The Applicant, Financial Services Tribunal, was given leave to intervene on an appeal from a Chambers decision quashing one of its decisions

Administrative law – Decisions of administrative tribunals – Registrar of Mortgage Brokers – Financial Services Tribunal – Mortgage brokers – Judicial review – Application for intervenor status – Appeals – Evidence – Compliance with legislation

Westergaard v. British Columbia (Registrar of Mortgage Brokers), [2011] B.C.J. No. 990, 2011 BCCA 256, British Columbia Court of Appeal, May 9, 2011, M.V. Newbury J.A. (In Chambers)

The Applicant, the Financial Services Tribunal, sought intervenor status in an appeal by the plaintiff, Mr. Westergaard, from a decision by a Chambers Judge that quashed the Tribunal’s decision. The background to the Chambers decision is complex but it involves the plaintiff’s application for registration as a mortgage broker in British Columbia. He was initially denied registration and then registered with conditions. The plaintiff then successfully appealed the imposition of conditions to the Tribunal; the Tribunal remitted the matter to the Registrar of Mortgage Brokers for re-consideration.

When the matter was remitted, the Registrar held a hearing and acknowledged that it was previously aware of unsatisfied judgments against the plaintiff’s company (the company was a registered mortgage broker). This was significant because section 22(7) of the Mortgage Brokers Act placed a two-year limitation date on the Registrar’s ability to commence a proceeding under the Act. The Registrar considered the unsatisfied judgments (the “old facts”) and refused to grant him registration.

The Registrar decided that section 22(7) did not apply to hearings to determine the suitability of applications for registration. The plaintiff appealed the Registrar’s decision to the Tribunal. The Tribunal accepted that section 22(7) applied to suitability hearings but found that the plaintiff’s evidence (about the “old facts”) at the suitability hearing could be considered “new facts” supporting the Registrar’s refusal of registration.

The plaintiff and the Registrar both filed petitions in respect of the Tribunal’s decision. The Chambers Judge concluded that section 22(7) was applicable to a suitability hearing. The Chambers Judge went on to hold that “new facts” contradicting “old facts” can be considered and so can an applicant’s perspective regarding “old facts”. However, he found the Registrar’s inquiries went beyond this and he quashed the Tribunal’s decision and remitted the matter back to the Tribunal for a reconsideration.

The plaintiff appealed the finding that the Registrar could consider “old facts” for certain purposes. The Registrar also cross-appealed the dismissal of its petition to uphold the Tribunal’s decision. The Tribunal applied for intervenor status on the appeal.

The Court of Appeal first noted that the Tribunal did not participate in the petition for judicial review before the Chambers Judge. The Court therefore considered whether that affected the Tribunal’s right to participate on the appeal. The Court concluded that whether the Tribunal was considered a “respondent” or an “intervenor”, it could speak to the issues that are jurisdictional in nature.

The Court then specifically considered the issues that the Tribunal could speak to in the context of this appeal. The Court held the Tribunal could speak to two related issues: whether the Chambers Judge erred in determining the applicable standard of review and whether the Chambers Judge erred in determining that the Tribunal was not required to give deference to the Registrar’s legal interpretation of section 22(7). The Tribunal could not speak to the issue of whether the Chambers Judge erred in applying the patently unreasonable test when deciding to remit the matter to the Tribunal.

The Tribunal was given leave to intervene on two issues.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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