NEWMARKET COURT FILE NO.: DC-08-00090895-0000
DATE: 20090522
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1079022 ONTARIO INC. cob as NICOLINI CONSTRUCTION and BRUNO NICOLINI - Plaintiffs (Respondents)
-vs-
MARKET LEADERSHIP INC. and ANTHONY GUIDO – Defendants (Appellants)
BEFORE: THE HON. MR. JUSTICE J.R. McISAAC
COUNSEL: Barry S. Greenberg, for the Plaintiffs (Respondents)
Alfred S. Schorr, for the Defendants (Appellants)
HEARD: March 18, 2009
ENDORSEMENT
ON APPEAL FROM THE JUDGMENT OF DEPUTY JUDGE J. GILLESPIE
DATED JULY 15, 2008
[1] The appellants advance three arguments against the judgment herein.
[2] First, they challenge the finding that Mr. Guido was “carrying on business” as a mortgage broker when he prepared the Professional Marketing Package (“PMP”) for the purpose of obtaining financing in the range of 4.5 to 5.5 million dollars for the 45 unit retirement residence project: see S.1(1) of the Mortgage Brokers Act, R.S.O. 1990, c. M.39 (“the Act”). This definition incorporates the concept of “dealing in mortgages” which, in turn, has been interpreted to include acting between two persons: see 3173763 Canada Inc. v. Armcorp 4-8 Ltd. (1997), 50 C.B.R. (3d) 23 (Ont. Gen.Div) at para. 15. In the result, I find no merit to this ground of appeal.
[3] Second, the appellants allege error in finding that the preparation of the PMP formed an integral step in the process of obtaining mortgage financing for this project. I am satisfied there was ample evidence before the trial judge to justify this conclusion. The fact that she may have misapprehended the evidence when Mr. Guido testified that he was able to arrange two other projects without the placement of mortgage financing is of little moment given the abundance of evidence of his attempts to arrange mortgage financing for this project. I reject this ground of appeal.
[4] Finally, the appellants suggest that it was erroneous on the part of the trial judge to find the appellants disqualified from collecting this $10,000 fee in default of registration as brokers under the Act. They point to the absence of any specific disqualification as exists in other legislation such as the Real Estate and Business Brokers Act, 2002, S.O. 202, c.30, Sched. C, s.9 which states:
No action shall be brought for commission or other remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.[^1]
[5] I have not been persuaded that the trial judge erred in finding the appellants disentitled to collect this fee for this reason. My reading of the Act supports the proposition that it creates an elaborate regulatory scheme to protect the public from incompetent or unscrupulous mortgage brokers. Supervision by way of registration is the “raison d’être” of the legislation. I am satisfied it would be contrary to public policy to permit these appellants to enforce payment of this fee: see Still v. M.N.R. (1997), 154 D.L.R. (4th) 229 (Fed. C.A.). This is not, in any sense, like the technical breach of the registration requirements of the Ontario New Home Warranties Plan as existed in Beer v. Townsgate I Ltd. (1998), 36 O.R. (3d) 136 (C.A.). This ground of appeal also fails.
[6] For all of these reasons, the appeal is dismissed and the award of $10,000 is confirmed. It is agreed the additional award of $700 for GST was made without jurisdiction as it exceeded the monetary limits of the Small Claims Court. Having received counsel’s anticipatory submissions as to costs and given the success achieved, I award the respondents their costs of the appeal in the fixed amount of $5,000 inclusive of GST and disbursements.
McISAAC, J.
DATE: May 22, 2009
[^1]: Although not applicable to this litigation, it is noteworthy that there now exists such a disqualification for mortgage brokers in the absence of registration: see the Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c.29, s.12.