COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Pugliese v. Clark,

 

2008 BCCA 130

Date: 20080327

Docket: CA034984

Between:

Eugenio Pugliese

Appellant

(Petitioner)

And

W. Alan Clark in his capacity as Registrar of Mortgage Brokers,

British Columbia (Financial Services Tribunal) and

The Attorney General of British Columbia

Respondents

(Respondents)

Before:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson

 

C. Harvey, Q.C.

C. Watson

Counsel for the Appellant

V. Jackson

J. Penner

Counsel for the Respondents

W. Alan Clark in his capacity as Registrar of Mortgage Brokers and the Attorney General of British Columbia

J.J.L. Hunter, Q.C.

Counsel for the Respondent

British Columbia

(Financial Services Tribunal)

Place and Date of Hearing:

Vancouver, British Columbia

February 21, 2008

Place and Date of Judgment:

Vancouver, British Columbia

March 27, 2008

 

Written Reasons by:

The Honourable Madam Justice Prowse

Concurred in by:

The Honourable Mr. Justice Hall

Concurring Reasons by:

The Honourable Mr. Justice Chiasson  (Page 21, para. 40.)

Reasons for Judgment of the Honourable Madam Justice Prowse:

NATURE OF APPEAL

[1]                Mr. Pugliese is appealing from the order of a chambers judge, made March 21, 2007, dismissing his petition for judicial review of the decision of the Financial Services Tribunal (the “FST”) in which he sought a declaration that the Registrar of Mortgage Brokers (the “Registrar”) did not have jurisdiction under s. 4 of the Mortgage Brokers Act, R.S.B.C. 1996, c. 313 (the “Act”) to refuse to consider another application by Mr. Pugliese for registration as a mortgage broker until 2014.  The only term of the order which is under appeal states:

1.         the Petitioner’s application for a declaration that the Registrar did not have jurisdiction to declare he will not consider an application for registration until 2014 be dismissed;

[2]                The reasons for judgment of the chambers judge may be found at [2007] B.C.J. No. 594 (QL), 2007 BCSC 391. 

ISSUES ON APPEAL

[3]                The principal issue on appeal is whether the chambers judge erred in upholding the FST’s decision that the Registrar had jurisdiction under s. 4 of the Act, when rejecting Mr. Pugliese’s application for registration as a mortgage broker, to state that he would not consider another application by Mr. Pugliese until 2014.  The challenge is not to the length of time stipulated before the Registrar would consider a further application by Mr. Pugliese for registration, but to the jurisdiction of the Registrar to stipulate any period of time before he would consider a future application. 

[4]                A second issue raised by Mr. Pugliese in his factum is whether the chambers judge applied the appropriate standard of review to the jurisdictional issue.

BACKGROUND

[5]                In order to place the jurisdictional issue in context, it is useful to set out the history giving rise to the order under appeal.  That history is summarized at paras. 1-3 of the reasons for judgment of the chambers judge:

On January 3, 2001, Eugenio Pugliese was convicted of conspiracy to traffic in cocaine and possession of cocaine for the purpose of trafficking.  He was sentenced to five years imprisonment.  He was incarcerated on September 22, 2004 when all his avenues of appeal were exhausted.  He was released on accelerated day parole in May 2005 after serving one-sixth of his sentence.  He is presently on full parole.  His parole expires on July 11, 2009.

On November 14, 2005 he applied, pursuant to the provisions of the Mortgage Brokers Act, R.S.B.C. 1996, c. 313 (the “Act”), for registration as a sub-mortgage broker.  He disclosed his conviction in the application.  In written reasons dated April 19, 2006, the Registrar of Mortgage Brokers (the “Registrar”) refused to register Mr. Pugliese.  He made the following findings:

1.  Mr. Pugliese is not eligible for registration under the Mortgage Brokers Act as he is unsuitable and his proposed registration is objectionable;

2.  The Registrar will not consider an application for registration under the Mortgage Brokers Act until five years after completion of his sentence, which would be July 2014; and

3.  The Registrar will not consider an application at that time unless Mr. Pugliese can clearly demonstrate he has rehabilitated himself and re-established his suitability.

Mr. Pugliese appealed the Registrar’s decision to the Financial Services Tribunal (the “FST”).  On September 5, 2006 the FST confirmed the Registrar’s decision.  In this application for judicial review, Mr. Pugliese does not challenge the rejection of his application.  Rather, he seeks the following declarations:

1.  That the Registrar does not have the jurisdiction to refuse to consider a further application until July 2014; and

2.  That the Registrar does not have the jurisdiction to refuse to consider a further application unless Mr. Pugliese can “clearly demonstrate he has rehabilitated himself and re-established his suitability”.

DECISION OF THE CHAMBERS JUDGE

[6]                The chambers judge dismissed Mr. Pugliese’s request for the first declaration; hence this appeal.  He made the second declaration requested by Mr. Pugliese and there is no appeal from that aspect of his order.

[7]                With respect to the standard of review, the chambers judge stated that, in his view, the “interpretation and application” of s. 4 of the Act was a question of mixed law and fact involving the exercise of the Registrar’s discretion.  In the result, he concluded that the standard of review of decisions “within the Registrar’s jurisdiction” was one of patent unreasonableness, but that the applicable standard of review “of decisions concerning his jurisdiction is correctness.”  He then went on to consider both the question of whether the Registrar had the jurisdiction to make the impugned orders and the exercise of his discretion in that regard.  In the result, he concluded that the Registrar did have jurisdiction to refuse to consider another application by Mr. Pugliese for registration until 2014.

DISCUSSION

            (a)  The Act

[8]                The question of whether the Registrar has jurisdiction to make the order under appeal turns on the interpretation of s. 4 of the Act,  which provides:

4.  The registrar

(a)        must grant registration or renewal of registration to an applicant if in the opinion of the registrar the applicant is suitable for registration and the proposed registration is not objectionable,

(b)        must not refuse to grant or refuse to renew registration without giving the applicant an opportunity to be heard, and

(c)        may, in the registrar’s discretion, attach to the registration or renewal of registration terms, conditions or restrictions the registrar considers necessary. 

[9]                Specific reference to the powers of the Registrar is found in s. 2 of the Act, which provides:

2.         The registrar has the powers, and must discharge the duties conferred or imposed on the registrar by this Act.

(b)  Standard of Review

[10]            At the outset of the hearing, counsel for Mr. Pugliese stated that he was satisfied that the chambers judge had applied the appropriate standard of review to the question of the Registrar’s jurisdiction, namely, that of correctness.  Counsel for the FST and for the Registrar agreed that the chambers judge had applied a standard of correctness to the jurisdictional issue, but both argued that, even assuming the standard was correctness, a degree of deference should have been extended to the FST and, by extension, to the Registrar in the interpretation of s. 4.  In any event, the respondents submit that Mr. Pugliese can hardly complain about the standard of review applied, since it is the least deferential of the three standards of correctness, reasonableness simpliciter and patent unreasonableness.

[11]            In his reasons, the chambers judge did not clearly delineate between the standard of review he applied to the decision of the FST and the standard of review to be applied by the FST to the decision of the Registrar.  It appears that he found that the single standard of review relating to the interpretation of the Registrar’s jurisdiction under s. 4 of the Act was one of correctness.  In that regard, he stated at para. 25 of his decision:

A consideration of the legislation, the expertise of the decision-maker, the purposes of the Act as a whole and the nature of the problem, all militate in favour of maximum deference.  I find that the standard of review of decisions within the Registrar’s jurisdiction is that of patent unreasonableness.  The applicable standard of review of decisions concerning his jurisdiction is correctness.

[Emphasis added.]

[12]            In my view, it is implicit in the reasons of the trial judge that he viewed the correctness standard as applicable both to the decision of the Registrar and to the decision of the FST in relation to the issue of the interpretation of s. 4 of the Act.  

[13]            At the outset of submissions on this issue, counsel for the Registrar advised the Court that, as a result of an amendment to the Financial Institutions Act, R.S.B.C. 1996, c. 141 (the “FIA”) on November 23, 2007, s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”) had been incorporated into the FIA.  She stated that the result of this amendment is that the standard of review with respect to decisions of the FST on a finding of fact or law is one of patent unreasonableness.  Counsel did not suggest that this provision should be applied retroactively so as to affect the decision of the chambers judge in this case.  I note, however, that counsel for Mr. Pugliese disagreed that s. 58 dictated a standard of review of patent unreasonableness in relation to the jurisdictional issue here.

[14]            As will become apparent, I am satisfied that even on an application of the most stringent standard of review, that of correctness, Mr. Pugliese cannot succeed on this appeal.  For that reason, and given that s. 58 of the ATA now governs the standard of review to be applied to decisions of the FST, I do not find it necessary to engage in a full analysis of this issue.  (For the same reasons, I do not find it necessary to comment on the recent decision of Dunsmuir v. New Brunswick, 2008 SCC 9, which was released subsequent to the hearing of this appeal.)  Ultimately, I am satisfied that it was within the jurisdiction of the Registrar to conclude that, as a result of his finding that Mr. Pugliese would continue to be both unsuitable and objectionable for registration while on parole for a very serious offence, he could refuse to consider another application by Mr. Pugliese for registration for a period of time.  The question of whether he erred in determining that the requisite period was until July 2014 is a separate question which does not go to the jurisdiction of the Registrar, but to the exercise of the Registrar’s discretion.  That question is in not in issue in this appeal and I do not propose to comment on it further. 

[15]            I turn now to an analysis of the jurisdictional issue.

(c)  Jurisdiction

[16]            Counsel for Mr. Pugliese submits that it is not open to the Registrar to attach conditions to a refusal to grant an applicant registration under s. 4.  He emphasizes that s. 4(c) of the Act expressly permits the Registrar to attach terms, conditions or restrictions he considers necessary “to the registration or renewal of registration” and that there is no such express power on a refusal to grant registration.  He also notes that, under s. 4(b), the Registrar cannot refuse to grant or renew registration without providing the applicant an opportunity to be heard.  He submits that the effect of the Registrar’s decision in this case is to reject future applications by Mr. Pugliese for registration prior to July 2014 without giving him an opportunity to be heard.  He also submits that where the effect of the restriction is to seriously interfere with an individual’s ability to earn a livelihood, the enabling legislation should be strictly construed. 

[17]            In reply to concerns raised by the respondents, counsel for Mr. Pugliese submits that there is no evidence that the Registrar is, or has been, faced with serial applications for registration by applicants who have been refused registration such that it can be seen to be practically necessary to find such a power in the Registrar by implication.  Absent any evidence that the registration process is being abused, counsel for Mr. Pugliese submits that there is no basis for reading in a power to attach conditions, including a period of ineligibility to apply or be considered, to a refusal to grant registration. 

[18]            Finally, counsel for Mr. Pugliese submits that, in concluding he had jurisdiction to impose conditions on his refusal to grant registration, the Registrar erred in relying on a guideline published in the Licensee Practice Manual, 3d ed., (Vancouver: Real Estate Council of British Columbia, 2003) with respect to applications for registration under the Real Estate Services Act, S.B.C. 2004, c. 42, and that the FST and the chambers judge similarly erred in upholding his decision.

[19]            In support of his submission on the question of statutory interpretation, counsel for Mr. Pugliese places particular reliance on the decision of the Supreme Court of Canada in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140. 

[20]            In reply, the respondents submit that the Registrar’s power to attach conditions effectively precluding an applicant from having a further application considered for a stated period of time is “practically necessary” and arises by necessary implication when s. 4 of the Act is read in a purposeful manner in the context of the Act as a whole.  They submit that such a jurisdiction is necessary to prevent abuses of the licensing process and to permit the Registrar to effectively carry out his licensing role having regard to the protection of the public interest.  The respondents submit that it is untenable to interpret s. 4 of the Act in the restrictive fashion suggested by counsel for Mr. Pugliese which, if carried to its logical conclusion, would permit an applicant who had been refused registration to re-apply on a daily, weekly or monthly basis, and to demand a hearing before each application could be refused.  The respondents say this is particularly so in circumstances, as here, where the reason for refusal (the fact that Mr. Pugliese was under parole for a serious offence of moral turpitude) was of a continuing immutable nature.  The respondents further submit that the duty of the Registrar to act in the public interest must be given precedence over considerations of the applicant’s rehabilitation and opportunity to work in the industry. 

[21]            In his decision, the Registrar found Mr. Pugliese to be both “unsuitable” and “objectionable” within the meaning of s. 4 of the Act.  This conclusion is found at p. 4 of his decision where he states:

After reviewing all of the circumstances, I am of the opinion that Pugliese is personally unsuitable to be registered as a submortgage broker.  It is my belief that being under parole after conviction for a serious offence has a negative effect on his personal and business reputation that results in being unsuitable to be registered.  In addition, it is my belief that his proposed registration is objectionable because to register Pugliese would negatively impact the public and industry confidence in the financial services sector. 

[22]            The Registrar then asked himself the question “When then would Pugliese be eligible for registration?”  In that regard, he relied on guidelines in the Licensee Practice Manual which provide that a person convicted of a “white collar crime” (which the Registrar found included Mr. Pugliese’s offence) a person would not be considered for registration until at least five years from the date of completion of sentence, parole and/or probation.  The Registrar went on to hold (at p. 5):

As a result, I conclude that the confidence in the financial services sector and the reputation of the many honest ethical mortgage broker registrants can only be preserved by not allowing Pugliese to be registered until he has re-established his suitability and his registration is not objectionable.  This can only be done with the passage of time.  Consistent with the Financial Services Tribunal, Thompson v. the Superintendent of Real Estate, I find that:

Pugliese is not eligible for registration under the Mortgage Broker Act as he is unsuitable and his proposed registration is objectionable;

The Registrar will not consider an application for registration under the Mortgage Broker Act until five years after completion of his sentence, which would be July 2014; and ...

[23]            It is apparent from his reasons that the Registrar assumed he had jurisdiction to make the latter order, despite submissions to the contrary by Mr. Pugliese.  The Registrar found support for this conclusion in the similar educational requirements for licensing in the real estate industry (to which the guidelines relate) and the mortgage broker industry, and his finding that the “close relationship between mortgage brokers and the real estate industry is such that it would not be appropriate to have a different entry threshold for what is basically the same industry”. 

[24]            Mr. Pugliese appealed to the FST pursuant to s. 9(1) of the Act.  In addressing the jurisdiction of the Registrar to refuse to consider a further application by Mr. Pugliese for registration for a stated period of time, the FST referred to other decisions in which such a condition had been imposed and concluded that it was open for the Registrar to do so where the circumstances leading to the imposition of the restriction could only be addressed by the passage of time.  Thus where, as here, the Registrar found that the fact of Mr. Pugliese being under parole was a critical factor making him “unsuitable” and “objectionable” as a registrant, it was obvious that this factor would not change until his parole ended.  Assuming there was a valid basis for finding Mr. Pugliese “unsuitable” and “objectionable” (and no issue is taken with that finding on this appeal), then it is apparent that Mr. Pugliese could not hope to succeed on a future application until that period, at least, had expired. 

[25]            The FST appears to have regarded the Registrar’s power to make such an order as one flowing both from the discretion given to him under s. 4(a) of the Act, and as a matter of implicit jurisdiction.  This is apparent from the following extract from p. 9 of its decision:

In the FST decision Thomson v. The Superintendent of Real Estate [2005] FST No. 05-011 at Page 5, the FST determined that a suspension, in that case, may not be lifted until at least five years from the date of the completion of a sentence, parole and/or probation and that the decision of the Superintendent, in that case, fit within the regulator’s discretionary powers.  Clearly, in the exercise of his discretion in the case under Appeal, the Registrar could determine a time frame during which an applicant may not bring an application for registration as a sub-mortgage broker.  This discretion fits within section 4 of the Act as well as the Guidelines for the mortgage broker [should be real estate] industry in British Columbia referred to as a “good common sense document” by the Registrar in terms of assessing such things as suitability, objectionable characteristics and, in my view, time limits.

The Registrar has implicit jurisdiction to make those determinations provided that the determinations in the end are clear and unequivocal and do not offend a legal principle or rule of law.  In fact, to find otherwise could lead to uncertainty in the application process or to frivolous or repetitive applications by the same applicant. 

[Emphasis added.]

[26]            As earlier stated, the chambers judge also found it was within the Registrar’s jurisdiction to determine the period of time during which Mr. Pugliese’s registration would remain “unsuitable” or “objectionable”.  In his view, “[a]n opinion on whether an applicant is suitable and the proposed registration objectionable includes an opinion as to how long the applicant will remain unsuitable and the registration objectionable.” (Para. 26.)  He went on to conclude that the period of objectionability (until 2014) was not patently unreasonable, a determination that is not the subject of this appeal.

[27]            The question of whether the Registrar had jurisdiction to make an order refusing to consider an application by Mr. Pugliese for a stated period is essentially one of statutory interpretation.  In that regard, the Supreme Court of Canada in numerous decisions (set forth in ATCO at para. 37) has adopted the approach to statutory interpretation set forth by E.A. Driedger, Construction of Statutes, (2nd ed. 1983), at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 

[28]            The application of this approach in the context of a jurisdictional issue in the administrative law context was addressed in both the majority and dissenting judgments in ATCO.  There, the question concerned the jurisdiction of the Alberta Energy and Utilities Board to allocate a portion of the net gain on the sale of a utility asset to the rate-paying customers.  The applicable standard of review in determining that question was determined by both the majority and dissenting judgments to be one of correctness.  Although the facts of that case were considerably different from those here, the description of the source and nature of the powers of administrative tribunals is instructive.  In that regard, Mr. Justice Bastarache, speaking for the majority, stated (at paras. 35 and 38):

Administrative tribunals or agencies are statutory creations: they cannot exceed the powers that were granted to them by their enabling statute; they must “adhere to the confines of their statutory authority or ‘jurisdiction’ [; and t]hey cannot trespass in areas where the legislature has not assigned them authority”: Mullan, at pp. 9-10 (see also S. Blake, Administrative Law in Canada (3rd ed. 2001), at pp. 183-84).

...

But more specifically in the area of administrative law, tribunals and boards obtain their jurisdiction over matters from two sources:  (1) express grants of jurisdiction under various statutes (explicit powers); and (2) the common law, by application of the doctrine of jurisdiction by necessary implication (implicit powers) ...

[29]            The nature of implicit powers in the administrative law context was elaborated upon by Chief Justice McLachlin in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 at paras. 70-71:

It is well established that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate:  Halsbury’s Laws of England (4th ed. 1995), vol. 44(1), at para. 1335. In other words, the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions:  Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722.

Consequently, the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant the remedy sought.  Such implied powers are found only where they are required as a matter of practical necessity for the court or tribunal to accomplish its purpose: National Energy Board Act (Can.) (Re), [1986] 3 F.C. 275 (C.A.).  While these powers need not be absolutely necessary for the court or tribunal to realize the objects of its statute, they must be necessary to effectively and efficiently carry out its purpose:  Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Bell Canada, supra; Macaulay and Sprague, supra, [Practice and Procedure Before Administrative Tribunals (loose-leaf)] vol. 4, at p. 29-2 ...

[Emphasis added.]

[30]            In this case, the parties agree that there is no explicit, or express, power in the Act enabling the Registrar to make the order under appeal and that it is necessary for the Court to go on to consider whether the power is implicit, in the sense of being “practically necessary”, to enable the Registrar to effectively and efficiently carry out his legislative role.

[31]            In making that determination, it is useful to have regard to the purpose of the regulatory scheme and the nature of the Registrar’s role within that scheme as described by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.  There, after reviewing the overall scope of the Act (at paras. 45-48), the court stated (at para. 49):

The regulatory scheme governing mortgage brokers provides a general framework to ensure the efficient operation of the mortgage marketplace.  The Registrar must balance a myriad of competing interests, ensuring that the public has access to capital through mortgage financing while at the same time instilling public confidence in the system by determining who is “suitable” and whose proposed registration as a broker is “not objectionable”.  All of the powers or tools conferred by the Act on the Registrar are necessary to undertake this delicate balancing.  Even though to some degree the provisions of the Act serve to protect the interest of investors, the overall scheme of the Act mandates that the Registrar’s duty of care is not owed to investors exclusively but to the public as a whole.

[Emphasis added.]

[32]            Similarly, while the Registrar undoubtedly has a duty to act fairly in relation to applicants for registration under the Act, it is apparent that the principal object or purpose of the licensing provisions under the Act is to protect the public interest by ensuring that those who are registered as mortgage or submortgage brokers are “in the opinion of the Registrar” both “suitable” and “unobjectionable”.  Thus, while Mr. Pugliese’s arguments, emphasizing the need to recognize an applicant’s capacity for rehabilitation and the importance of employment, cannot be gainsaid, these considerations cannot prevail over the overriding duty of the Registrar to protect the public interest and the integrity of the industry.  In my view, Mr. Pugliese’s arguments in this regard do not cut to the heart of the question of whether it is practically necessary in the public interest that the Registrar have the implicit power to impose time limits on his consideration of further applications for registration by an applicant who has been found “unsuitable” and/or “objectionable” in circumstances such as these.  

[33]            Counsel for Mr. Pugliese submits that there is no evidence that the Registrar has been, or will be, faced with repeat or abusive applications by individuals who have been refused registration and that, in the absence of such evidence, there was no foundation for a finding that the Registrar had the power to refuse to consider applications by Mr. Pugliese for a stated period of time.  He relies on the majority decision in ATCO in support of the submission that such evidence is necessary.  In my view, however, the circumstances in ATCO were so different from those here that the decision is of little assistance on this point. 

[34]            In ATCO, the majority rejected the argument that because the Board had the express power to approve or refuse to approve the sale of utility assets, it had the power to allocate the proceeds of the sale as a matter of practical necessity.  The majority found that there was neither an express nor an implied power in the Board to make such an order.  In the context of describing the reasons for the express statutory requirement that the sale of an asset by the utility be approved by the Board, the majority opined that evidence was necessary “in order to impute jurisdiction to a regulatory body [the Board] to allocate proceeds of a sale” to show that such a power was a practical necessity for the body to carry out its legislative purpose.  I do not understand that passage from the majority’s reasons to stand for the general proposition that in every case where a party alleges that an administrative tribunal has an implied power, the party asserting the power must call evidence that the power is practically necessary in order to succeed.  In many cases, it will follow from an application of the usual rules of statutory interpretation that such an implied power exists.  (It is noteworthy that, in ATCO, the majority found that there were other powers available to the Board within its jurisdiction to protect the public interest in relation to the proposed sale of a utility, without recourse to an implied power to allocate the proceeds of sale.) 

[35]            In my view, the question of whether there is a practical necessity for the Registrar to be able to effectively control the licensing process by precluding repeat applications for registration is not one requiring evidence of repeated abuses in order to succeed.  It cannot be doubted that repeated applications for registration by the same applicant where the condition of unsuitability or objectionability (assuming it to be valid) is one which, by its very nature, is immutable for a period of time, would be abusive of the system of registration laid out under the Act.  Under s. 4(b) of the Act, the Registrar cannot refuse to grant registration without giving the applicant an opportunity to be heard.  If the Registrar had no power to prescribe a time during which he would not reconsider an application, he would be bound to provide a form of hearing even in circumstances where the very ground of unsuitability or objectionability had been determined by him in a prior hearing, and in other circumstances which are clearly abusive of the process.  In my view, this would be contrary to the public interest in an efficient and orderly determination of suitability to practise as a broker.  In fact, I am inclined to the view expressed by counsel for the FST that the impugned power exists to protect against any abuse of the licensing process and is not dependent upon the existence, or proof of, systematic abuse of the system.

[36]            Further, I disagree with counsel for Mr. Pugliese that the argument in favour of such a power is simply one of convenience, rather than one of practical necessity.  Rather, I am satisfied that the power is essential to enable the Registrar to carry out his duties in an effective and efficient manner in accordance with his licensing role.  As stated by Mr. Justice Gonthier (speaking for the court) in Bell Canada v. Canada (Canadian Radio-Television & Communications Commission), [1989] 1 S.C.R. 1722, in a somewhat different context (at p. 1756):  “Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technical interpretations of enabling statutes.”  If the Registrar oversteps his bounds, his decisions are subject to an appeal to the FST. 

[37]            Before concluding on this point, I wish to make it clear that nothing I have said in these reasons should be taken as endorsing the Registrar’s adoption of the Licensee Practice Manual as being an appropriate guideline to apply under the Act.  In my view, the applicability of the guidelines is a question going to the exercise of the Registrar’s jurisdiction and not to jurisdiction per se.  That issue, and the overall length of time imposed by the Registrar before considering a further application were not the subject of this appeal. 

CONCLUSION

[38]            In summary, I conclude that the chambers judge did not err in upholding the decision of the FST, and, in turn, the Registrar’s decision, that the Registrar has implicit jurisdiction under the Act to refuse to consider a further application for registration for a stated period as being practically necessary to the exercise of his powers under s. 4 of the Act. 

[39]            I would dismiss the appeal.

“The Honourable Madam Justice Prowse”

I Agree:

“The Honourable Mr. Justice Hall”

Reasons for Judgment of the Honourable Mr Justice Chiasson:

[40]            I have had the opportunity to read in draft the reasons for judgment of Madam Justice Prowse.  I agree with them, but wish to add a few comments of my own.

[41]            Although I agree with the observation of my colleague that repeat applications for registration by the same applicant with the same conditions of unsuitability would abuse the system and be contrary to the public interest, I am not prepared in this case to incline to the view that the Registrar has the power to protect against any abuse of the licensing power or that his ability to do so is not dependent on the existence or proof of systemic abuse of the system.

[42]            I prefer to ground jurisdiction on the need to protect the integrity of the mortgage broker industry.  The general public is told that the Registrar will not register those convicted of serious crimes until he or she is satisfied sufficient time has passed to ensure their rehabilitation.  It seems to me this clearly is within his mandate.  The Registrar in this case did not base his decision on a fear of multiple applications.  That is, he was not exercising a jurisdiction to protect his process.  He said:

…it is my belief that his proposed registration is objectionable because to register Pugliese would negatively impact the public and industry confidence in the Financial Services Sector.”

…I conclude that the confidence in the financial services sector and the reputation of the many honest ethical mortgage broker registrants can only be preserved by not allowing Pugliese to be registered until he has re-established his suitability and his registration is not objectionable.  This can only be done with the passage of time.

[43]            Mr. Justice Goepel quashed the Registrar’s third order, which was:

The Registrar will not consider an application at that time [five years after completion of his sentence, which would be July 2014] unless Mr. Pugliese can clearly demonstrate he has rehabilitated himself and re-established his suitability.

[44]            This aspect of Mr. Justice Goepel’s order was not appealed and is not before this Court, but in my view it never should have been made.

[45]            Although the application before the Chambers judge sought judicial review of the orders of the Registrar and the Financial Services Tribunal, the only decision properly before him was that of the FST.  Review of the Registrar’s decision is given by statute to the FST.  The Registrar’s third order was not appealed to the FST (para. 12 of Goepel J.’s reasons).  It was not properly before the Chambers judge.

[46]            I also would dismiss this appeal.

“The Honourable Mr. Justice Chiasson”