Second Session,

48th General Assembly

66 Elizabeth II,

BILL 18

ACT TO AMEND THE PREPAID FUNERAL SERVICES ACT

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE SHERRY

GAMBIN-WALSH

Minister of Service

Newfoundland and Labrador

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Prepaid Funeral Services Act to create

the position of Registrar of Prepaid Funeral Services and to change the person

responsible for the administration and enforcement of the Act from the minister

to the registrar.

A BILL

AN ACT TO AMEND THE PREPAID FUNERAL

SERVICES ACT

Analysis

S.2 Amdt.

Definitions

S.2.1 Added

Registrar

S.3 Amdt.

Licence

S.3.1 Amdt.

Duration of licence

S.5 Amdt.

Assurance fund

S.6 Amdt.

Seller trust fund

S.7 Amdt.

Seller requirements

S.11.1 R&S

Appointment of examiners and investigators

S.12 Amdt.

Examination

S.13 Amdt.

Search and seizure with warrant

S.13.1 Amdt.

Powers of examiner or investigator

S.13.2 Amdt.

Production order

S.13.3 Amdt.

Protection order

S.13.4 R&S

Protection of trust funds

S.16.1 R&S

Limitation period

S.16.2 Added

Immunity of registrar

S.17 Amdt.

Transitional

18. Transitional

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL2000 cP-18.1

as amended

1. The Prepaid

Funeral Services Act is amended

by deleting the word "and" at the end of paragraph 2(

l) and by adding

immediately after that paragraph the following:

(l.1) "registrar" means the Registrar of

Prepaid Funerals; and

2. The Act is amended by adding immediately after

section 2 the following:

Registrar

2.1

(1) The

Lieutenant-Governor in Council shall appoint a Registrar of Prepaid Funerals to

administer and enforce this Act and the regulations.

(2) The Lieutenant-Governor in Council may appoint

a deputy registrar who shall, when the registrar is absent or unable to act,

when the registrar considers it necessary to delegate his or her authority, or

when the office of the registrar is vacant, perform the functions of and have

all the powers and authority of the registrar.

3. Subsections 3(1) to (4) of the Act are repealed

and the following substituted:

Licence

(1) A

person may, in writing, apply to the registrar for and the registrar may issue

to that person a licence to be a seller.

(2) A person applying under subsection (1) shall

provide to the registrar

(

a) copies of proposed prepaid funeral contracts;

(

b) the required fee; and

(

c) other records and documents that are required

by regulation.

(3) The registrar may refuse to issue a licence to

a person and may cancel the licence of a licensee where the registrar is of the

opinion that a

(

a) person has made a false or misleading

statement in the application for a licence or in documents in support of that application;

(

b) person applying for a licence or a licensee

cannot meet or no longer meets the requirements of this Act with respect to the

assurance fund, a trust fund or other requirements under this Act.

(3.1) The registrar may attach to a licence those

restrictions, limitations and conditions the registrar considers appropriate.

(4) Where the registrar is satisfied that a seller

does not comply with this Act or is not able to carry out the obligations

imposed upon the seller under this Act, he or she may order that seller to take

the remedial action that is necessary to bring the licensee into compliance

with this Act and for that purpose may direct that an auditor perform an audit

and inspect the books, documents and other records of the seller that relate to

prepaid funeral contracts.

4. Subsection 3.1(2) of the Act is repealed and the

following substituted:

(2) Notwithstanding subsection (1), the registrar

may issue a licence for a period of time the registrar considers appropriate.

5. (1) Subsection 5(3) of the Act is repealed

and the following substituted:

(3) The minister shall direct the registrar, the

association, or the board established under subsection (4) to be responsible

for the financial management and administration of and disbursement of payments

from the assurance fund in accordance with the regulations.

(2) Subsection 5(7) of the Act is repealed and the

following substituted:

(7) The costs and expenses in administering the

assurance fund may, in accordance with the regulations, be paid out of the assurance

fund to

(

a) the minister, where the registrar is administering

the fund;

(

b) the association, where it is administering the

fund; or

(

c) the board, where it is administering the fund.

(3) Subsection 5(9) of the Act is repealed and the

following substituted:

(9) The registrar, association or board, whichever

is directed by the minister to administer the fund, may borrow money for the

purpose of deposit to the fund.

(9.1) Notwithstanding subsection (9), the registrar

shall not borrow money for the purpose of deposit to the fund without the prior

written approval of the minister.

6. Subsection 6(4) of the Act is repealed and the

following substituted:

(4) A seller shall annually prepare and submit to

the registrar a report on the prepaid funeral contracts entered into and the

trust funds established under this

section for the year immediately preceding

that date.

7. Subsection 7(5) of the Act is repealed and the

following substituted:

(5) A seller shall annually carry out an audit of

the trust funds established by the seller under

section 6 and provide to the

registrar a copy of an audited statement of the prepaid funeral contracts, and

the funds,

(

a) collected with respect to those contracts

during the preceding fiscal year;

(

b) paid out from the trust accounts established

under subsection 6(1) during the preceding fiscal year;

(

c) contained in the trust accounts established

under subsection 6(1); and

(

d) payable to trust accounts established under

subsection 6(1).

Section 11.1 of the Act is repealed and the

following substituted:

Appointment of

examiners and investigators

11.1 The

registrar may appoint persons as examiners and investigators to conduct examinations

and investigations under this Act.

9. (1) Subsection 12(1) of the Act is

repealed and the following substituted:

Examination

(1) Where

it is reasonably necessary to ensure compliance with this Act, a person

appointed by the registrar under

section 11.1, may, for the purpose of

conducting an examination, at reasonable times enter the premises of a seller

and

(

a) require the production of books, records or

other documents applicable to prepaid funeral contracts sold by that seller or

its agent or salesperson and may examine those books, records or documents or

remove them for the purpose of making copies of them;

(

b) interview employees and agents of a seller to

determine if the seller is complying with this Act; and

(

c) inquire into all matters relating to prepaid

funeral contracts, funeral goods and funeral services related to those

contracts.

(2) Subsection 12(4) of the Act is repealed and

the following substituted:

(4) The registrar may require the annual

examination of a seller under this

section or more frequent examinations where

he or she considers it necessary.

10. Subsection 13(1) of the Act is repealed and the

following substituted:

Search and

seizure with warrant

(1) Where

a person appointed by the registrar under

section 11.1 believes on reasonable

grounds that a person is contravening or has contravened this Act, the person

may, with a warrant issued under subsection (2), enter those premises and seize

anything that may provide evidence of the contravention.

11. Subsection 13.1(1) of the Act is repealed and

the following substituted:

Powers of examiner

or investigator

13.1

(1) A

person appointed by the registrar under

section 11.1 to conduct an examination

or an investigation has the same power to summon and enforce the attendance of

a person and to compel him or her to testify on oath or otherwise, and to

summon and compel a person or company to produce documents and other things,

that is vested in a judge of the Trial Division, and the refusal of the person

to attend or to answer questions or of a person or company to produce documents

or other things that are in his, her or its custody or possession makes the

person or company liable to be committed for contempt by a judge of the Trial

Division as if in breach of an order of that court.

12. Subsection 13.2(2) of the Act is repealed and

the following substituted:

(2) An order referred to in subsection (1) shall

require the document or data to be produced within the time, at the place and

in the form specified and to be given to a person appointed by the registrar

under

section 11.1.

(1) Subsection 13.3(1) of the Act is

repealed and the following substituted:

Protection order

13.3

(1) Where

the registrar considers it necessary for the administration of this Act, the

registrar may direct a person, having on deposit or under his or her control or

for safekeeping funds of a seller, to retain those funds and to hold them until

the registrar in writing revokes the direction or consents to release a

particular fund from the direction, or until a judge of the Trial Division

orders otherwise.

(2) Subsections 13.3(3) and (4) of the Act are

repealed and the following substituted:

(3) As soon as practicable, and not later than 7

days after a direction is issued under subsection (1), the registrar shall

apply to a judge of the Trial Division to continue the direction or for another

order that the judge considers appropriate.

(4) A direction under subsection (1) may be made

without notice but, in that event, copies of the direction shall be sent immediately

by means that the registrar may determine to all persons named in the direction.

Section 13.4 of the Act is repealed and the

following substituted:

Protection of

trust funds

13.4

(1) Where

the registrar believes that the business of a seller is neglected to the

prejudice of a person or that the interests of the clients of the seller are

not being protected or that the seller has converted trust funds, the registrar

may act as trustee or, by order, appoint a person to act as trustee to take

possession of property or an undertaking in the possession of or under the

control of the seller for the purpose of preserving, carrying on or winding up

the business of the seller.

(2) The registrar shall deliver to the seller a

copy of his or her decision to act as trustee or the order appointing a person

to act as trustee under subsection (1).

(3) The registrar or a person appointed under

subsection (1) shall be the trustee in respect of a trust property of the

seller and shall in respect of that trust property take the place of a personal

representative, committee or other representative of the seller.

(4) A seller may appeal to the Trial Division in

accordance with the Rules of the Supreme

Court, 1986 , from the decision of the registrar to act as trustee or an

order made by the registrar appointing a person as trustee within 30 days after

the delivery of a copy of the decision or order to the seller.

(5) The registrar may, in an order appointing a

person as trustee under subsection (1), make provision for the remuneration,

disbursements and indemnification of the trustee out of that money or otherwise

as the registrar may specify.

Section 16.1 of the Act is repealed and the

following substituted:

Limitation period

16.1 A

prosecution under this Act and the regulations shall not be started more than 2

years from the date the offence was discovered by the registrar.

16. The Act is amended by adding immediately after

section 16.1 the following:

Immunity of registrar

16.2 An

action or other proceeding for damages shall not be instituted against the

registrar or any of his or her employees, agents or delegates for

an act done

in good faith in the performance of a duty or in the exercise or the intended

exercise of a power under this Act or the regulations, or for a neglect or

default in the performance or exercise in good faith of that duty or power.

17. (1) Subsection 17(1) of the Act is

repealed and the following substituted:

Transitional

(1) Notwithstanding

that a seller entered into a prepaid funeral contract before the coming into

force of this Act, that seller shall, not later than a time required by the

regulations,

(

a) provide to the registrar an audited statement

and record of those prepaid funeral contracts entered into before the coming

into force of this Act for which no funeral goods or funeral services have been

provided; and

(

b) pay into the trust account required under

section

6 an amount of money determined in accordance with the amount of outstanding

prepaid funeral contract liability of the seller immediately before the coming

into force of this Act.

(2) Subsection 17(3) of the Act is repealed and

the following substituted:

(3) Notwithstanding subsections (1) and (2), the

registrar may, where, due to the extenuating circumstances of the seller, the

registrar is of the opinion that payment into the trust account as required

under

section 6 and this

section would cause unusual hardship to the seller,

vary the amount of money to be paid into the trust account and extend the time

required to make the payments into the trust account.

Transitional

18. Nothing in this Act affects a licence issued,

action taken or an appointment, direction or order made by the minister before

the coming into force of this Act and the registrar may vary, enforce, suspend

or otherwise deal with those licences, actions, appointments, directions and orders

as though they were made, taken or issued by the registrar after the coming

into force of this Act.

Queen's Printer