescribed stock exchange for the purposes of the Income Tax Act (Canada). (“société de financement”)  O. Reg. 407/07, s. 17 (2).

(3) For the purposes of the definition of “finance company” in subsection (2), a partnership is affiliated with another person or entity if one of them is controlled by the other or if both are controlled by the same person or entity.  O. Reg. 407/07, s. 17 (3).

For collection agencies

18. A collection agency that is registered under the Collection Agencies Act is exempted under subsection 6 (9) of the Mortgage Brokerages, Lenders and Administrators Act, 2006 from the requirement in section 5 of the Act to have a mortgage administrator’s licence if both of the following circumstances exist:

1. In the course of acting as a collection agency, the agency takes steps, on behalf of another person or entity, to enforce payment by borrowers under mortgages.

2. The agency does not hold itself out as engaging in any other activity described in subsection 5 (1) of the Act or otherwise as administering mortgages.  O. Reg. 407/07, s. 18.

In connection with mortgage-backed securities

19. (1) A person or entity is exempted under subsection 6 (9) of the Act from the requirement in section 5 of the Act to have a mortgage administrator’s licence when the person or entity carries on the business of administering only those mortgages that constitute the assets backing mortgage-backed securities.  O. Reg. 407/07, s. 19 (1).

(2) In this section,

“mortgage-backed securities” means securities, as defined in the Securities Act, that represent an interest in, or obligations backed by, a mortgage or a discrete pool of mortgages.  O. Reg. 407/07, s. 19 (2).

20. Omitted (provides for coming into force of provisions of this Regulation).  O. Reg. 407/07, s. 20.

 

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