Alberta Gazette — 31 January 2006 (Part II)
31 January 2006
Alberta — Gazette
Alberta Regulation 1/2006
Fair Trading Act
AUTOMOTIVE BUSINESS AMENDMENT REGULATION
Filed: January 9, 2006
For information only: Made by the Minister of Government Services
(M.O. C001/2006) on January 5, 2006 pursuant to sections 105(1)(d), 139(
h) and
140(3)(
d) of the Fair Trading Act.
1 The Automotive Business Regulation (AR 192/99) is
amended by this Regulation.
Section 1 is amended
(
a) by renumbering it as
section 1(1);
(
b) in subsection (1)
(
i) in clause (
d) by striking out "the compensation
fund" and substituting "the fund";
(ii) by adding the following after clause (e):
(e.1) "consumer" means
(
i) an individual who receives or has the right to
receive goods or services for personal use
from an automotive business as a result of a
purchase, lease, gift, contest or other
arrangement, but does not include an
individual who intends to sell the goods after
receiving them, or
(ii) a business with a commercial fleet of 5 or
fewer vehicles that receives or has the right to
receive goods or services for business use
from an automotive business as a result of a
purchase, lease, gift, contest or other
arrangement, but does not include a business
that intends to sell the goods after receiving
them;
(iii) in clause (
h) by striking out "motor";
(iv) by repealing clause (
i) and substituting the
following:
(i) "recycler and dismantler" means a person who
carries on the activities of purchasing and
dismantling or disassembling wrecked, abandoned
or damaged vehicles and selling
(
A) the usable parts,
(
B) the vehicle as a unit at wholesale, or
(
C) the hulk of the vehicle after the usable parts
have been removed;
(
v) in clause (
j) by striking out "motor";
(vi) by adding the following after clause (j):
(k) "vehicle" means
(
i) a motor vehicle as defined in the Traffic
Safety Act, but does not include a motor cycle
or off-highway vehicle as defined in that Act,
and
(ii) a recreational vehicle intended to be towed
that combines transportation and temporary
living accommodations for the purpose of
travel or camping;
(l) "wholesaler" means an automotive business that
buys vehicles from, sells or consigns vehicles to or
exchanges vehicles with other automotive
businesses exclusively, and includes an automotive
business that buys vehicles from members of the
public for sale to other automotive businesses but
not to consumers.
(
c) by adding the following after subsection (1):
(2) The definition of "consumer" in
section 1(1)(
b) of the Act
does not apply to this Regulation.
Section 2 is repealed.
Section 3(2) to (6) are repealed and the following is
substituted:
(2) A person who holds an automotive sales licence is authorized to
carry on a class or classes of the activity of buying or selling vehicles
as specified by the Director, including, but not limited to, selling
vehicles as
(
a) a retailer,
(
b) a wholesaler, or
(
c) an agent or broker,
but not including selling vehicles on consignment.
(3) A person who holds an automotive leasing licence is authorized
to carry on a class or classes of the activity of leasing vehicles as
specified by the Director.
(4) A person who holds an automotive consignment licence is
authorized to carry on a class or classes of the activity of selling
vehicles on consignment as specified by the Director.
(5) A person who holds an automotive repair licence is authorized to
carry on the activities of
(
a) repairing vehicles,
(
b) servicing vehicles,
(
c) recycling and dismantling vehicles, or
(
d) installing parts or equipment in vehicles
as specified by the Director on the licence.
(6) For the purposes of subsection (5), "installing" includes but is
not limited to the installation of anti-theft systems, stereo,
audio-visual and remote start systems and modification kits.
(7) A person who holds an automotive business licence is not
authorized to carry on any class or classes of activities that are not
specified on the licence.
Section 3.1 is repealed.
Section 4 is amended
(
a) by renumbering it as
section 4(1);
(
b) in subsection (1)(
b) by striking out "standards of
conduct" and substituting "codes of conduct";
(
c) by adding the following after subsection (1):
(2) The Director may require an applicant for a class of
automotive business licence to furnish a security in a form and
amount approved by the Director.
Section 5 is repealed and the following is substituted:
Term of licence
5(1) An automotive business licence has a term of one year and
may be renewed for additional one-year terms.
(2) In a case where, in the opinion of the Director, it is in the
public interest to issue or renew a licence referred to in
section 3
for a term of less than one year, the Director may do so.
Section 6 is repealed and the following is substituted:
Death of business operator
6 If a business operator dies during the term of the licence, the
licence is deemed to be held by
(
a) the business operator's executor,
(
b) the administrator of the business operator's estate, or
(
c) the business operator's next of kin where letters of
administration have not been granted.
Section 8 is amended by striking out "licensee" and
substituting "business operator".
Section 9 is amended
(
a) by striking out "licensee" wherever it occurs and
substituting "business operator";
(
b) by adding "create and" before "maintain financial
records";
(
c) by striking out "engaged in the business" and
substituting "carrying on the activities".
Section 10 is amended
(
a) by striking out "licensee" wherever it occurs and
substituting "business operator";
(
b) by striking out "licensee's" and substituting "business
operator's".
12 The heading before
section 11 is struck out and the
following is substituted:
Codes of Conduct
Section 11 is amended
(
a) by renumbering it as
section 11(1);
(
b) in subsection (1)
(
i) by striking out "licensee" wherever it occurs and
substituting "business operator";
(ii) by striking out "licensee's" and substituting
"business operator's";
(
c) in subsection (1)(
b) by adding "in the case of print and
television advertising," before "that";
(
d) by adding the following after subsection (1):
(2) A business operator must ensure that every advertisement
for an automotive business that promotes the use or purchase
of goods or services
(
a) states whether the vehicle pictured in the advertisement
is or is not the specific vehicle that is for sale,
(
b) identifies vehicles that have been used as taxi cabs,
police cars or emergency vehicles or that have been
recertified when the previous use or condition of the
vehicles is known to the business operator,
(
c) does not misrepresent, through statements or omissions,
a vehicle's mechanical or structural condition,
(
d) uses descriptions and makes promises only in
accordance with actual conditions, situations and
circumstances,
(
e) does not use a font that due to its size or other visual
characteristics is likely to materially impair the
legibility or clarity of the advertisement and, without
limiting the generality of the foregoing, in no case uses
a font size smaller than 8 points,
(
f) does not use the words, or words similar to,
"demonstrator vehicle" or "demo vehicle" unless the
vehicle in question was purchased new by the business
operator and used solely for the normal business of the
business operator,
(
g) does not use the words, or words similar to, "savings",
"discount", "percentage off the purchase price", "free",
"invoice price", "below invoice", "dealer's cost", "at
cost" or a price that is a specified amount above or
below invoice or cost unless the claims represented by
the words can be substantiated,
(
h) does not use the words, or words similar to,
"wholesale", "take over payments" or "repossession"
unless the claims represented by the words are
objectively and demonstrably true,
(
i) does not imply a warranty exists with respect to a
vehicle or a repair or service unless such a warranty
with respect to the vehicle, repair or service exists and is
available at the price advertised,
(
j) does not make comparisons or claims of superiority
unless the results of the comparisons or the claims can
be substantiated,
(
k) does not offer a guaranteed trade-in allowance for any
vehicle regardless of make, year or condition,
(
l) includes in the advertised price for any vehicle the total
cost of the vehicle, including, but not limited to, all fees
and charges such as the cost of accessories, optional
equipment physically attached to the vehicle,
transportation charges and any applicable taxes or
administration fees, but not including GST or costs and
charges associated with financing, and
(
m) includes the stock number of the specific vehicle that is
advertised as being available for sale at the time the
advertisement is placed.
14 Sections 12 to 15 are repealed and the following is
substituted:
General codes of conduct
12 Every business operator must comply with
section 6 of the
Act and in addition must
(
a) not make any representations, statements or claims that
are not true or are likely to mislead a consumer,
(
b) use only timely, accurate, verifiable and truthful
comparisons that can be supported with established and
reliable data,
(
c) not abuse the trust of a consumer or exploit any fear or
lack of experience or knowledge of a consumer,
(
d) not use undue, excessive or unreasonable pressure on a
consumer to complete a transaction,
(
e) not make any verbal representations regarding contracts,
rights or obligations that are not contained in written
contracts,
(
f) not make any representation that savings, price benefits
or advantages exist if they do not exist or if there is no
evidence to substantiate the representation,
(
g) not use threatening, intimidating, abusive or coercive
language in discussions with a consumer,
(
h) not charge a price for goods or services that is more
than 10%, to a maximum of $100, higher than the
estimate given for those goods or services unless
(
i) the consumer has expressly consented to the higher
price before the goods or services are supplied, or
(ii) if the consumer requires additional goods or
services, the consumer and the supplier agree to
amend the estimate in a consumer agreement,
(
i) not make any representation to a consumer that the
business has the ability to install equipment or to
perform a particular repair or service unless the business
has the equipment, tools and expertise necessary to
complete the installation, repair or service,
(
j) not subcontract repair work without the knowledge and
prior consent of the consumer,
(
k) when rebuilding or restoring a vehicle, do so in such a
manner that it conforms to or exceeds the original
manufacturer's established standards or specifications
and allowable tolerances for the particular model and
year unless the consumer has consented in writing to a
specific different standard before the rebuilding or
restoration is done,
(
l) not substitute used, rebuilt, salvaged or straightened
parts for new replacement parts without the consumer's
knowledge and prior consent,
(
m) provide the consumer in writing with information
regarding the parts installed, including whether they are
original equipment manufacturer's parts or from another
source, and whether they are new, used or
reconditioned,
(
n) offer to return all parts removed from the vehicle in the
course of work or repairs to the consumer, and return
them unless advised by the consumer that the consumer
does not require the parts to be returned, and
(
o) comply with any legislation that may apply to the
selling, leasing, consigning, repairing, installing,
recycling or dismantling of vehicles.
Section 16 is amended
(
a) in subsections (1) to (3) by striking out "licensee"
wherever it occurs and substituting "business
operator";
(
b) by repealing subsections (4) and (5) and
substituting the following:
(5) A salesperson who acts on behalf of more than one business
operator within the same class of automotive business licence
must be registered separately in respect of each such business
operator but is required to pay only one registration fee annually.
(
c) in subsections (6) to (8) by striking out "licensee"
wherever it occurs and substituting "business
operator".
Section 20.1 is repealed and the following is
substituted:
Acting on behalf of business operator
20.1 No business operator may allow a salesperson to act on the
business operator's behalf unless
(
a) the salesperson is registered for the class of licence held
by the business operator, and
(
b) the business operator authorizes the salesperson to act
on its behalf.
Section 21 is amended
(
a) in subsection (1) by striking out "licensee" wherever
it occurs and substituting "business operator";
(
b) by repealing subsection (2) and substituting the
following:
(2) The business operator must notify the Director either before
the salesperson ceases to be authorized or within 15 days after
the salesperson ceases to be authorized.
Section 25 is amended by striking out "licensee"
wherever it occurs and substituting "business operator".
Section 26 is repealed and the following is substituted:
Investments
26 Subject to
section 28, the Council may invest the money in the
compensation fund only in securities or classes of securities in
which trustees are permitted to invest trust funds under the Trustee
Act.
Section 32 is amended
(
a) in subsection (1)
(
i) by striking out "an individual" and substituting "a
consumer";
(ii) by striking out "motor";
(iii) by striking out "the individual" and substituting
"the consumer";
(
b) in subsection (2) by striking out "motor".
Section 33 is amended
(
a) by striking out "motor" wherever it occurs;
(
b) by repealing subsection (2)(c)(iv) and substituting
the following:
(iv) the history of the vehicle within the consignor's
knowledge, setting out any special uses of the vehicle,
such as police or taxi use, whether it was recertified and
any other information that a reasonable buyer would
want to be aware of;
(
c) by repealing subsection (3)(
c) and substituting the
following:
(
c) the business operator agrees to provide to the consignor,
within 14 days of the date of sale of the vehicle, a copy
of the bill of sale that sets out the purchase price for
which the vehicle was sold.
22 The following is added after
section 33:
Paying out proceeds
33.1(1) A business operator who enters into a consignment
agreement to sell a consignor's vehicle must, within 14 days of the
date that the operator sells the vehicle,
(
a) if the business operator has knowledge that the vehicle
is subject to a lien,
(
i) issue a cheque for the amount owing under the lien
payable to the lienholder and take reasonable steps
to ensure that the lienholder receives the amount
owing, and
(ii) provide to the consignor a cheque payable to the
consignor for the consignor's share of the purchase
price, being the purchase price less the amount
payable to the lienholder and the business
operator's disbursements, fees and commissions,
and a statement of account that meets the
requirements of subsection (2),
and
(
b) in any other case, provide to the consignor a cheque
payable to the consignor for the consignor's share of the
purchase price, being the purchase price less the
business operator's disbursements, fees and
commissions, and a statement of account that meets the
requirements of subsection (2).
(2) The statement of account must set out
(
a) the amounts required to pay out any outstanding liens
on the vehicle,
(
b) a description of any vehicle or other personal property
received as consideration for the sale of the consignor's
vehicle and the value assigned to the vehicle or other
property, and
(
c) the amount payable to the consignor.
Other property received
33.2 A business operator who has entered into a consignment
agreement to sell a consignor's vehicle and has received as
consideration for the sale of the consignor's vehicle another
vehicle or other personal property must, within 14 days of the date
of the sale of the consignor's vehicle,
(
a) give the other vehicle or personal property to the
consignor, or
(
b) deal with the vehicle or personal property in accordance
with the written instructions of the consignor.
Compliance with deemed terms
33.3 A business operator who enters into a consignment
agreement must comply with the terms that are, under
section
33(3), deemed to be contained in the consignment agreement.
Section 34(1) is amended
(
a) by striking out "section 9" and substituting "section
3(7), 9";
(
b) by striking out "13 or 33(4)" and substituting "33(4),
33.1 or 33.2".
24(1) Subject to subsection (2), this Regulation comes into
force on the coming into force of the Fair Trading
Amendment Act, 2005.
(2) Sections 13, 14 and 21(
c) come into force on March 1,
Alberta Regulation 2/2006
Cancer Programs Act
CANCER PROGRAMS AMENDMENT REGULATION
Filed: January 9, 2006
For information only: Made by the Minister of Health and Wellness (M.O. 03/2006)
on January 4, 2006 pursuant to
section 22 of the Cancer Programs Act.
1 The Cancer Programs Regulation (AR 242/98) is
amended by this Regulation.
Section 6 is amended
(
a) in subsection (1)
(
i) by striking out "initially";
(ii) by striking out "for 30 days";
(
b) by repealing subsection (2).
--------------------------------
Alberta Regulation 3/2006
Fair Trading Act
COLLECTION PRACTICES AMENDMENT REGULATION
Filed: January 12, 2006
For information only: Made by the Minister of Government Services
(M.O. C002/2006) on January 11, 2006 pursuant to sections 1(2), 118, 139, 143 and
162(2) of the Fair Trading Act.
1 The Collection Practices Regulation (AR 194/99) is
amended by this Regulation.
2 The title of the Regulation is repealed and the following
is substituted:
COLLECTION AND DEBT REPAYMENT
PRACTICES REGULATION
Section 1 is repealed and the following is substituted:
Interpretation
Definitions
1 In this Regulation,
(a) "Act" means the Fair Trading Act;
(b) "collection agency" means a person, other than a
collector or debt repayment agent,
(
i) who carries on the activities of collecting or
attempting to collect a debt or debts from a debtor
in Alberta under any name that differs from that of
the creditor to whom the debt is or was originally
owed, regardless of to whom or where the payment
is made,
(
A) on behalf of another person, or
(
B) where the person has purchased a debt or
debts that is or are in arrears,
but does not include
(
C) a person who is collecting or attempting to
collect a debt of which the person is the
original creditor or owner,
(
D) a business that purchases a debt or debts
through acquiring or merging with a business
in a transaction that includes the transfer of
accounts receivable,
(
E) a business that acquires a debt or debts
through the seizure of accounts receivable
under a security agreement, or
(
F) a person to whom the contract that gave rise
to the debt was assigned for the purpose of
financing the transaction,
(ii) who carries on the activities of a debt repayment
agency;
(c) "collector" means an individual employed or authorized
(
i) by a collection agency to carry on the activities of
a collector by
(
A) collecting or attempting to collect a debt or
debts from a debtor,
(
B) locating debtors in Alberta, or
(
C) acting for or dealing with a debtor,
(ii) by a debt repayment agency to carry on the
activities of a debt repayment agent;
(d) "contact" means communications by telephone,
facsimile, e-mail, automated call system, text messaging
or in person, including messages left for a debtor with
another person or by voicemail or on an answering
machine, or any other form of communication not
specifically excluded, but does not include
communications that the debtor has expressly consented
to or solicits in advance;
(e) "creditor" means a person to whom a debtor owes a
debt or who has extended credit to a debtor, including,
but not limited to, credit in the form of a sale on credit,
a loan of money or the provision of goods and services;
(f) "debt" means a monetary obligation enforceable at law
owed by a debtor in Alberta, including, but not limited
to, a purchase on credit, accounts receivable, a loan of
money or the provision of goods or services;
(g) "debt repayment agency" means a collection agency
that carries on the activities of offering or undertaking
to act for a debtor in Alberta in arrangements or
negotiations with the debtor's creditors or receiving
money from a debtor for distribution to the debtor's
creditors in consideration of a fee, commission or other
remuneration that is payable by the debtor;
(h) "debt repayment agent" means a collector employed or
authorized by a debt repayment agency to act for or deal
with debtors;
(i) "debtor" means an individual who has an obligation for
a debt, including, but not limited to, the owner of a sole
proprietorship, a member of a partnership or an
individual who has provided a personal guarantee;
(j) "express consent" means consent in a verifiable form,
including, but not limited to, writing and audio
recordings;
(k) "representative" means a person, other than the debtor,
that a collection agency or collector has the express
consent of the debtor to contact and communicate with
about the debt, but does not include a minor child.
Section 3 is repealed and the following is substituted:
Licences
3(1) The following classes of licence are established:
(
a) a collection agency licence;
(
b) a debt repayment agency licence;
(
c) a collector's licence;
(
d) a debt repayment agent's licence.
(2) No person may carry on the activities of a collection agency
described in
section 1(b)(
i) unless the person holds a collection
agency licence.
(3) No person may carry on the activities of a debt repayment
agency described in
section 1(b)(ii) unless the person holds a debt
repayment agency licence.
(4) No individual may carry on the activities of a collector
described in
section 1(
c) unless the individual holds a collector's
licence.
(5) No individual may carry on the activities of a debt repayment
agent described in
section 1(
h) unless the individual holds a debt
repayment agent's licence.
(6) Notwithstanding subsection (4), a collector who proposes to
carry on the activities of a debt repayment agent for a debt
repayment agency is required to hold only a debt repayment
agent's licence.
(7) No person may hold at the same time
(
a) a collection agency licence, and
(
b) a debt repayment agency licence.
(8) No individual may hold at the same time
(
a) a collector's licence, and
(
b) a debt repayment agent's licence.
Misrepresentation
3.1(1) No person may represent itself as carrying on the activities
(
a) of a collection agency unless the person holds a
collection agency licence, or
(
b) of a debt repayment agency unless the person holds a
debt repayment agency licence.
(2) No individual may represent himself or herself as carrying on
the activities
(
a) of a collector unless the individual holds a collector's
licence, or
(
b) of a debt repayment agent unless the individual holds a
debt repayment agent's licence.
Section 4 is repealed and the following is substituted:
Registered location
4(1) All locations at which collection activity or debt repayment
activity occurs must be registered with the Director.
(2) A collection agency or debt repayment agency must direct
debtors
(
a) to make payments at and otherwise communicate
through a registered location, or
(
b) to deal directly with the creditor of the debt.
(3) All collection agency activity or debt repayment agency
activity must be conducted at a registered location and entered on
the systems of the collection agency or debt repayment agency.
6 Sections 5 to 9 are repealed and the following is
substituted:
Term of licences
5(1) The term of a licence for a collection agency or debt
repayment agency expires on the last day of the 12th month after it
is issued or renewed.
(2) The term of a licence for a collector or debt repayment agent
expires when the collection agency or debt repayment agency
licence of the business for which the collector or debt repayment
agent acts expires.
Fees
6(1) The fee to issue or renew a collection agency or debt
repayment agency licence is $168.
(2) The fee to issue or renew a collector's or debt repayment
agent's licence is $72.
(3) The fee to issue an amended licence for a collection agency,
debt repayment agency, collector or debt repayment agent,
including the transfer of a collector's licence or debt repayment
agent's licence to a different collection agency or debt repayment
agency, is $40.
General Licensing and Security Regulation
7 The General Licensing and Security Regulation (AR 187/99)
applies to collection agencies, debt repayment agencies, collectors
and debt repayment agents.
Security
8(1) No licence that authorizes a collection agency or debt
repayment agency to act for creditors or debtors may be issued or
renewed unless the applicant submits to the Director a security in a
form and an amount approved by the Director.
(2) The Director may, if the Director considers it appropriate,
increase the amount of the security that is to be provided by a
licensee before the term of the licence expires.
Cessation of employment
9 When a collection agency ceases to employ a collector, or a
debt repayment agency ceases to employ a debt repayment agent,
the agency must send to the Director within 15 days written
notification of
(
a) the name of the collector or the debt repayment agent,
as the case may be, and
(
b) the date that the collector or the debt repayment agent
ceased to be employed by or authorized to act on behalf
of the agency.
Section 10 is amended
(
a) in subsection (1)
(
i) by adding "or debt repayment agency" after
"collection agency" wherever it occurs;
(ii) by adding "or debt repayment agents" after
"collectors";
(
b) in subsection (2)
(
i) by adding "or debt repayment agency" after
"collection agency" wherever it occurs;
(ii) by adding "or debt repayment agents" after
"collectors";
(
c) in subsection (3)
(
i) by adding "or debt repayment agent" after
"collector" wherever it occurs;
(ii) by adding "or debt repayment agent's" after
"collector's";
(
d) in subsection (4) by adding "or debt repayment agent"
after "collector" wherever it occurs;
(
e) by adding the following after subsection (4):
(5) When the name of a collection agency, debt repayment
agency, collector or debt repayment agent changes, no collection
activity or debt repayment activity may be undertaken until an
amended licence has been issued
(
a) for a collection agency or debt repayment agency under
subsection (2), or
(
b) for a collector or debt repayment agent under subsection
(4).
Section 11 is amended
(
a) by repealing subsection (1) and substituting the
following:
Change in business address
11(1) When the business address of a collection agency or
debt repayment agency changes, the collection agency or debt
repayment agency must, within 15 days after the change of
address, return its licence to the Director and ensure that all of
the licences of its collectors or debt repayment agents are
returned to the Director.
(
b) in subsection (2)
(
i) by adding "or debt repayment agency" after
"collection agency" wherever it occurs;
(ii) by adding "or debt repayment agents" after
"collectors".
Section 12 is repealed and the following is substituted:
Prohibited practices for collection agencies
12(1) No collection agency or collector may
(
a) collect or attempt to collect money for a creditor except
on the belief in good faith that the money is due and
owing by the person to the creditor;
(
b) charge any fee to a person for whom the collection
agency or collector acts in addition to those fees
provided for in the agreement with that person;
(
c) if a collection agency,
(
i) carry on the activities of a collection agency in a
name other than the name in which it is licensed
unless it has received the approval of the Director
to do so, or
(ii) when using an automated call system, fail to
identify the debtor by name when the call is
answered by another person or when leaving a
message for the debtor, or to provide a contact
number for the debtor to call;
(
d) if a collector, collect or attempt to collect a debt without
providing
(
i) the collector's name as shown on the collector's
licence in all contacts and correspondence, and
(ii) the name of the collection agency as shown on the
collection agency licence in all contacts and
correspondence with the debtor;
(
e) make any arrangement with a debtor to accept a sum of
money that is less than the amount of the balance due
and owing to a creditor as final settlement without the
prior express consent of the creditor;
(
f) fail to provide any person for whom the collection
agency or collector acts with a written report on the
status of that person's account in accordance with this
Regulation;
(
g) make any personal call or telephone call for the purpose
of collecting or attempting to collect a debt on any day
except between 7 a.m. and 10 p.m. in Alberta;
(
h) directly or indirectly threaten or state an intention to
proceed with any action for which the collection agency
or the collector does not have the prior express consent
of the creditor or for which there is no lawful authority;
(
i) contact or attempt to contact the debtor, any member of
the debtor's household, any relative of the debtor, the
debtor's employer or any neighbour, friend or
acquaintance of the debtor by any means in such a
manner as to constitute harassment, including without
being limited to
(
i) the use of threatening, profane, intimidating or
coercive language,
(ii) the use of undue, excessive or unreasonable
pressure, or
(iii) the use of telephone or e-mail to call or send
messages excessively;
(
j) give any person, directly or indirectly, by implication or
otherwise, any false or misleading information,
including, but not limited to, references to the police, a
law firm, prison, credit history, court proceedings or a
lien or garnishment;
(
k) continue to collect or attempt to collect money from, or
continue to communicate with,
(
i) the person, where the person has informed the
collection agency or the collector that the person is
not the debtor, unless the collection agency or
collector first takes all reasonable precautions to
ensure that the person is in fact the debtor, or
(ii) the debtor, where the debtor has informed the
collection agency or the collector by any verifiable
means, including, but not limited to, personal
service, certified mail, courier, facsimile, or
e-mail, or by any other method, that the debt is in
dispute and that the debtor wishes the creditor to
take the matter to court;
(
l) contact a debtor's spouse or adult interdependent
partner, relative, neighbour, friend or acquaintance
unless the contact is limited to the purpose of obtaining
the debtor's residential address, personal telephone
number or employment telephone number;
(
m) contact the debtor's employer for any purpose other
than to confirm the debtor's employment status,
business title and the address of the business, in
preparation for legal proceedings;
(
n) contact the debtor when the debtor has notified the
collection agency in writing to communicate only with
the debtor's representative and has provided a current
address and telephone number for the representative,
and the representative
(
i) makes reasonable arrangements to discuss the debt
with the collection agency or collector, and
(ii) discusses the debt with the collection agency or
collector in accordance with the arrangements;
(
o) contact a debtor at the debtor's place of employment if
the debtor
(
i) requests the collection agency or collector not to
contact the debtor there,
(ii) makes reasonable arrangements to discuss the debt
with the collection agency or collector, and
(iii) discusses the debt with the collection agency or
collector in accordance with the arrangements;
(
p) communicate information about the debt or the
existence of the debt with any person except the debtor,
a guarantor of the debt, the debtor's representative or
the creditor of the debt unless the debtor has expressly
consented to the communication;
(
q) indicate to the debtor or any other person contacted for
the purpose of collecting the debtor's debt that the
collection agency or the collector is part of a law firm or
the legal department of a business, including a legal
department of the collection agency itself or of the
creditor of the debt;
(
r) if a collector, indicate to a debtor that the collector is a
legal collector, litigation specialist or the like;
(
s) charge any fee to a debtor beyond the debt that is due
and owing from the debtor to the creditor, excluding a
reasonable fee for a dishonoured cheque, if the fee was
disclosed to the debtor in writing prior to the submission
of the cheque;
(
t) refuse to provide sufficient information on request to
the debtor to ensure that the debtor is aware of the
identity of the original and current creditor of the debt
and the details of the debt;
(
u) enter into or arrange wage assignments with a debtor or
the employer of a debtor;
(
v) exceed 3 unsolicited contacts on behalf of the same
creditor with a debtor in any period of 7 consecutive
days, not including contacts with a third party to locate
a debtor, mistaken contact with a third party, or contacts
by traditional mail;
(
w) cancel or alter a payment agreement with a debtor if the
debtor has complied with the terms of the agreement
and the debtor's financial circumstances have not
changed materially, unless the debtor has
misrepresented the debtor's financial circumstances;
(
x) pursue a non-judgment debt where the last payment or
written acknowledgement by the debtor is more than 6
years previous;
(
y) do anything that is prohibited by this Regulation.
(2) A term of an agreement entered into by a collection agency is
void if that term
(
a) misrepresents the rights and powers of a person
collecting or attempting to collect a debt,
(
b) misrepresents the obligations or legal liabilities of a
debtor,
(
c) is misleading as to its true nature and purpose, or
(
d) otherwise contravenes the Act or this Regulation.
(3) Notwithstanding
section 110(2) of the Act, a collection agency
must not enter into an agreement or contract with or make a
request of a representative or employee of the collection agency
who is exempt under that
section to undertake any action that
contravenes this section.
(4) Subsection (1)(m), (
v) and (
w) come into force on March 1,
Prohibited practices for debt repayment agencies
12.1(1) No debt repayment agency or debt repayment agent may
(
a) if a debt repayment agent, collect or attempt to collect a
debt without providing in all contacts and
correspondence with the debtor and creditors
(
i) the agent's name as shown on the debt repayment
agent's licence, and
(ii) the name of the debt repayment agency as shown
on the debt repayment agency licence;
(
b) collect from a debtor any amount greater than that
prescribed by this Regulation for acting for the debtor in
making arrangements or negotiating with the debtor's
creditors on behalf of the debtor or receiving money
from the debtor for distribution to the debtor's creditors;
(
c) make any arrangement with a debtor to accept a sum of
money that is less than the amount of the balance due
and owing to a creditor as final settlement without the
prior express consent of the creditor;
(
d) fail to provide any person for whom the debt repayment
agency or debt repayment agent acts with a written
report on the status of that person's account in
accordance with this Regulation;
(
e) give any person, directly or indirectly, by implication or
otherwise, any false or misleading information,
including, but not limited to, references to the police, a
law firm, prison, credit history, court proceedings or a
lien or garnishment;
(
f) charge a fee for a dishonoured cheque unless the fee
was included in the debt repayment agreement with the
debtor;
(
g) charge or receive any fee in the form of a promissory
note or other negotiable instrument other than a cheque
or draft;
(
h) lend money or provide credit to a debtor;
(
i) offer, pay or give any gift, bonus, premium, reward or
other compensation to a debtor for entering into a debt
repayment agreement;
(
j) directly or indirectly collect any fee for referring,
advising, procuring, arranging for or assisting a debtor
in obtaining any extension of credit from a lender,
creditor or service provider;
(
k) make a claim for breach of contract against a debtor
who cancels a debt repayment agreement;
(
l) fail to inform a debtor within 30 days after the creditor
has notified the debt repayment agency that the creditor
has decided not to participate in or has withdrawn from
a debt repayment program;
(
m) communicate information about the debt or the
existence of the debt with any person except the debtor,
a guarantor of the debt, the debtor's representative or
the creditor of the debt.
(2) No debt repayment agency may collect or retain from the
debtor a fee, commission or disbursement for its services unless
before providing the service it has
(
a) entered into a written agreement signed by the debt
repayment agency and the debtor to provide the service,
or it has obtained written authorization signed by the
debtor to provide the service, and
(
b) delivered a copy of the agreement or authorization
under clause (
a) to the debtor.
(3) A written agreement under subsection (2)(
a) must
(
a) be dated and signed by the debt repayment agency and
the debtor,
(
b) include the name, address and telephone number of the
debtor and the name, address, telephone number and, if
available, fax number and e-mail address of the debt
repayment agency,
(
c) describe all the services that are to be provided under
the agreement,
(
d) state all fees, separately itemized, that are to be paid by
the debtor,
(
e) list all creditors as disclosed by the debtor to whom
payments will be made under the agreement, and
(
f) state the total amount owed, the payment amount, the
schedule of payments to be made and the total number
of payments for each listed creditor.
(4) No debt repayment agency may charge a debtor a fee that
exceeds,
(
a) in the case of a debt repayment agreement that includes
a
schedule of payments, the sum of
(
i) a one-time administration fee that is not higher
than the average monthly payment as set out in the
debt repayment agreement, and
(ii) 15% of the scheduled payment amount received
from or on behalf of the debtor by the debt
repayment agency,
(
b) in the case of a one-time payment to a creditor or
creditors, or an agreement to negotiate on the debtor's
behalf with a creditor or creditors identified in the debt
repayment agreement, 10% of the debt owing.
(5) A fee under subsection (4)(
b) may be charged to the debtor by
the debt repayment agency only after a settlement acceptable to the
debtor has been successfully negotiated with the creditor or
creditors.
(6) Subsection (1)(
l) comes into force on March 1,
Section 13 is amended by adding "or debt repayment
agency" after "No collection agency".
Section 14 is amended by adding "or debt repayment
agency" after "a collection agency".
Section 15 is repealed and the following is substituted:
Trust established
15(1) A collection agency is the trustee of any money collected on
behalf of another person.
(2) A debt repayment agency is the trustee of any money received
from a debtor for distribution to the debtor's creditors.
Section 16 is repealed and the following is substituted:
Trust account
16(1) Unless subsection (2) applies, a collection agency or debt
repayment agency must deposit all of the money collected on
behalf of another person or received from a debtor for distribution
to the debtor's creditors, without making any deduction, within 3
days of collecting or receiving the money into a trust account
maintained in a bank, loan corporation, trust corporation, credit
union or treasury branch in Alberta.
(2) The Director may
(
a) authorize a collection agency or debt repayment agency
to maintain its trust account in a class of financial
institution approved by the Director that is located
outside Alberta, and
(
b) prescribe the time when the money referred to in
subsection (1) is to be deposited into the trust account.
Section 17 is amended by adding "or debt repayment
agency" after "No collection agency".
Section 18 is amended
(
a) by adding "or debt repayment agency" after "collection
agency" wherever it occurs;
(
b) in subsection (1)
(
i) by adding the following after clause (b):
(b.1) returning money collected from a debtor by a debt
repayment agency if the debt repayment program
is rejected by the creditor or cancelled,
(ii) by adding "or 19.1" after "under
section 19";
(
c) by adding the following after subsection (2):
(2.1) A debt repayment agency that pays creditors from money
withdrawn from its trust account must do so by means of
consecutively numbered cheques and must provide the creditor
with a statement containing
(
a) the name of the debtor, and
(
b) the amount of the payment.
Section 19(1) is amended by adding "within 15 days of the
end of the 6-month period" after "Minister of Finance in trust".
17 The following is added after
section 19:
Unable to locate missing debtors
19.1(1) If a proposed debt repayment program has been rejected
and the debt repayment agency is unable to locate the debtor who
is entitled to money collected or received by the debt repayment
agency from that debtor within 6 months after the rejection of the
proposed debt repayment program, the debt repayment agency
must pay the money that has been collected or received by it, less
its fees, commissions and disbursements, to the Minister of
Finance in trust within 15 days of the end of the 6-month period.
(2) The Minister of Finance may, on receiving an application and
any information the Minister of Finance requires, pay the money
received under subsection (1) to the debtor.
(3) If the Minister of Finance does not receive an application by
the debtor for money paid under subsection (1) within 5 years from
the time that the money is paid to the Minister of Finance, the
money must be paid into the General Revenue Fund and all claims
to the money by the debtor entitled to it are extinguished.
Section 20 is amended
(
a) by striking out "engage in the business" and
substituting "carry on the activities";
(
b) by adding "or debt repayment agency" after "collection
agency" wherever it occurs;
(
c) in clause (
a) by adding "complete and accurate" before
"register";
(
d) by repealing clause (
b) and substituting the
following:
(
b) make the register available for inspection by an
inspector at a place in Alberta and at a time specified by
the inspector, and
19 The heading preceding
section 21 and
section 21 are
repealed and the following is substituted:
Requirements for Receipts, Reports
and Records
Receipts
21(1) Every collection agency and debt repayment agency must
acknowledge the receipt of all cash transactions, payments made in
person, or payments made at the debtor's request that the
collection agency or debt repayment agency or a collector, debt
repayment agent or employee collects or receives from a debtor for
distribution to the debtor's creditors by means of receipts that meet
the requirements of subsection (2).
(2) The receipts referred to in subsection (1) must contain
(
a) the date the amount is collected or received,
(
b) the name of the debtor,
(
c) the name of the person for whom the collection agency
or debt repayment agency acts, and
(
d) the amount received from the debtor.
Settlement agreements
21.1 If a collection agency or a collector reaches a settlement
agreement with a debtor, the collection agency or collector must,
when the amount set out in the settlement agreement has been paid
in full, provide to the debtor a receipt containing
(
a) the amount paid,
(
b) the name of the creditor or creditors, and
(
c) a statement that the amount received is in final
settlement of the debt or debts owing.
Audits
21.2(1) A collection agency or debt repayment agency must,
(
a) within 120 days after
(
i) the end of its fiscal year, and
(ii) the cessation of operations,
provide the Director with a report of its financial affairs
in a form established by the Director and signed by an
independent auditor acceptable to the Director, and
(
b) provide the auditor with access to every book and
record of the collection agency or debt repayment
agency that, in the opinion of the auditor, is necessary to
carry out the examination.
(2) The Director may order a collection agency or debt repayment
agency to correct, within a specified time, any defect or deficiency
in the form or maintenance of any book or record.
Section 22(1) is amended by striking out "section
116(1)(
g) of the Act" and substituting "section 12(1)(f)".
Section 23 is repealed and the following is substituted:
Reports to debtors
23(1) For the purposes of
section 12.1(1)(d), a written report that
is provided to a debtor by a debt repayment agency must contain
the following information:
(
a) the gross amount received by the debt repayment
agency from or on behalf of the debtor;
(
b) the amount and date of payments made on behalf of the
debtor and to whom they were made;
(
c) any fee, commission or disbursement retained by the
debt repayment agency.
(2) A debt repayment agency must provide, without charge, the
written report referred to in subsection (1) to the debtor for which
the debt repayment agency acts once every 60 days that the agency
is acting for the debtor.
Credit reporting
23.1 A collection agency that has reported a debt to a credit
reporting agency must inform the credit reporting agency of any
change in the status of the account within 35 days of the change.
Accounting
23.2(1) A collection agency must provide the debtor on request
with a complete accounting of all the details of the debt and, if
such an accounting is not in the possession of the collection
agency, the agency must request that the creditor provide it.
(2) If, within 30 days after receiving a request for an accounting
from a collection agency, the creditor has not provided a complete
accounting of the debt, the collection agency must
(
a) inform the debtor in writing that it cannot provide the
accounting and the reasons for it, and
(
b) cease all collection activity for that account and not
resume collection activity until the accounting is
provided.
(3) A debtor may request a complete accounting only once every 6
months, unless the collection agency fails to provide the complete
accounting as requested.
(4) This
section comes into force on March 1, 2006.
Records
23.3(1) Each collection agency and debt repayment agency must
create and maintain the following records of its activities:
(
a) in the case of a collection agency, contracts with
creditors;
(
b) in the case of a debt repayment agency, contracts with
debtors;
(
c) trust account records;
(
d) records relating to receipts issued and disbursements
made;
(
e) a log of telephone calls relating to collection activities;
(
f) records relating to collection activities, including, but
not limited to, records of contact such as note lines;
(
g) settlement or debt repayment agreements with debtors;
(
h) authorization to sue on behalf of a creditor;
(
i) authorization from a creditor to accept a debt repayment
program;
(
j) records relating to missing creditors and debtors and the
paying of funds to the Minister of Finance;
(
k) records relating to debtors;
(
l) reports and corrections sent to reporting agencies;
(
m) copies of all correspondence related to collection
activities or debt repayment activities, including, but not
limited to, letters, e-mails and faxes to a debtor, a
debtor's representative, a debtor's employer or a bank
with respect to the finances of a debtor;
(
n) records of instructions to a lawyer, law firm or legal
representative to commence or continue proceedings in
a court of law to obtain or enforce a judgment against a
debtor;
(
o) in the case of a collection agency, records relating to the
history of a debt at the time of assignment by the
creditor or purchase by the collection agency;
(
p) in the case of a debt repayment agency, records relating
to debt repayment programs, including, but not limited
to, the negotiation of a debt repayment program with
creditors;
(
q) a record or log of any debt repayment agreement
negotiated with a debtor, including details of the amount
of the payments, the
schedule of payments and the total
number of payments;
(
r) any other record considered necessary by the Director.
(2) A record referred to in subsection (1) must be retained by the
collection agency or debt repayment agency that created it for a
minimum of 3 years after the record is made.
Exemption
23.4 Sections 12, 19 and 23.2 do not apply to debt repayment
agencies or to debt repayment agents.
Section 24 is amended
(
a) by striking out "4," and substituting "3.1(1) or (2), 4,";
(
b) by striking out "12," and substituting "12(1) or (3),
12.1(1), (3) or (4),";
(
c) by striking out "20, 22(2) or 23(2)" and substituting
"20, 21(1), 21.1, 21.2(1), 22, 23(1) or (2), 23.1 or
23.2(2)(b)".
23 This Regulation comes into force on the coming into
force of the Fair Trading Amendment Act, 2005.
Alberta Regulation 4/2006
Fair Trading Act
ENERGY MARKETING AMENDMENT REGULATION
Filed: January 13, 2006
For information only: Made by the Minister of Government Services
(M.O. C:004/2006) on January 12, 2006 pursuant to sections 4.1, 105(1), 139 and
162(2) of the Fair Trading Act.
1 The Energy Marketing Regulation (AR 246/2005) is
amended by this Regulation.
Section 2(2) is amended by adding the following after
"section 14":
section 16;
section
Section 9 is amended by adding "or a Telephone marketing
contract" after "Internet marketing contract".
Section 10(1)(a)(xi) is amended by striking out "cost or".
5 The following is added after
section 11:
Part 2.1
Telephone Marketing Contract
Digital format
11.1 If a marketing contract is entered into by telephone, the
entire telephone call must be recorded in a digital format and
maintained by the marketer for the duration of the marketing
contract.
Copy of recording
11.2 A copy of the digital telephone recording must be provided
to the consumer or an inspector on request.
Initial contact
11.3 A Telephone marketing contract may be entered into when
(
a) the marketer initiates the telephone call to the consumer,
(
b) the consumer initiates the telephone call to the marketer.
Duties relating to documentation
11.4(1) A marketer
(
a) must ensure that for each Telephone marketing contract
the marketer enters into with a consumer the marketer
(
i) identifies himself or herself,
(ii) states that the telephone call is being recorded and
the consumer must consent to the telephone call
being recorded,
(iii) verifies the consumer's name, address and
telephone number,
(iv) for telephone marketing contract renewals, verifies
the person on the telephone the marketer is
speaking to is the account holder and is authorized
to renew the marketing contract,
(
v) states that the Telephone marketing contract is not
an electricity or a gas utility government rebate
program,
(vi) states that the marketer may not be able to supply
energy cheaper than the consumer's current utility
company,
(vii) states whether or not the consumer will be
responsible to buy energy under the Telephone
marketing contract if the consumer moves to
another location in Alberta,
(viii) states a specified or ascertainable expiry date of
the Telephone marketing contract,
(ix) states a specified or ascertainable date on which
the supply of energy is to begin,
(
x) specifies any charges for the supply of energy
provided for under the Telephone marketing
contract, including any exit fees that may be
directly or indirectly charged by an owner of an
electric distribution system,
(xi) states that the consumer may cancel the Telephone
marketing contract without cost or penalty within
10 days after a copy of the Telephone marketing
contract is received by the consumer,
(xii) states that the consumer may cancel the Telephone
marketing contract without cost or penalty if a
marketing contract, including another Telephone
marketing contract, presently exists for the same
property, except where the existing marketing
contract is to expire on or before the
commencement of the new marketing contract,
(xiii) states that the consumer may cancel the Telephone
marketing contract without penalty within 60 days
after receiving the first billing statement,
(xiv) states the consumer may cancel the Telephone
marketing contract without penalty within one year
from the date the Telephone marketing contract is
entered into if the marketer
(
A) does not set out in the Telephone marketing
contract a specified or ascertainable date on
which the supply of energy is to begin,
(
B) does not begin the supply of energy within 30
days of the date referred to in subclause (viii)
or an amended date agreed on in writing or
electronic form by the consumer and the
marketer, or
(
C) was not licensed under
Part 1 at the time the
Telephone marketing contract was entered
into,
and
(xv) confirms the consumer understands the terms and
conditions and price of energy in the Telephone
marketing contract and obtains the consumer's
consent for the Telephone marketing contract,
and
(
b) must state that a written copy of the Telephone
marketing contract will be mailed to the consumer and
will include details the consumer has consented to under
clause (
a) including the marketer's name, address,
telephone number, e-mail address and, if available, fax
number.
(2) If, after the 30-day period referred to in subsection
(1)(a)(xiv)(
B) has expired, the consumer expressly authorizes the
supply of energy to begin, the consumer may not cancel the
Telephone marketing contract pursuant to subsection
(1)(a)(xiv)(B).
Marketer bound by Telephone marketing contract
11.5 A marketer is bound by the terms of a Telephone marketing
contract when the consumer acknowledges the Telephone
marketing contract.
Section 12(1) is amended
(
a) in clause (b)(
x) by striking out "cost or";
(
b) in clause (
c) by striking out "in writing or electronic
form" and substituting "in writing or by fax or e-mail".
7 The following is added after
section 13:
Part 3.1
Rural Electrification Associations
Definition
13.1 For the purposes of this Part,
(a) "owner" does not include a Rural Electrification
Association.
(b) "Rural Electrification Association Marketing Contract"
means a marketing contract entered into between a
Rural Electrification Association and a member of a
Rural Electrification Association;
Application
13.2(1) Subject to subsection (2), this Regulation applies to Rural
Electrification Associations in relation to their activities as
providers of energy services to a member of a Rural Electrification
Association.
(2) The following provisions do not apply to a Rural
Electrification Association Marketing Contract:
Part 1;
section 10(1)(a)(xi)(C);
section 12(1)(b)(x)(C);
section 23.
Non-application
13.3 This Regulation does not apply to Rural Electrification
Associations in relation to their activities as
(
a) providers of electricity services under a regulated rate
tariff, or
(
b) providers of distribution access services.
Section 15 is amended
(
a) in subsection (1)(
a) by striking out "all";
(
b) in subsection (5) by striking out "cost or".
Section 16 is amended
(
a) by adding the following after subsection (3):
(3.1) If consent under subsection (1) is provided by telephone,
the entire telephone call must be recorded in a digital format
and maintained by the marketer for the duration of the renewed
marketing contract.
(3.2) A copy of the digital telephone recording must be
provided to the consumer or an inspector on request.
(3.3) If the marketing contract is renewed by telephone,
(
a) the marketer must identify himself or herself,
(
b) the consumer must identify himself or herself and the
consumer must confirm he or she is the account holder
and is authorized to renew the marketing contract,
(
c) the consumer must acknowledge acceptance of the
renewed marketing contract,
(
d) the consumer must confirm that the consumer has
received a copy of the renewal notice,
(
e) the consumer must confirm he or she understands the
marketing contract,
(
f) the consumer must confirm he or she understands the
renewed marketing contract may be cancelled without
penalty in accordance with subsection (2), and
(
g) the marketer must state that the telephone call is being
recorded.
(
b) in subsection (4) by striking out "in writing or
electronic form" and substituting "in writing or by fax or
e-mail".
Section 17 is amended
(
a) in subsection (4) by adding "in writing or by fax or
e-mail" after "subsection (2)";
(
b) by adding the following after subsection (4):
(4.1) If a consumer expressly accepts the notice of renewal by
telephone, the entire telephone call must be recorded in a
digital format and maintained by the marketer for the duration
of the renewed marketing contract.
(4.2) A copy of the digital telephone recording must be
provided to the consumer or an inspector on request.
Schedule 1 is amended by adding "or Telephone marketing
contracts" after "For marketing contracts other than Internet
marketing contracts".
12 This Regulation comes into force on the proclamation
of the Fair Trading Amendment Act, 2005.