REGARDING the Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c.29 (the “Act”), in particular sections 2 and 35;
AND REGARDING Darcy Schanck
Order to Cease and Desist Unlicensed Activity
TO: Darcy Schanck
On January 9, 2017, the Superintendent of Financial Services (the “Superintendent”) issued an Interim Compliance Order to Cease and Desist Unlicensed Activity (the “Interim Order”) against Darcy Schanck (“Mr. Schanck”) and a Notice of Proposal to Impose Compliance Order to Cease and Desist Unlicensed Activity against Mr. Schanck (the Notice”) pursuant to subsection 35(3) of the Act.
Service of the Interim Order and Notice by registered and regular mail was ineffective as Mr. Schanck did not reside at the last address on record with the Financial Services Commission of Ontario (“FSCO”). Efforts to determine Mr. Schanck’s most current address yielded only the address currently on record with FSCO.
Accordingly, on January 24, 2017 the Superintendent served the Interim Order and the Notice on Mr. Schanck by email, pursuant to section 7 of Ontario Regulation 190/08. There was no indication that Mr. Schanck did not receive the email as there was no delivery error message. Mr. Schanck had 15 days after service of the Notice to request a hearing before the Financial Services Tribunal (the “Tribunal”) in accordance with subsections 35(3) and 35(4) of the Act.
The Registrar of the Tribunal has confirmed that no request for a hearing has been received from Mr. Schanck or anyone on his behalf, in respect of the proposal to impose a compliance order to cease and desist unlicensed activity.
Subsection 35(6) of the Act provides that the Superintendent may carry out the proposal to impose a compliance order when no hearing has been requested.
IT IS ORDERED THAT that pursuant to sections 2 and 35 of the Act, and for the reasons described above, Darcy Schanck:
- Immediately cease soliciting persons or entities to borrow or lend money on the security of real property in Ontario, or holding itself out as doing so;
- Immediately cease providing information about a prospective borrower to a prospective mortgage lender or holding itself out as doing so, in respect of real property in Ontario;
- Immediately cease negotiating or arranging a mortgage in respect of real property in Ontario on behalf of another person or entity, or attempting or holding itself out as doing so;
- Immediately cease accepting any fees or funds in connection with the solicitation, negotiation, or arrangement of a mortgage in respect of real property in Ontario;
- Immediately cease using a description that might reasonably be expected to lead to the belief that it is a licensed mortgage agent in Ontario; and
- Immediately cease advertising as a mortgage agent in Ontario.
TAKE NOTICE THAT pursuant to subsections 48(4) and 49(1) and (2) of the Act, every person who fails to comply with an order made under this Act is guilty of an offence and every individual convicted of an offence under the Act is liable to a fine of not more than $100,000.00 or imprisonment for a term of not more than a year or both a fine and imprisonment. Every corporation convicted of an offence under the Act is liable to a fine of not more than $200,000.00.
Pursuant to subsection 48(5) of the Act, every director or officer of a corporation that commits an offence under this Act who directed, authorized, assented to, acquiesced in or participated in the commission of the offence, or who failed to take reasonable care to prevent the corporation from committing the offence, is guilty of an offence, whether or not the corporation is prosecuted or convicted.
Subsection 48(6) of the Act provides that every partner of a partnership and every individual who is a member of the directing body of an entity, other than a person or partnership, who directed, authorized, assented to, acquiesced in or participated in the commission of an act or omission by the partnership or entity which, if committed by a person, would be an offence under the Act, is guilty of an offence.
Si vous désirez recevoir cet ordre en français, veuillez envoyer votre demande immédiatement à: Adjointe, audiences, Greffe, Commission des services financiers de l’Ontario, 5160 rue Yonge, 14em, Toronto ON M2N 6L9.
DATED at Toronto, February 24, 2017.
original signed by “Brian Mills”
Superintendent of Financial Services
Financial Services Commission of Ontario