Panel members: Elizabeth Shilton (Vice Chair), Patrick Longhurst, David Short
Parties to hearing: Edward Abraham; Stephen Scharbach (for the Superintendent of Financial Services).
SUBJECT: REVOCATION OF MORTGAGE BROKER LICENCE
On March 26, 2014 the Superintendent of Financial Services issued a Notice of Proposal (NOP) to revoke the mortgage broker licence of the Applicant, Edward Abraham. On April 9, 2014, the Applicant filed a Request of Hearing pursuant to s 21(3) of the Mortgage Brokerages, Lenders and Administrators Act (MBLAA).
The Superintendent alleged a number of grounds in support of the conclusion that the Applicant was no longer suitable to be licensed as a mortgage broker. Specifically, the issues before the Tribunal related to the Applicant’s past conduct and false statements made on licence renewal applications, and whether those allegations afforded reasonable grounds to believe that the Applicant would not conduct business as a mortgage broker in accordance with the law and with honesty and integrity.
Before dealing with the merits of the case, the Tribunal provided reasons as to why two requests for adjournment made by the Applicant were denied. The Tribunal detailed a number of prior delays caused by the Applicant’s assertion that he was in the process of retaining counsel but then failing to do so. The Tribunal noted that there is no automatic right to an adjournment and the decision to grant one is always discretionary and contextual. In this case the Applicant sought an adjournment very close to the scheduled hearing date in order to retain counsel. However the date had been established by agreement months earlier and the Applicant had ample opportunity to make the necessary arrangements. Despite that, the Tribunal had postponed the commencement of the hearing to give the Applicant another opportunity to retain counsel. The Applicant failed to arrange for counsel and his request for a further adjournment was denied. The Tribunal noted that an Applicant who chooses to be represented by counsel must make reasonable and timely efforts to secure representation.
With regard to the allegations against the Applicant, the Tribunal found that the Superintendent had proved the facts on which he relied. Specifically, the Tribunal found that the Applicant had failed to meet his obligations under the Bankruptcy and Insolvency Act (BIA) over a six year period, had been convicted of offences under the BIA, and was still not in compliance with the BIA.
Additionally, as principal broker of a licensed mortgage brokerage, the Applicant had failed to ensure his brokerage complied with the MBLAA by maintaining E&O insurance. Finally, the Tribunal found that the Applicant had made false statements and provided false information on both his 2010 and 2012 applications to renew his mortgage broker licence. In the Tribunal’s view those facts constituted reasonable grounds for the belief that the Applicant was no longer suitable to be licensed as a mortgage broker.
The Tribunal relied on the reasoning in Millennium Mortgage Corp v Ontario (Superintendent Financial Services), 2009 ONFST 6 as to how to balance the competing considerations of protecting the public interest and the consequences of the revocation of a licence for the Applicant. Given the serious consequences to the Applicant of a revocation, the Tribunal suggested that the standard of proof may be higher than the normal civil standard. The Superintendent took the position that the statutory language of the MBLAA suggested a lower standard. The Tribunal declined to decide whether the standard of proof required was higher or lower than the normal civil standard. However, it did hold that the evidence produced by the Superintendent was ‘clear, convincing and cogent’ in line with statements made in Henderson v Ontario (Superintendent Financial Services), 2008 ONFST 7.
The Tribunal found that the Applicant had deliberately flouted his obligations under the BIA and that such misconduct was compounded by the false statements made in connection to his licence renewal application. Evidence produced by the Applicant of strong community involvement did not override the Tribunal’s reasonable belief that the Applicant is no longer suitable to be licensed as a mortgage broker.
As a result, the Tribunal ordered the Superintendent to carry out his proposal to revoke the Applicant’s Mortgage broker licence.
Case referred to:
Henderson v Ontario (Superintendent Financial Services), 2008 ONFST 7 (CanLII)
Millennium Mortgage Corp v Ontario (Superintendent Financial Services), 2009 ONFST 6 (CanLII)
Ochnik v Ontario Securities Commission,  OJ No 1730 (Div Ct).
Ontario (Alcohol and Gaming Commission, Registrar) v 751809 Ontario Inc,  OJ No 1139 (ONCA).
Re Flamboro Downs Holdings Ltd and Teamsters Local 879,  OJ No 4199 (Div Ct)
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