Justin Edwards v. Superintendent of Financial Services
FST Decision No.: M0332-2008-1
Date of Decision: February 20, 2009
Panel Members: Colin McNairn, Anne Corbett, Heather Gavin
Parties to hearing: Justin Edwards
The Superintendent of Financial Services
Subject: Refusal of Application for Mortgage Agent Licence
The Superintendent issued a Notice of Proposal to Refuse the application of Edwards for a mortgage agent licence under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the “Act”).
The Tribunal directed the Superintendent to issue a mortgage agent licence to Edwards.
On June 20, 2008, Edwards applied for a mortgage agent licence under the Act. The basis for the Superintendent’s proposed refusal was Edwards’ past conduct (criminal conviction) and his false statement about convictions in his application.
A criminal record check disclosed that Edwards was found guilty of possession of marihuana for the purpose of trafficking on December 6, 2005. Edwards was given a conditional sentence, commonly known as “house arrest”, of 5 months upon pleading guilty. The sentence reflected a plea bargain between Edwards and the Crown.
The Tribunal held that it must look at the matter afresh, as one of first impression, and come to its own conclusion, based on the evidence before it, as to the applicant’s suitability in light of his or her past conduct and any false information he or she has provided in making the application. The Tribunal need not show any deference to the Superintendent’s opinion.
After hearing all the evidence, and in particular the testimony of Edwards, the Tribunal concluded that neither Edwards’ criminal conviction nor his false statement about convictions in his application afforded reasonable grounds for a belief that he was not suitable to be licensed as a mortgage agent.
The Tribunal found that Edwards’ explanation for the false statement about convictions was plausible. Edwards testified that he thought his conviction need not be disclosed because he had applied for a pardon. The Tribunal did not receive any evidence that would persuade it that the false statement in the licence application was other than an innocent misrepresentation.
Edwards’ explanation for the conviction of the offence of possession of marihuana for the purpose of trafficking was that he was not knowingly in possession of marihuana, and was inadvertently caught up in an aborted drug deal. The Tribunal found that Edwards’ explanation was plausible.
The Tribunal concluded that the sentence that Edwards received for his conviction was not severe, and must be taken to reflect the fact that the court did not treat Edwards’ conduct as very serious.
The Tribunal compared the circumstances in Edwards’ case to those in the decision of Glaude v. Superintendent of Financial Services (FST Decision No. M0325-2008-1). Glaude was a case in which the Tribunal ordered the Superintendent to carry out a proposal to deny an application for a mortgage agent licence by an applicant who, like Edwards, had been convicted of the offence of possession of marihuana for the purpose of trafficking and had provided false information to the Superintendent about that conviction. The Tribunal said that the Glaude case can be distinguished from Edwards’ case in a number of important respects.
Cases referred to:
Henderson v. Superintendent of Financial Services (FST Decision No. M0319-2008-1)
Alves v. Superintendent of Financial Services (FST Decision No. M0315-2008-1)
Glaude v. Superintendent of Financial Services (FST Decision No. M0325-2008-1)
This summary is offered as a public service and should not be relied upon as legal advice. Many factors unknown to us may affect the applicability of any statement or comment made in the summary to your particular circumstances.