“authorized trust account” means, in relation to a mortgage administrator, its mortgage administrator’s trust account established in accordance with section 33;

“business day” means a day that is not a Saturday or holiday within the meaning of section 87 of the Legislation Act, 2006;

“deemed trust funds” means, in relation to a mortgage administrator, money that is deemed by section 32 to be held in trust by the mortgage administrator;

“investor” means a person or entity who makes an investment in a mortgage through the purchase or exchange of a loan or an interest in a loan on the security of real estate.

Duties re syndicated mortgages

2. If there is more than one lender under a mortgage or if there is more than one investor who makes an investment in a mortgage, a mortgage administrator owes to each of the lenders or investors the duties imposed by this Regulation in respect of the mortgage.

Standards Of Practice

Standards of practice

3. The requirements set out in this Regulation are prescribed as standards of practice for every mortgage administrator’s licence that is issued under the Act.

Public Relations

Use of authorized name

4. A mortgage administrator shall not carry on business in a name other than its authorized name.

Use of name, etc., in public relations materials

5. (1) A mortgage administrator shall disclose its authorized name and its licence number in all of its public relations materials and the name and number must be clearly and prominently disclosed.

(2) If the authorized name of a mortgage administrator is, or includes, a franchise name that the mortgage administrator is permitted to use under a franchise agreement, the public relations materials must clearly indicate that the mortgage administrator is independently owned and operated.

(3) In this section,

“public relations materials” means, in relation to a mortgage administrator,

any advertisement by the mortgage administrator that is published, circulated or broadcast by any means, or
any material that a mortgage administrator makes available to the public in connection with its business as a mortgage administrator.

Duty to provide licence information

6. Upon request, a mortgage administrator shall give a person its licence number.

Complaints by the public

7. (1) If a person makes a complaint to a mortgage administrator in writing about its mortgage administration activities, the mortgage administrator shall give the person a written response to the complaint setting out the mortgage administrator’s proposed resolution of the complaint.

(2) The written response must also tell the person who made the complaint that, if the person is not satisfied with the proposed resolution and if the person believes that the complaint relates to a contravention of the Act or a regulation, the person may refer the complaint to the Superintendent.

Customer Relations

Duty re unlawful transactions

8. A mortgage administrator shall not administer a mortgage for a lender or investor if the mortgage administrator has reasonable grounds to believe that the mortgage, its renewal or the investment in it is unlawful.

Duty to verify identity of lender, investor

9. (1) A mortgage administrator shall take reasonable steps to verify the identity of each lender or investor under a mortgage before entering into an agreement with the lender or investor to administer the mortgage.

(2) Subsection (1) does not apply with respect to a lender or investor if a brokerage was required by law to verify the lender’s or investor’s identity in connection with the mortgage.

Restriction re tied selling

10. (1) A mortgage administrator shall not coerce a lender or investor to obtain a product or service from a particular person or entity, including the mortgage administrator, as a condition for obtaining another service from the mortgage administrator.

(2) For the purposes of subsection (1), a mortgage administrator does not coerce a lender or investor, as the case may be, by virtue of offering a service to the lender or investor on more favourable terms than it would otherwise offer, if the more favourable terms are offered on the condition that the lender or investor obtains another product or service from a particular person or entity, including the mortgage administrator.

Restriction re guarantees

11. A mortgage administrator shall not, directly or indirectly, offer or make any guarantee to a lender in respect of a mortgage or to an investor in respect of an investment in a mortgage.

Duty to return certain documents

12. (1) A mortgage administrator shall promptly return deeds, instruments or agreements signed by or on behalf of a borrower, lender or investor and any other documents given to the mortgage administrator by a lender or investor when the mortgage administrator no longer needs the documents in connection with a particular transaction.

(2) A mortgage administrator shall promptly, without charge, return the documents described in subsection (1) to a lender or investor upon a request made in writing.

Information About Fees and Other Payments

Representations re status of payments

13. (1) A mortgage administrator shall not, directly or indirectly, represent to any person or entity that any amounts payable to the mortgage administrator in connection with administering mortgages are set or approved by any government authority.

(2) Subsection (1) does not apply with respect to disbursements that may be made by a mortgage administrator for fees payable to register or deposit instruments under the Land Titles Act or the Registry Act.

Fees, etc., payable by others

14. (1) A mortgage administrator shall give the following information, in writing, to a lender or investor in connection with administering a mortgage:

Whether the mortgage administrator has received, may receive or will receive a fee or other remuneration, directly or indirectly, from another person or entity in connection with the administration of the mortgage.
If a fee or other remuneration or is or may be payable, the identity of the other person or entity, the method of calculating the amount of the fee or other remuneration and, in case of a benefit other than money, the nature of the benefit.

(2) The mortgage administrator shall obtain the written acknowledgement of the lender or investor that the mortgage administrator made the disclosure required by this section.

Fees, etc., payable by the mortgage administrator to others

15. (1) A mortgage administrator shall give the following information, in writing, to a lender or investor in connection with the administration of a mortgage:

Whether the mortgage administrator has paid, may pay or will pay a fee or other remuneration, directly or indirectly, to another person or entity in connection with the administration of the mortgage.
f a fee or other remuneration or is or may be payable, the identity of the other person or entity, the method of calculating the amount of the fee or other remuneration and, in case of a benefit other than money, the nature of the benefit.

(2) The mortgage administrator shall obtain the written acknowledgement of the lender or investor that the mortgage administrator made the disclosure required by this section.

Fees, for referral by mortgage administrator

16. If a mortgage administrator refers a lender or investor or a prospective lender or investor to another person or entity for a fee or other remuneration, the mortgage administrator shall give the following information to the lender or investor or prospective lender or investor either before or when making the referral:

A description of the nature of the relationship between the mortgage administrator and the other person or entity.
A statement concerning whether the mortgage administrator has received, may receive or will receive a fee or other remuneration, directly or indirectly, for making the referral.

Duties in Particular Transactions

Duty re administration agreement

17. (1) A mortgage administrator shall not administer a mortgage for a lender or investor unless the mortgage administrator and each lender or investor have entered into an agreement in writing governing the administration of the mortgage.

(2) The administration agreement must include the following information and must address the following matters:

The legal description of the mortgaged property and the name in which the mortgage is or will be registered under the Land Titles Act or the Registry Act.
If the mortgage is held in trust, the details of the trust.
Particulars of the circumstances in which a lender or investor is permitted to dispose of all or part of the lender’s or investor’s interest in the mortgage.
The disposition to be made of all payments made under the mortgage by the borrower, including penalties and bonuses.
The duty of the mortgage administrator to promptly notify each lender or investor if the mortgage administrator becomes aware of a subsequent encumbrance on the mortgaged property or any other significant change in circumstances affecting the mortgage.
The duty of the mortgage administrator to promptly notify each lender or investor if the borrower defaults under the mortgage.
The rights and duties of each lender or investor under the agreement if the borrower defaults under the mortgage, and the costs for which each lender or investor will be responsible.
The procedures to be followed under the agreement in the event of a foreclosure or in the exercise of a power of sale under the mortgage, and the rights and duties of each lender or investor in either case.
The amount of the fees payable by each lender or investor for the administration of the mortgage, including how the fees are to be calculated, and the method of payment.

Disclosure of mortgage administrator’s relationships

18. (1) A mortgage administrator shall disclose in writing to each lender or investor in a mortgage the nature of the relationship, if any, between the mortgage administrator and each borrower under the mortgage.

(2) Subsection (1) does not apply with respect to a lender or investor who is a mortgage administrator, a brokerage or a financial institution.

(3) The mortgage administrator shall obtain the written acknowledgement of each lender or investor that the mortgage administrator made the disclosure required by this section.

Disclosure of potential conflicts of interest

19. (1) A mortgage administrator shall disclose in writing to each lender or investor in a mortgage any conflict of interest that the mortgage administrator or an employee engaged in administering the mortgage may have in connection with the mortgage.

(2) Subsection (1) does not apply with respect to a lender or investor who is a mortgage administrator, a brokerage or a financial institution.

(3) The mortgage administrator shall obtain the written acknowledgement of each lender or investor that the mortgage administrator made the disclosure required by this section.

Deadline for disclosures

20. (1) Unless the context requires otherwise, every disclosure of information to a lender or investor that is required by this Regulation must be made at the earliest opportunity and, in any case, no later than two business days before the mortgage administrator and the lender or investor enter into a mortgage administration agreement for the applicable mortgage.

(2) If the lender or investor consents in writing to receiving the disclosure after the deadline described in subsection (1), the disclosure may instead be made no later than one business day before the mortgage administrator and the lender or investor enter into the mortgage administration agreement.

Clarity of disclosure, etc.

21. A written disclosure, consent or acknowledgement required by this Regulation must be expressed in plain language that is clear and concise and it must be presented in a manner that is logical and is likely to bring to the attention of the lender or investor, as the case may be, the information that is required to be conveyed.

Mortgage Administration

Receipt for deemed trust funds

22. Upon receiving from a person or entity money that constitutes deemed trust funds, a mortgage administrator shall give the person or entity a written statement setting out the following information:

The amount of the money received by the mortgage administrator.
The date on which the mortgage administrator received the money.
The name of the person or entity from whom the money was received and, if the money was received on behalf of another person or entity, the name of that person or entity.
The purpose for which the money was received, including particulars of the mortgage to which the money relates.

Payments to lender, investor

23. (1) A mortgage administrator shall not make a payment to a lender or investor in connection with the administration of a mortgage unless the payment is made from the principal and interest that has been paid under the mortgage by a borrower.

(2) If a borrower pays an amount by cheque, other than a certified cheque, to the mortgage administrator, the mortgage administrator shall not make a payment from the amount to a lender or investor until after the cheque has cleared and the mortgage administrator has received the funds.

Payment on redemption of mortgage

24. If a mortgage administrator receives proceeds from the redemption or partial redemption of a mortgage, the mortgage administrator shall promptly pay the proceeds to the lender or investor.

Managing the Mortgage Administrator

Duty to establish policies and procedures

25. (1) A mortgage administrator shall establish and implement policies and procedures that are reasonably designed to ensure that the mortgage administrator and every person acting on its behalf in the business of mortgage administration complies with the requirements established under the Act.

(2) A mortgage administrator shall establish and implement policies and procedures providing for the adequate supervision of every person acting on its behalf in the business of mortgage administration.

Duty to establish complaints process

26. (1) A mortgage administrator shall establish a process for resolving complaints from the public about its mortgage administration activities.

(2) The mortgage administrator shall designate one or more individuals to receive and attempt to resolve complaints from the public, and each designated individual must be an employee of the mortgage administrator or someone who is otherwise authorized to act on its behalf.

(3) The mortgage administrator shall keep a record of all written complaints received from the public and all written responses by the mortgage administrator.

Duty to have insurance

27. (1) A mortgage administrator shall maintain errors and omissions insurance in a form approved by the Superintendent with extended coverage for loss resulting from fraudulent acts or shall have some other form of assurance in a form approved by the Superintendent.

(2) The insurance or other assurance must be sufficient to pay a minimum of $500,000 in respect of any one occurrence involving the mortgage administrator and $1 million in respect of all occurrences during a 365-day period involving the mortgage administrator.

Duty to have financial guarantee

28. (1) A mortgage administrator shall maintain a financial guarantee in an amount equal to $25,000.

(2) The financial guarantee may be an irrevocable letter of credit with a financial institution, unimpaired working capital, a surety bond issued by an insurer licensed under the Insurance Act or some other form of financial guarantee in a form approved by the Superintendent.

Required records

29. (1) A mortgage administrator shall maintain the following records:

Complete and accurate financial records of its licensed activities in Ontario.
Complete and accurate records of all documents or written information given to or obtained from a lender or prospective lender, an investor or prospective investor or any other person or entity pursuant to a requirement established under the Act.
Complete and accurate records of every agreement entered into by the mortgage administrator in the course of administering mortgages.

(2) The financial records maintained by a mortgage administrator must distinguish between the deemed trust funds held by it, mortgages held in trust by it for a lender or investor and any other assets pertaining to other activities.

Security of records

30. A mortgage administrator shall take adequate precautions, appropriate to the form of its records, to guard against the falsification of the records.

Records retention

31. (1) A mortgage administrator shall retain all records that relate to an agreement to administer a mortgage for at least six years after the date of maturity of the mortgage.

(2) A mortgage administrator shall retain for at least six years all other records that it is required to create pursuant to a requirement established under the Act.

(3) A mortgage administrator shall retain the records described in subsections (1) and (2) at its principal place of business in Ontario or at another place approved in writing by the Superintendent and, if the records originate at another place of business, the mortgage administrator shall forward them to its principal place of business or the other approved place at the earliest opportunity after they are no longer needed at the place of business where they originate.

(4) Despite subsection (3), records in electronic form need not be retained at the location specified in that subsection if those records can be retrieved from that location in an understandable electronic and paper form promptly upon request.

(5) A mortgage administrator shall ensure that it maintains the capacity to retrieve its electronic records throughout the period during which this section requires the records to be retained.

Managing Deemed Trust Funds

Deemed trust funds

32. (1) Subject to subsection (2), money received by a mortgage administrator directly or indirectly from a borrower, lender or investor in connection with carrying on the business of administering mortgages is deemed, for the purposes of this Regulation, to be held in trust by the mortgage administrator.

(2) Money received by a mortgage administrator for any of the following purposes is not deemed to be held in trust by the mortgage administrator:

Money earned by the mortgage administrator for its services.
Money received to reimburse the mortgage administrator for its expenses.

Authorized trust account

33. (1) A mortgage administrator shall maintain a trust account designated as its mortgage administrator’s trust account at one of the following types of financial institutions in Ontario:

A bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada).
A credit union or caisse populaire to which the Credit Unions and Caisses Populaires Act, 1994 applies.
A corporation registered under the Loan and Trust Corporations Act.
A retail association as defined under the Cooperative Credit Associations Act (Canada).

(2) A mortgage administrator shall not establish or maintain more than one mortgage administrator’s trust account unless it has the prior written consent of the Superintendent to do so.

Administration of trust account

34. (1) A mortgage administrator shall deposit deemed trust funds that it receives into its authorized trust account within two business days after receiving the funds.

(2) A mortgage administrator shall keep deemed trust funds separate from money that does not constitute deemed trust funds.

(3) Unless otherwise agreed to in writing by the beneficial owner of deemed trust funds, any interest earned on the deemed trust funds shall be paid to the beneficial owner.

(4) A mortgage administrator shall not disburse any deemed trust funds except in accordance with the terms upon which the funds were received by the mortgage administrator.

Record of trust account transactions

35. A mortgage administrator shall make a written record of all deemed trust funds that it receives and all transactions relating to the funds, and the record must include the following information:

The contents of the written statement required by section 20 that is given to the person or entity from whom money is received.
With respect to every deposit made to the authorized trust account, the amount of the deposit, the date on which it was made, the name of the person or entity from whom the deposited money was received and the purpose for the deposit, including particulars of the mortgage, if any, to which the deposit relates.
With respect to every disbursement made from the authorized trust account, the amount of the disbursement, the date on which it was made, the name of the person or entity to whom the money was disbursed and the purpose for the disbursement, including particulars of the mortgage, if any, to which the disbursement relates.
With respect to every payment of interest on money in the authorized trust account, a way of identifying the deposit of deemed trust funds to which the interest relates, the amount of the interest associated with the deposit and the date, if any, on which the interest was paid to the person or entity entitled to it.

Monthly reconciliation statement for trust account

36. (1) Every month, a mortgage administrator shall prepare a reconciliation statement for the authorized trust account and an officer of the mortgage administrator shall review the statement and sign and date it to indicate that he or she certifies that it is accurate.

(2) The reconciliation statement for a month must be prepared, reviewed and signed by the following deadline:

If the mortgage administrator receives a monthly account statement from the financial institution where the account is maintained, 30 days after the mortgage administrator receives the monthly account statement.
In any other case, 30 days after the end of the month.

(3) The reconciliation statement for a month must set out the following information:

The differences, if any, between the records of the mortgage administrator and the records of the applicable financial institution as of the following date:
1. if the mortgage administrator receives a monthly account statement from the financial institution, the date of the monthly account statement, and
2. in any other case, the last day of the month.
The balance in the account that is owing to each person or entity as of the applicable date described in subparagraph 1 i or ii.

Duty to report shortfall in trust account

37. If a mortgage administrator determines that there is a shortfall in the authorized trust account, the mortgage administrator shall immediately notify the Superintendent.

Annual reconciliation statement for trust account

38. (1) A mortgage administrator shall prepare an annual reconciliation statement for the authorized trust account for a fiscal year within 90 days after the end of the year.

(2) The annual reconciliation statement must summarize the contents of each of the required monthly reconciliation statements for the account for the fiscal year.

Other Matters

Duty re concurrent businesses

39. A mortgage administrator that engages in another business concurrently with carrying on the business of administering mortgages shall not allow the other business to jeopardize its integrity, independence or competence when carrying on the business of administering mortgages.

Use of certain information

40. A mortgage administrator shall not use information obtained in the course of carrying on business for any purpose other than that for which the information was obtained unless the mortgage administrator has the written consent of the person or entity who is the subject of the information.

Designation when dwelling is place of business

41. If a mortgage administrator’s principal place of business in Ontario is a place that is used as a dwelling, the mortgage administrator shall designate a room or area of the dwelling as the principal place of business and shall inform the Superintendent of the room or area so designated.

Required addresses

42. (1) A mortgage administrator shall maintain a mailing address in Ontario that is suitable to permit service by registered mail.

(2) A mortgage administrator shall maintain an e-mail address.

Use of forms

43. If a form is approved by the Superintendent for a purpose under the Act, a mortgage administrator shall use the current approved version of the form.

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Mortgage Brokerages, Lenders and Administrators Act, 2006 - Additional Draft Regulations for Consultation

III. Consultation Draft Regulations

2) Mortgage Administrators: Standards Of Practice