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Professionals - Mortgage Brokers. Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2023) the Divisional Court considered the appellant's argument that, in a professional discipline tribunal hearing [here before Financial Services Tribunal, acting under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the 'MBLAA')] that the standard of proof was higher than the normal civil standard of 'balance of probabilities' (it wasn't):[1] The Appellant appeals from a decision of the Financial Services Tribunal (the “Tribunal”) under the Mortgage Brokerages, Lenders and Administrators Act, 2006. (the “MBLAA”).
[2] The Appellant requested a hearing before the Tribunal after receiving a notice of proposal to revoke her mortgage licence based on a reasonable belief that she was not suitable to be licensed as a mortgage agent. The grounds for this belief were the Appellant’s past conduct, false statements by the Appellant in her application to be licensed on three subsequent renewals and for misleading Financial Services Regulatory Authority of Ontario (“FSRA”) investigators.
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[11] The Appellant submitted that a sliding scale or higher standard should be applied in circumstances such as this. Counsel referred the panel to Australian authorities to that effect and to a strongly worded minority opinion by the Chief Justice of the Supreme Court of New Zealand that a higher standard should be applied in circumstances where serious allegations and penalties are engaged: Z v. Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1.
[12] I disagree.
[13] It is well settled law in Canada that there is one civil standard of proof at common law, which is proof on the balance of probabilities, notwithstanding the seriousness of the allegations or the consequences: F.H. v. McDougall, 2008 SCC 53 at para. 40 [2008] 3 SCR 41 (CanLII). This decision is binding on us as it was on the tribunal below.
[14] The Tribunal correctly applied the civil standard of proof to the hearing evidence and carefully set out its reasons for rejecting the Appellant’s evidence. It did not commit any legal error in its application of the standard of proof. Further, the prosecution’s case was established by clear and cogent evidence, most of which was not contested. The issue before the Tribunal was in respect of the appellant’s explanations for the impugned conduct, explanations which were rejected by the tribunal for reasons that are discussed below. I would not give effect to this ground of appeal. . Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2023) the Divisional Court considered the appellate standard of proof regarding a professional penalty, here that of the revocation of a 'mortgage agent' license under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the 'MBLAA'):[7] Where a penalty imposed by a regulatory tribunal is reviewed on appeal, the reviewing court will consider whether the penalty was imposed with reference to the facts of the case and prior penalties imposed for similar infractions or in similar circumstances to consider whether the penalty imposed in the case before it was “clearly unfit” or a substantial departure from the cases before the tribunal: see College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56; Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 at para. 18.
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[16] The Tribunal expressly concluded that a lesser penalty would not be appropriate given the Appellant’s repeated instances of dishonesty. It found that supervision is not an appropriate penalty where a licensee is dishonest, does not accept accountability, and shifts responsibility for their conduct to others.
[17] The Tribunal also considered the regulatory context including FSRA’s statutory objectives, which include contributing to public confidence in the sectors it regulates, deterring deceptive or fraudulent conduct, practices, and activities, promoting high standards of business conduct, and protecting the rights and interests of consumers. The Tribunal found that no lesser penalty was appropriate given its findings of fact and the pattern of dishonesty on the part of the Appellant.
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