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the business. The definition of mortgage lender includes a person who holds himself, herself, or itself out as engaging in lend- ing money in Ontario on the security of real property. This means a vendor who advertises as offering VTBs could be considered a mortgage lender even if the vendor has not yet actually completed a VTB transaction. Care should be taken, therefore, when listing or advertising the property for sale not to represent it is part of the vendor's business to earn income from mortgage lending. There are relevant considerations, but as of yet, there have been no signifi- cant cases to resolve the issues. Some consideration for the vendor includes whether the vendor has held itself out as a mortgage lender. What did the listing or any advertising say? Were there any writ- ten or oral representations or statements made to the purchaser or prospective purchasers? Considered fairly, did the listing, advertisement, representations, or statements give the impression the vend- or was in the business of earning income from mortgage lending? In addition, a vendor should assess whether it could be considered a mort- gage lender based on its past conduct or future business plans. A vendor with a portfolio of properties, in which the vendor regularly trades and has in the past granted a VTB as part of its trading activ- ities is much more likely to be considered to be carrying on business as a mortgage lender than a vendor who infrequently trades in property and has never before granted a VTB. A vendor whose business plan going forward includes provisions for VTBs as a means of earning income from the sale of properties is more likely to be considered to be carrying on busi- ness as a mortgage lender than a vendor who simply needed to give the VTB on a property in order to dispose of it under current market conditions. Retaining a lawyer to negotiate, draft, and/or register its VTB is not sufficient to exempt the vendor from being licensed under the MBLAA. Lawyers are exempt only from the requirement to be licensed to deal, trade, or administer mortgages. For example, a lawyer is exempt from being licensed when negotiating or arran- ging a mortgage. However, this does not exempt a lender from the requirement to be licensed. The Financial Services Commission of Ontario can enforce administrative penalties for non-compliance with the MBLAA. Fines, regulatory measures such as compliance orders, licence revocation, court-ordered restitution, or compensa- tion can all be imposed. Specific penalties for non-compliance can be found in the act's regulations. IH Andrea L. Centa is a partner in the commercial real estate group of Fraser Milner Casgrain LLP in Toronto. THE COMPLEX MINEFIELD OF IP AND TECHNOLOGY LAW REQUIRES EXPERT NAVIGATION. IP SMART & BIGGAR'S internationally recognized professionals have the technical and legal experience to help you navigate the complex, high-stakes world of IP & technology law. With offices across the country, we are able to work with you to provide and leverage the right skills, knowledge and resources to create unparalleled IP solutions tailored to your unique needs. smart-biggar.ca | Ottawa | Toronto | Montreal | Vancouver Untitled-5 1 INHOUSE FEBRUARY 2010 • 12/23/09 2:36:06 PM 9 UNPARALLELED