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Real Property - Mortgage Brokerages, Lenders and Administrators Act, 2006. Gerstel v. FSRA
In Gerstel v. FSRA (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against the "Financial Service Tribunal’s March 31, 2025 decision, which ordered the respondent, Financial Services Regulatory Authority (FSRA) to carry out the terms of a notice of proposal" which "proposed to refuse to renew the applicants’ licenses and to impose administrative penalties".
Here the court considers the lack of an appeal route for some MBLAA issues:[15] As stated above, there is no dispute that the Act [SS: Mortgage Brokerages, Lenders and Administrators Act, 2006 (MBLAA)] does not grant a right of appeal in relation to decisions concerning administrative penalties. Pursuant to s. 39(5) of the Act, the Tribunal is authorized to make orders at a hearing in response to a notice of proposal to impose an administrative penalty. However, there is no right of appeal from that decision. .... . Gerstel v. FSRA
In Gerstel v. FSRA (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against the "Financial Service Tribunal’s March 31, 2025 decision, which ordered the respondent, Financial Services Regulatory Authority (FSRA) to carry out the terms of a notice of proposal" which "proposed to refuse to renew the applicants’ licenses and to impose administrative penalties".
The court considered whether to exercise it's discretion "to judicially review the Tribunal’s decision with respect to the applicants’ licences when the applicants had a full right of appeal from the Tribunal’s decision on that issue", and where the "applicants initially filed a notice of appeal but failed to perfect their appeal":Should the court exercise its discretion to judicially review the Tribunal’s decision with respect to the applicants’ licences?
[11] Judicial review is a discretionary remedy. In deciding whether to exercise its discretion, the court is required to determine the appropriateness of judicial review in the circumstances, including by considering whether an adequate alternative remedy exists: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, at paras. 51-56, Strickland v. Canada (AG), 2015 SCC 37, at para. 40.
[12] In this case, the legislature has provided for a full right of appeal from decisions of the Tribunal on licensing issues. Subsection 21(1) of the Act [SS: Mortgage Brokerages, Lenders and Administrators Act, 2006] authorizes the respondent to make proposals related to licensing under the Act, such as a proposal to refuse to issue or renew a licence. Subsection 21(3) of the Act provides a right to a hearing before the Tribunal with respect to such a notice and s. 21(4) authorizes the Tribunal to make orders resulting from the hearing. Subsection 21(5) provides a full right of appeal to this court from a Tribunal order under s. 21(4).
[13] There can be no doubt that a full right of appeal to the same court from which the applicants seek judicial review is an adequate alternative remedy. Indeed, an appeal would be a preferable avenue of review for the unsuccessful party at the Tribunal. The correctness standard of review for an appeal is stricter than the reasonableness standard that applies on judicial review. This is also not a situation like in Yatar where the right of appeal is limited to questions of law, leaving questions of fact or mixed fact and law to be addressed by judicial review. By providing a full right of appeal from the Tribunal’s orders related to licensing (as distinct from, for example, orders related to administrative penalties), the legislature intended for review of those orders to occur by appeal. To permit judicial review on the same issues for which the legislature has provided a full right of appeal would fail to respect legislative intent: Caledon Residences Inc. v. Ontario Land Tribunal, 2025 ONSC 6546, at para. 21.
[14] In this case, the applicants initially filed a notice of appeal from the Tribunal’s decision but failed to perfect their appeal. The court granted the applicants three extensions of time, with the third date being peremptory to the applicants. Shore J. denied the applicants’ request for a fourth extension. The appeal therefore was not permitted to proceed. The applicants did not challenge Shore J.’s decision. The applicants were required to challenge the Tribunal’s licensing decision by appeal. Their failure to do so does not allow them to instead challenge it by judicial review. I therefore would dismiss this aspect of the application. . Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer)
In Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer) (Div Court, 2024) the Divisional Court considered the role of the Mortgage Brokerages, Lenders and Administrators Act, 2006 (MBLAA):[10] The applicants are licensed under the MBLAA. FSRA regulates the non-securities, financial services sectors in Ontario, including mortgage brokering. FSRA administers the MBLAA under the FSRA Act. In its regulatory activities, FSRA is guided by its statutory objects, which are set out in the FSRA Act and are reproduced at paragraph 58 below.
[11] In Ontario, mortgage brokering is governed by the MBLAA. The MBLAA provides a comprehensive licensing framework for mortgage brokerages, mortgage brokers, mortgage agents, and mortgage administrators. These licensees are required to comply with prescribed standards of practice, including disclosure, suitability and conflict of interest requirements.
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[13] FSRA may take regulatory action when individuals or entities contravene the MBLAA. Generally, before FSRA can impose licensing sanctions, general administrative penalties or compliance orders, FSRA must issue a notice of proposal (MBLAA, ss. 21, 35, 39). This triggers the right to a hearing before the FST, an independent tribunal. The FST holds a de novo hearing with no deference to FSRA’s NOP. The FST then issues an order which may direct FSRA to carry out the NOP with or without changes or substitute the FST’s opinion for that of FSRA. . 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.
....
[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.
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