Second Session,

46th General Assembly

58 Elizabeth II,

BILL 22

AN ACT RESPECTING CONSUMER PROTECTION AND

BUSINESS PRACTICES

Received

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

11, 2009

Second

Reading ........................................................................ May 21, 2009

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

Amendment

May 25, 2009

Third

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

Royal

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

HONOURABLE KEVIN

O'BRIEN

Minister of

Government Services

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would consolidate the law

respecting consumer protection and business practices.

A BILL

AN ACT RESPECTING CONSUMER PROTECTION AND BUSINESS PRACTICES

Analysis

Short title

PART

DEFINITIONS AND APPLICATION

Definitions

Waiver

PART

ADMINISTRATION

Director and assistant director

Powers and duties of director

Fees and forms

PART

III

UNFAIR PRACTICES

Unfair consumer practices

Unconscionable acts

Prohibition

Remedies of consumers

Definitions

Court may reopen transaction

Exercise of powers of court

Burden of proof

Factors to be considered by court

Relief in Trial Division

Saving genuine holder for value and

existing jurisdiction

PART

UNSOLICITED GOODS AND SERVICES AND CREDIT CARDS

Definitions

Unsolicited goods or services

Material change considered unsolicited

Consumer's remedy

Credit arrangements

PART

CONSUMER CONTRACTS

Definition

Content of contract

Cancellation rights

Cancellation of contract

Restriction on enforcement of contract

Definition

Disclosure of information

Distance sales contract in electronic

form

Copy of distance sales contract

Cancellation of distance sales contract

Refunds by supplier on cancellation

Return of goods by consumer on

cancellation

Consumer's recourse regarding credit

card charges

PART

CREDIT REPORTS

Definitions

Application of

Part

Disclosure of consumer report

Contents of consumer report

Credit report

Personal information

Disclosure of file to consumer

Alteration of consumer information

Sale of files

PART

VII

COST OF CONSUMER CREDIT DISCLOSURE

Interpretation

Application

Delivery of disclosure statements

Disclosure

Delivery

Insurer

Cancellation of optional services

Prepayment of credit

Default charges

Invitation to defer payment and

acceleration clause

Non-business credit grantors

Business credit grantors

Application

Advertising

Advertising interest-free periods

Disclosure statements

Interest change disclosure

Increases in outstanding principal

Amendments

Mortgage renewal disclosure

Application

Advertising

Interest free periods

Open credit disclosure

Statements of account

Transaction description

Credit card by application

Application for credit card

Additional credit card disclosure

Limitation of liability

Application

Advertising requirements

Disclosure

Maximum liability for residual

obligation lease

Interpretation

Recovery of overpayments and

compensation

Remedies

Assignee

Regulations

PART

VIII

LICENCES

Definitions

Licence required

Denial of licence

Suspension and cancellation of a licence

Production of licence

Certificate of registrar

Address for service

Notice of change

Annual return

Registration continues

Exception to licensing requirement

Bonds

PART

INVESTIGATION AND ENFORCEMENT

Investigations

Proof of documents

Freezing orders

Receiving order

Compliance

Compliance orders

Director's actions

Actions on behalf of consumer

Interim injunction

PART

REGULATIONS

Regulations

PART

APPEALS

Appeals

Evidence

PART

XII

OFFENCE

Offences

PART

XIII

CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transitional

RSNL1990 cM-18 and CNLR 1006/96 Amdt.

Acts Repealed

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Consumer

Protection and Business Practices Act.

PART I

DEFINITIONS AND APPLICATION

Definitions

2. In

this Act

(a) "consumer" means a natural person

acting for personal, family or household purposes but does not include a person

who is acting for business purposes;

(b) "consumer transaction" means

an act

or instance of conducting business or other dealings with a consumer including

an agreement between a supplier and a consumer in which the supplier agrees to

supply goods and services for payment;

(c) "credit" means the advancing of

money, goods or services to or on behalf of another for repayment at a later

time, whether or not there is a cost of borrowing, and includes variable

credit;

(d) "director" means the Director of Consumer

Protection and Business Practices appointed under

section 4 ;

(e) "goods" means personal property or a

right or interest in personal property that is used or ordinarily used

primarily for personal, family or household purposes including personal

property that becomes fixtures subsequent to a consumer transaction but does

not include securities as defined in the Securities

Act ;

(f) "judge" means a judge of the Trial

Division;

(g) "licence" means a licence issued or

renewed under this Act;

(h) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(i) "services" means services provided

to a consumer for primarily personal, family or household purposes including

(

i) for the maintenance or repair of goods or real

property owned by a consumer,

(ii) in conjunction with the use of social, recreational

or physical fitness facilities,

(iii) in respect of the movement, transport or storing

of goods, or

(iv) for educational purposes; and

(j) "supplier" means a person who in the

course of his or her business offers or advertises the sale of goods or

services to a consumer or who engages in a consumer transaction with a consumer

and includes the assignee of the rights and obligations of a supplier.

Waiver

(1) A

waiver or release by a person of the person's rights, benefits or protection

under this Act or regulations is void.

(2) Subsection (1) does not apply to a release

made by a person to settle a dispute.

PART II

ADMINISTRATION

Director and assistant

director

(1) The

minister shall appoint a Director of Consumer Protection and Business Practices.

(2) The minister may appoint an Assistant Director

of Consumer Protection and Business Practices who, in the absence or incapacity

of the director, shall perform the functions and exercise the powers of the

director.

Powers and duties

of director

(1) The

powers and duties of the director are

(

a) to exercise the powers and perform the duties

conferred or imposed on him or her under this Act;

(

b) to receive and act on complaints respecting

consumer transactions;

(

c) to make inquiries, gather information and

attempt to mediate or resolve complaints between a consumer and a supplier;

(

d) to publish reports respecting the enforcement

and administration of this Act; and

(

e) to inform consumers and suppliers of this Act.

(2) The director, in the performance of his or her

duties and responsibilities under this Act has the powers of a commissioner

under the Public Inquiries Act, 2006 .

Fees and forms

6. The

minister may approve forms and set fees for the purpose of this Act.

PART III

UNFAIR PRACTICES

Division 1

Consumer Practices

Unfair consumer practices

(1) In

this Part, an unfair business practice is a representation, conduct or failure

to disclose material facts that has the effect, or might reasonably have the

effect, of deceiving or misleading a consumer, and includes

(

a) a representation that the goods or services

have sponsorship, approval, performance characteristics, accessories, ingredients,

quantities, components, uses or benefits that they do not have;

(

b) a representation that the supplier has

sponsorship, approval, status, affiliation or connection that he or she does

not have;

(

c) a representation that the goods or services

are of a particular standard, quality or grade where they are not;

(

d) a representation that the goods are of a

particular style, model or origin where they are not;

(

e) a representation that the goods have been used

to an extent that is different from their actual use;

(

f) a representation that the goods are new or

unused where they are not or where they are reconditioned, reclaimed, altered

or deteriorated;

(

g) a representation that the goods have a

particular prior history or use where they have not;

(

h) a representation that the goods or services

have been made available in accordance with a previous representation where

they have not;

(

i) a representation that the goods or services

are available, or are available at a reduced price, for a reason that is different

from the fact;

(

j) a representation that the goods or services

have been supplied in accordance with a previous representation, where they

have not;

(

k) a representation that the goods or services

are available when the supplier knows or ought to know that they are not or has

no intention of supplying them;

(

l) a representation that a specific price

advantage exists where it does not;

(

m) a representation that a part, replacement,

repair or adjustment is needed where it is not;

(

n) a representation that repairs have been made

or parts installed where that is not the case;

(

o) a representation that the supplier is

soliciting or communicating with consumers with a certain interest or purpose

where he or she is not;

(

p) a representation that a consumer transaction

involves or does not involve rights, remedies or obligations where that representation

is deceptive or misleading;

(

q) a representation such that a consumer might

reasonably conclude that the goods are available in greater quantities than are

in fact available from the supplier;

(

r) a representation as to the authority of a

salesperson, representative, employee or agent to negotiate the final terms of

a consumer transaction where the representation is not accurate;

(

s) the giving of an estimate or evaluation of the

price of goods or services that is materially less than the price subsequently

determined or demanded, where the supplier has proceeded with the performance

of the consumer transaction without the express prior consent of the consumer;

(

t) the giving of less prominence in an

advertisement or display to the total price of goods or services than to the

price of a part of the goods or services;

(

u) the giving of less prominence in a

representation, advertisement or display to the amount of an instalment to be

paid for goods or services than to the total price of the goods or services;

(

v) a representation that goods or services are

free when that is not the case; and

(

w) a representation using exaggeration, innuendo

or ambiguity as to a material fact.

(2) An unfair business practice may occur before,

during or after a consumer transaction notwithstanding that the consumer transaction

is not completed or a consumer has not suffered loss or damage.

(3) With the exception of paragraphs (1)(

t) and

(u), subsection (1) does not apply to a supplier who, on behalf of another

supplier, broadcasts by radio or television, or prints, publishes or

distributes an advertisement that he or she has accepted in good faith.

Unconscionable

acts

(1) In

determining whether

an act or practice is unconscionable the court shall

consider the circumstances that the supplier knew or ought to have known,

including

(

a) that at the time the consumer transaction was

entered into there was no reasonable probability of full payment of the

purchase price by the consumer;

(

b) that the consumer was unable to receive a

substantial benefit from the consumer transaction;

(

c) that at the time the consumer transaction was

entered into the price grossly exceeded the price at which similar goods or

services were available to similar consumers;

transaction were so one-sided, harsh or adverse to the consumer as to be

inequitable;

(

e) that the supplier used trickery or undue

pressure in order to induce the consumer to enter into the consumer

transaction; or

(

f) that the supplier took advantage of the

extreme necessity or helplessness of the consumer or the inability of the

consumer to protect his or her interests because of his or her physical or

mental disability, his or her ignorance, illiteracy, age or emotional state, or

his or her inability to understand the character, nature or language of the

consumer transaction.

(2) An unconscionable act or practice may occur before,

during or after a consumer transaction.

Prohibition

(1) A

person shall not engage in an unfair business practice or unconscionable act or

practice.

(2) Where it is alleged that a supplier is

engaging in or has engaged in an unfair business practice or an unconscionable

act or practice, the burden of proof that the supplier is not engaging in or

has not engaged in an unfair business practice or an unconscionable act or practice

rests with the supplier.

Remedies of consumers

(1) Where

a consumer has entered into a transaction with a supplier and has suffered

damages as a result of an unfair business practice or unconscionable act or

practice, he or she may start an action in a court against the supplier.

(2) In an action started under this section, or in

another action concerning a supplier where it appears to the court that an

unfair business practice or unconscionable act or practice has occurred, the

court may

(

a) make an order declaring the act or practice to

be an unfair business practice or unconscionable act or practice;

(

b) award damages for a loss suffered including

exemplary or punitive damages;

(

c) make an order rescinding the transaction;

(

d) grant an interim or permanent injunction

restraining the supplier from continuing the unfair business practice or unconscionable

act or practice;

(

e) reopen the transaction and repay the amount

paid to the supplier by the consumer or relieve the consumer from the payment

of an amount in excess of the amount judged by the court to be a fair price for

the transaction; and

(

f) make other directions and grant other relief

that the court considers appropriate.

(3) Where a consumer begins an action under this

section he or she shall serve the director with a copy of the statement of

claim and upon the request of the director to the court the director shall be

added as a party to the action.

(4) Nothing in this

section limits a remedy a

consumer may have with respect to a transaction under the common law or another

Part.

Division 2

Relief from Unconscionable Transactions

Definitions

11. In

this Division

(a) "cost of the loan" means the whole

cost to the debtor of money lent and includes interest, discount, subscription,

premium, dues, bonus, commission, brokerage fees and charges, but not actual

lawful and necessary disbursements made to the Registrar of Deeds, the

Registrar of the Supreme Court, the sheriff or a city or a town clerk of a

municipality;

(b) "creditor" includes the person

advancing money lent and the assignee of a claim arising or security given in

respect of money lent;

(c) "debtor" means a person to whom or

on whose behalf money lent is advanced, and includes a surety and endorser or

other person liable for the repayment of money lent or upon an agreement or

collateral or other security given in respect of it; and

(d) "money lent" includes money advanced

on behalf of a person in a transaction which, whatever its form may be, is substantially

one of money-lending or securing the repayment of money so advanced and

includes a mortgage.

Court may reopen

transaction

12. Where,

in respect of money lent, a judge finds that having regard to the risk and to

the circumstances, the cost of the loan is excessive and that the transaction

is harsh and unconscionable the judge may

(

a) reopen the transaction and take an account

between the creditor and the debtor;

(

b) notwithstanding a statement or settlement of

account or an agreement purporting to close previous dealings and create a new

obligation, reopen an account already taken and relieve the debtor from payment

of a sum in excess of the sum determined by the judge to be fairly due in

respect of the principal and the cost of the loan;

(

c) order the creditor to repay the excess where

it has been paid or allowed on account by the debtor; and

(

d) set aside either wholly or in part or revise

or alter a security given or agreement made in respect of the money lent, and,

where the creditor has parted with the security, order the creditor to

indemnify the debtor.

Exercise of

powers of court

13. The

powers conferred by

section 12 may be exercised

in an action or proceeding

(

a) by a creditor for the recovery of money lent;

(

b) by the debtor notwithstanding a provision or

agreement to the contrary and notwithstanding that the time for repayment of

the loan or an instalment of it has not arrived; or

(

c) in which the amount due or to become due in

respect of money lent is in question.

Burden of proof

14. In

an action taken under this Division the burden of proof is on the creditor to

establish that having regard to the risk and to the circumstances the cost of

the loan is not excessive and is not harsh and unconscionable.

Factors to be

considered by court

(1) In

determining whether the cost of a loan is excessive a judge shall consider

(

a) the interest rates prevailing at the time the

loan was entered into for loans of a similar nature, including the prime rate

of interest charged by the chartered banks to their most credit-worthy

customers;

(

b) the degree of risk assumed by the creditor;

and

(

c) the cost of a similar loan to a debtor in

similar circumstances.

(2) In determining whether the transaction is

harsh and unconscionable a judge shall consider

(

a) whether the debtor was unable to protect his

or her own interests because of physical or mental disability, age, illiteracy,

ignorance or inability to understand the nature of the lending transaction;

(

b) whether the debtor was subject to undue

pressure to enter into the lending transaction; or

(

c) whether, at the time the loan was entered

into, there was no reasonable probability of full payment of the principal

amount of the loan and the cost of the loan.

Relief in Trial

Division

16. In

addition to a right that a debtor may have under this or another Division or

otherwise in respect of money lent, the debtor may apply for relief under this Division

to a judge and the judge on the application may exercise the powers of the

court under

section 12 .

Saving genuine

holder for value and existing jurisdiction

17. Nothing

in this Division affects the rights of a genuine assignee or holder for value

without notice or derogates from the existing powers or jurisdiction of a judge.

PART IV

UNSOLICITED GOODS AND SERVICES AND CREDIT CARDS

Definitions

18. In

this Part, "unsolicited goods" means personal property provided to a

person who did not request it, but does not include

(

a) personal property that the recipient knows or

ought to know is intended for another person, or

(

b) personal property supplied under a written

contract to which the recipient is a party that provides for the periodic

supply of personal property to the recipient without further solicitation,

and a request for goods shall not be

inferred from inaction or the passing of time alone.

Unsolicited

goods or services

(1) A consumer does not have a legal

obligation in respect of unsolicited goods or services unless and until the

consumer expressly acknowledges to the supplier in writing his or her intention

to accept the goods or services.

(2) Unless

the consumer has given the acknowledgment referred to in subsection (1), the

supplier does not have a cause of action for a loss, use, misuse, possession,

damage or misappropriation in respect of the goods or services or the value

obtained by the use of the goods or services.

(3) Where

it is alleged that the supplier supplied unsolicited goods or services, the

burden of proof that the goods or services were not unsolicited is on the

supplier.

Material change considered unsolicited

(1) Where a consumer is receiving goods or

services on an ongoing or periodic basis and there is a material change in the

goods or services, the goods or services shall be considered to be unsolicited

from the time of the material change forward unless the supplier is able to

establish that the consumer consented to the material change.

(2) A

supplier may rely on a consumer's consent to a material change that is made

orally, in writing or by other affirmative action but the supplier shall bear

the onus of proving the consumer's consent.

Consumer's remedy

(1) A consumer who pays for unsolicited

goods or services may give to the supplier a demand, in writing, for a refund

from the supplier within 60 days after the consumer first received the goods or

services where the consumer did not expressly acknowledge to the supplier in

writing his or her intention to accept the goods or services.

(2) A

demand is sufficient if it indicates, in any way, the intention of the consumer

to demand a refund of a payment made for unsolicited goods or services.

(3) Where

a supplier receives a demand for a refund, the supplier shall refund to the

consumer, within 15 days after the supplier received the demand, all money

received in respect of the unsolicited goods or services.

Credit

arrangements

(1) An

action shall not be brought against a person upon an arrangement for the

extension of credit evidenced by a credit card unless the person to whom credit

is extended requested or accepted the credit arrangement and card in writing.

(2) The use of a credit card by a person whose name

appears on the credit card shall be considered to constitute written acceptance

by the person of the card and the terms of credit.

PART V

CONSUMER CONTRACTS

Division 1

Direct Sales Contracts

Definition

23. In

this Division and

Part VIII, "direct sales contract" means an agreement

between a consumer and a supplier that is negotiated or concluded in person at

a place other than

(

a) the supplier's place of business; or

(

b) a market place, an auction, trade fair,

agricultural fair or exhibition.

Content of

contract

(1) A

written contract shall include

(

a) the consumer's name and address;

(

b) the supplier's name, business address,

telephone number and, where applicable, fax number;

(

c) where applicable, the salesperson's name;

(

d) the date and place of the contract;

(

e) a description of the goods and services,

sufficient to identify them;

(

f) a statement of cancellation rights that

conforms with the requirements of the regulations;

(

g) itemized prices of the goods or services, or

both;

(

h) the total amount of the contract;

(

i) the terms of payment;

(

j) in the case of a contract for the future

delivery of goods, future provision of services or goods together with

services, the delivery date for the goods or start date for the services or

both;

(

k) in the case of a contract for the future

provision of services or goods together with services, the completion date for

supplying the services or the goods together with services;

(

l) subject to subsection (2), where credit is

extended

(

i) a statement of any security taken for payment,

and

(ii) the cost of credit in accordance with

Part VII ;

(

m) where goods are taken in trade, a description

of and the value of the trade-in; and

(

n) the signatures of both parties.

(2) Where credit is extended or arranged by the supplier

and the credit contract is separate from or attached to the direct sales contract,

the credit contract is conditional on the direct sales contract and where the

direct sales contract is cancelled, that cancellation has the effect of

cancelling the credit contract.

(3) Upon entering into a direct sales contract

with a purchaser

(

a) a supplier shall furnish his or her address;

and

(

b) a salesperson of a supplier shall furnish the supplier's

and his or her own address

in writing to that purchaser.

(4) A provision in a written direct sales contract

to the effect that that contract contains the entire agreement entered into

between the parties shall not prevail over oral representations made by the

salesperson or supplier with the intent or effect of inducing the purchaser to

enter into the contract.

(5) A supplier or salesperson shall, immediately

upon receiving a payment under a direct sales contract, deliver to the

purchaser a written receipt.

Cancellation

rights

25. A

statement of cancellation rights shall comply with the requirements of the

regulations.

Cancellation of

contract

(1) A

direct sales contract may be cancelled

(

a) within 10 days after a copy of the contract is

received; or

(

b) within one year from the date of entering the

contract where

(

i) the supplier does not comply with legislative

or regulatory requirements regarding licensing or registration, including

financial security requirements or conditions on his or her licence or

registration at the time the contract was made, within 30 days of the date

stated in the contract, or where the goods or services have not been received,

unless delivery has been accepted after the 30 days have passed,

(ii) the supplier does not meet the requirements

for the content of the contract as specified in subsection 24 (1), or

(iii) within 30 days of the supply date specified in

the contract, or the amended supply date agreed upon, the service has not

started or the goods and services have not been received and delivery has not

been accepted, after the 30 days have lapsed.

(2) Where a direct sales contract is cancelled,

the supplier shall, within 15 days of the cancellation, refund to the consumer

all money and return to the consumer any trade-in or an amount equal to the

value of the trade-in received under the contract.

(3) In the case of a contract respecting goods,

the consumer shall, upon receiving the refund and return of the trade-in, or an

amount equal to the value of the trade-in, return the goods to the supplier.

(4) Cancellation of a contract shall be by notice

and a notice of cancellation is adequate if, however expressed, it indicates

the intention of the consumer to cancel the contract.

(5) Where a consumer cancels a direct sales

contract, the consumer shall send or deliver the cancellation notice to the supplier

using a method where the consumer can provide evidence he or she cancelled the

contract and the date on which this occurred, including registered mail, fax or

personal delivery.

(6) Where a method of sending or delivering the

cancellation notice other than personal delivery is used, the cancellation is

considered to be given when sent.

(7) A breach of an administrative requirement that

does not affect a consumer's interests shall not result in extended

cancellation rights.

(8) These provisions do not affect another remedy

or right the consumer may have at law.

Restriction on

enforcement of contract

27. An

action shall not be brought by a supplier against a purchaser for the

enforcement of a direct sales contract unless the supplier was licensed, under

this Act, at the time that the purchaser entered into the contract.

Division 2

Distant Sales Contracts

Definition

28. In

this Division, "distant sales contract" means a contract for the supply

of goods or services between a supplier and a consumer that is not entered into

in person and, with respect to goods, for which the consumer does not have the

opportunity to inspect the goods that are the subject of the contract before

the contract is entered into, but does not include a prepaid purchase card.

Disclosure of information

(1) A supplier shall disclose the

following information to a consumer before the consumer enters into a distance

sales contract:

(

a) the

information referred to in

section 24 ;

(

b) if

available, the supplier's electronic mail address;

(

c) a

detailed description of the goods or services to be supplied under the

contract, including relevant technical or system specifications;

(

d) the

currency in which amounts owing under the contract are payable;

(

e) the

supplier's delivery arrangements, including the identity of the shipper, the

mode of transportation and the place of delivery to the consumer;

(

f) the supplier's cancellation, return, exchange and refund policies;

and

(

g) other

prescribed information.

(2) The

supplier shall disclose the information required under subsection (1) in a

clear and comprehensible manner.

Distance sales contract in electronic form

(1) In this section,

"electronic" has the same meaning as in the Electronic Commerce

Act .

(2) Before

a consumer enters into a distance sales contract that is in electronic form, a

supplier shall

(

a) make

the information required under

section 29

available in a manner that

(

i) requires the consumer to access the information, and

(ii) allows the consumer to retain and print the information; and

(

b) provide

a consumer with an express opportunity

(

i) to correct errors in the contract, and

(ii) to accept or decline the contract.

Copy of distance sales contract

(1) A

supplier shall give a consumer who enters into a distance sales contract a copy

of the contract within 15 days after the contract is entered into.

(2) The

copy of the distance sales contract given under subsection (1) shall contain

(

a) the

information described in

section 29 ,

(

b) the

consumer's name, and

(

c) the

date the contract was entered into.

(3) A

supplier may give a copy of a distance sales contract to a consumer

(

a) by

sending the copy by electronic mail to the electronic mail address provided by

the consumer to the supplier for the provision of information related to the

contract, or

(

b) by

giving the copy by another manner that enables the supplier to prove that the

consumer has received and retained the copy.

(4) A

copy of the distance sales contract given in accordance with paragraph (3)(

a) is considered to be received on the third day after it is sent.

Cancellation of distance sales contract

(1) A consumer may cancel a distance sales

contract by giving notice of cancellation to the supplier

(

a) not

later than 10 days after the date that the consumer receives a copy of the

contract where

(

i) the supplier does not comply with

section 30 ,

(ii) the contract does not comply with

section 31 ,

(

b) not

later than 30 days after the date that the contract is entered into where the

supplier does not provide the consumer with a copy of the contract in

accordance with subsection 31 (1),

(

c) before

the goods or services are delivered where the goods or services to be delivered

under the contract are not delivered to the consumer within 30 days of the

supply date, or

(

d) before

the goods or services are delivered where the supply date is not specified in

the contract and the supplier does not deliver the goods or services within 30

days from the date the contract is entered into.

(2) Where

a distance sales contract is cancelled under subsection (1), the following are

also cancelled:

(

a) another

related consumer transaction;

(

b) a

guarantee given in respect of the total price under the contract;

(

c) security

given by the consumer in respect of the total price under the contract; and

(

d) where

credit is extended or arranged by the supplier in respect of a distance sales

contract, the credit agreement, whether or not the credit agreement is a part

of or attached to the distance sales contract.

Refunds by supplier on cancellation

33. Where a distance sales contract is cancelled

under

section 32 , the supplier, within 15 days

after the notice of cancellation has been given, shall refund to the consumer,

without deduction, all money received in respect of the contract and in respect

of a related consumer transaction, whether received from the consumer or

another person.

Return of goods by consumer on cancellation

(1) Where a distance sales contract is

cancelled under

section 32 , the consumer, within

15 days after the notice of cancellation has been given or after the goods have

been delivered to the consumer, whichever is later, shall return goods received

under the contract by delivering the goods to the person or place named in the

contract as the person to whom or as the place where notice of cancellation may

be given.

(2) The

consumer shall return the goods unused and in the same condition as that in

which they were delivered.

(3) The

consumer may return the goods by a method that permits the consumer to produce

confirmation of the delivery to the supplier.

(4) The

supplier shall accept the goods returned under subsection (2).

(5) The

supplier is responsible for the reasonable cost of returning the goods.

(6) Goods

that are returned by the consumer other than by delivery in person are

considered to have been returned at the time the goods are sent.

Consumer's recourse regarding credit card charges

(1) A consumer who has charged to a credit

card all or a part of the total price under a distance sales contract or a

related consumer transaction may request the credit card issuer to cancel or

reverse the credit card charge and associated interest or other charges where

the consumer has cancelled the contract under

section 32

and the supplier has not refunded all money as required under

section 33 .

(2) The

request under subsection (1) shall contain the following information:

(

a) the

supplier's name;

(

b) the

date the distance sales contract was entered into;

(

c) the

amount charged to the credit card in respect of the distance sales contract and

a related consumer transaction;

(

d) a

description of the goods or services sufficient to identify them;

(

e) the

reason for cancellation of the distance sales contract; and

(

f) the date and method of cancellation of the distance sales contract.

(3) The

credit card issuer shall

(

a) acknowledge

the consumer's request within 30 days of receiving it, and

(

b) if

the request meets the requirements of subsection (2), cancel or reverse the

credit card charge and any associated interest or other charges within the

earlier of

(i) 2 complete billing cycles of the credit card issuer, and

(ii) 90 days.

PART VI

CREDIT REPORTS

Definitions

36. In

this Part

(a) "credit information" means

information about an individual's credit, including the individual's name, age,

place of residence, previous places of residence, marital status, spouse's name

and age, number of dependants, particulars of education or professional

qualifications, place of employment, previous places of employment, estimated

income, paying habits, outstanding debt obligations, cost of living, or obligations

and assets;

(b) "credit reporting agency" means a

person who is engaged in providing credit reports to another person, whether

for remuneration or otherwise; and

(c) "report" means a written, oral or

other communication respecting credit information of an individual.

Application of

Part

37. This

Part does not apply to a credit reporting agency, the reports of which deal

only with industrial or commercial enterprises and are distributed only to

those enterprises.

Disclosure of

consumer report

(1) A

credit reporting agency shall not provide a credit report except

(

a) in response to an order of a court;

(

b) in accordance with the written instructions of

the consumer to whom the credit report relates;

(

c) in response to an order or direction made

under this Part;

(

d) with the prior consent of the consumer to whom

the credit report relates, to a person that it has reason to believe

(

i) is involved in a business or credit

transaction with the consumer, or

(ii) intends to use the credit report for

employment purposes; or

(

e) to the government of the province or of Canada ,

or to a peace officer acting in the course of his or her duties.

(2) A person shall not seek to obtain a credit report

from a credit reporting agency except for the purposes set out in subsection

(1).

Contents of consumer

report

(1) A

credit report shall not contain

(

a) information of an unfavourable personal nature

unless reasonable efforts have been made to corroborate the information, the

absence of the corroboration is noted and accompanies the information, and the

information is less than 7 years old;

(

b) information as to judgments or judicial

proceedings for the recovery of money owing for goods or services, or based

upon default under a conditional sale contract or mortgage or chattels or

realty, 7 years after the default first occurred or the judgment was given;

(

c) information as to bankruptcies 7 years from

the date of a discharge, except where a consumer has been bankrupt more than

once;

(

d) information as to debt 6 years after it has

become due, unless the debt has been acknowledged by the debtor or the debtor's

agent either in writing or by making part payment or partial satisfaction of

the debt, in which case the 6 year period runs from the date of the most recent

acknowledgment of the debt;

(

e) information as to the non-payment of taxes or

lawfully imposed fines 7 years after they have become due;

(

f) information as to convictions for crimes 7

years from the date of conviction or, where the conviction resulted in imprisonment,

7 years from the date of release or parole, but convictions for crimes shall

not be reported after a full pardon has been granted;

(

g) information as to criminal charges where those

charges have been dismissed or not proceeded with;

(

h) information as to race, religion, sex,

political opinion, colour, or ethnic, national or social origin;

(

i) information as to writs that are more than 7

years old;

(

j) information as to writs that have been issued

more than one year before the making of the credit report, unless the credit reporting

agency has ascertained the current status of the writ and has a record of its

current status in the credit report; or

(

k) other information as prohibited by the

regulations.

(2) A credit reporting agency shall not collect,

store, retain or report credit information unless it is capable of

corroboration from another source, and a reference to that source appears in

the records of that agency.

(3) A credit reporting agency shall not collect,

store, retain, or report personal information unless it has made reasonable

efforts to corroborate the evidence on which the personal information is based

and a lack of corroboration is noted with the personal information and

accompanies a consumer report including the personal information.

(4) A credit reporting agency shall not include in

a credit report information other than the information stored in a form producible

under

section 42 .

Credit report

40. Where

the credit risk of a consumer is being assessed by a person, that person shall,

upon the request of the consumer, inform the consumer if a credit report has

been obtained and the name of the credit reporting agency.

Personal information

41. A

person shall not procure or prepare a credit report containing personal

information from a credit reporting agency unless that person notifies the

consumer in writing of his or her intention to procure or prepare the report,

together with the name and address of the credit reporting agency.

Disclosure of

file to consumer

(1) A

credit reporting agency, during normal business hours, upon the request of a

consumer, and without charge,

(

a) shall disclose to the consumer whether or not

it has collected or retains credit information respecting him or her;

(

b) shall produce for examination in written form,

clearly understandable to the consumer, the contents of all the credit information;

and

(

c) shall disclose the names of the recipients of

a credit report and the contents of the report, made within a period of one

year before the request.

(2) The credit reporting agency concerned shall

permit a person to whom credit information is disclosed under subsection (1) to

make a copy.

Alteration of

consumer information

(1) The

director may direct the alteration, amendment, restriction or prohibition of

the use of credit information that in his or her opinion is inaccurate or does

not comply with this Part, and the credit reporting agency concerned shall

comply with the director's direction under this section.

(2) Where a credit reporting agency is directed to

alter or amend credit information under subsection (1) or alters or amends incorrect

credit information without a direction from the director, the credit reporting

agency shall notify all persons who have been supplied with the credit report

within one year before the alteration or amendment.

Sale of files

44. A

person who is or has been a credit reporting agency shall not sell or lease its

files except to a credit reporting agency registered under this Part.

PART VII

COST OF CONSUMER CREDIT DISCLOSURE

Interpretation

(1) In

this Part

(a) "advance" and "advanced"

means value received in accordance with subsection (2);

(b) " APR " means the

annual percentage rate calculated in accordance with the regulations;

(c) "associate", where used to indicate

a relationship with a person means

(

i) a corporation of which that person

beneficially owns or controls, directly or indirectly, shares or other securities

currently convertible into shares, that carry more than 10% of the voting

rights

(

A) under all circumstances,

(

B) because of the occurrence of an event that has

occurred and is continuing, or

(

C) because of a currently exercisable option or

right to purchase those shares or those convertible securities,

(ii) a partner of that person acting on behalf of

the partnership of which they are partners,

(iii) a trust or estate in which that person has a

substantial beneficial interest or in respect of which he or she serves as

trustee or in a similar capacity,

(iv) a spouse or child of that person, or

(

v) a relative of that person or of his or her

spouse where that relative has the same residence as that person;

(d) "assumed residual payment" means

(

i) for a lease that is neither an option lease

nor a residual obligation lease, the estimated residual value,

(ii) for an option lease, the lesser of the

estimated residual value and the option price, assuming the option is exercised

at the end of the lease term, and

(iii) for a residual obligation lease, the estimated

residual cash payment plus the estimated residual value;

(e) "borrower" means an individual who

has entered into or who is negotiating to enter into a credit agreement if that

individual, under that agreement, receives or is to receive credit from another

party to the agreement, and

(

i) does not include a guarantor, and

(ii) in Divisions 1 and 6 includes a lessee;

(f) "brokerage fee" means an amount that

a mortgagor or other borrower pays or agrees to pay to a mortgagee or loan

broker as consideration for services in arranging, negotiating or facilitating

the granting of credit to the mortgagor or borrower and includes an amount that

(

i) deducted from the amount of credit that is

extended to the mortgagor or borrower under the credit agreement, and

(ii) paid to the mortgagee or loan broker by the

credit grantor;

(g) "business day", with respect to a

credit grantor, means a day on which the credit grantor is open for business;

(h) "capitalized amount" means the cash

value of the leased goods plus the amount of other advances made to the lessee

at or before the beginning of the term, minus the total amount of all payments

made by the lessee at or before the beginning of the term;

(i) "cardholder" means an individual who

is a borrower with respect to a credit card;

(j) "cash customer" means a person who

buys a product and who provides full payment for the product at or before the

time of its receipt;

(k) "cash price", with respect to a

product, means

(

i) for a sale to a borrower by a credit grantor

or by an associate of a credit grantor who sells the product to cash customers

in the ordinary course of business an amount that fairly represents the price

for which the seller sells that product to cash customers, or, if the seller

and the borrower agree on a lower price, that lower price,

(ii) for a sale to which subparagraph (

i) does not

apply, the price agreed upon by the parties, or

(iii) for an advertisement by a credit grantor or an

associate of the credit grantor, the price at which the product is currently

offered to cash customers or, if the credit grantor or the associate of the

credit grantor does not currently offer the product to cash customers, the

price stated in the advertisement, and

for the purpose of determining the amount

advanced under a credit agreement, includes discounts, taxes and other charges

payable by a cash customer;

(l) "cash value" of leased goods means

(

i) for a lease by a lessor who, in the ordinary

course of business sells the product to cash customers, the price for which the

lessor sells the product to cash customers, unless the parties have agreed to a

lower price,

(ii) for a lease by a lessor to whom paragraph (

a) does not apply, a reasonable estimate of the cash value of the goods, and

(iii) for an advertisement, the price for which the

advertiser currently offers to sell the product to cash customers or, if the

advertiser does not currently offer the product to cash customers, the price

stated in the advertisement;

(m) "credit agreement" includes an

agreement under which credit is extended that is

(

i) an agreement with respect to a loan of money,

a credit sale, a line of credit or a credit card,

(ii) a lease to which Divisions 1 and 6 apply, and

(iii) a renewal of an agreement referred to in

subparagraph (

i) or (ii);

(n) "credit card" means a card or other

device that can be used to obtain advances under a credit agreement for open

credit;

(o) "credit card issuer" means a person

who is a credit grantor with respect to a credit card;

(p) "credit grantor" means

(

i) a person who entered into or is negotiating to

enter into a credit agreement if that person, under that agreement, extends or

is to extend credit to another party to the agreement,

(ii) if the rights of the person referred to in

subparagraph (

i) under the credit agreement are assigned to an assignee, that

assignee, upon notice being given to the borrower,

(iii) a credit card issuer,

(iv) a mortgage broker and a loan broker, and

(

v) a lessor to whom Divisions 1 and 6 apply;

(q) "credit sale" means a sale of a

product in which the purchase is financed by the seller or manufacturer of the

product or by an associate of the seller or manufacturer;

(r) "default charge" means a charge

imposed on a borrower who fails to make a payment as it becomes due under a

credit agreement or who fails to comply with another obligation under a credit

agreement, but does not include interest on an overdue payment;

(s) "disbursement charge" means an

expense that is incurred by a credit grantor for the purpose of arranging,

documenting, insuring or securing a credit agreement and charged by the credit

grantor to the borrower that is

(

i) a fee paid to register a document or

information in, or to obtain a document or information from a public registry

of an interest in real or personal property,

(ii) the cost of professional services required for

the purpose of confirming the value, condition, location or conformity to law

of property that serves as security for a credit agreement if the borrower is

given a report signed by the person providing the professional services and is

free to give the report to third persons,

(iii) for a high ratio mortgage as defined by

regulation, a premium for insurance that protects the credit grantor against

the risk of borrower default and a fee for tax account maintenance, and

(iv) an expense designated by regulation as a

disbursement charge;

(t) "estimated residual cash payment"

means the amount that a lessee will be required to pay to a lessor at the end

of the term of a residual obligation lease if the realizable value of the

leased goods at the end of the term equals their estimated residual value;

(u) "estimated residual value" means the

reasonable estimate, made by the lessor at the time the lease agreement was entered

into, of the wholesale value of the leased goods at the end of the term;

(v) "fixed credit" means credit under a

credit agreement that is not for open credit;

(w) "floating rate" means an interest

rate that bears a specified mathematical relationship to an index rate that is

an interest rate

(

i) subject to a minimum or a maximum rate, or

(ii) determined at the beginning of a period and

applies throughout the period regardless of changes in the index rate during

the period;

(x) "grace period" means a period in

which interest accrues but will be forgiven if the borrower satisfies

conditions specified in the credit agreement;

(y) "implicit finance charge" for a

lease means the total of the periodic payments plus the assumed residual

payments and less the capitalized amount;

(z) "index rate" means, with respect to

a credit agreement, the rate that meets the criteria prescribed by regulation;

(aa) "individual" means a natural person;

(bb) "initial disclosure statement" means

with respect to a credit agreement or a lease, the disclosure statement that is

required under

section 47 for that credit

agreement or lease;

(cc) "interest" means charges that accrue

over time and are determined by applying a rate to an amount that is owing from

time to time under a credit agreement;

(dd) "interest-free period" means a

period following the making of an advance during which interest does not accrue

on the advance;

(ee) "lease" means an agreement for the

hire of goods, except an agreement for the hire of goods with respect to a

residential tenancy agreement;

(ff) "lessee" means an individual who

entered into or who is negotiating to enter into a lease if that individual,

under that lease, hires or is to hire goods from another party to the

agreement;

(gg) "lessor" means a person who entered

into or who is negotiating to enter into a lease if that person, under that

lease, leases or is to lease goods to another party to the agreement;

(hh) "loan broker" means a person who,

for compensation, arranges, negotiates or facilitates an extension of credit;

(ii) "mortgage broker" means a person

who, for compensation, arranges, negotiates or facilitates an extension of a

mortgage loan;

(jj) "mortgage loan" means a loan of

money secured by an interest in real property;

(kk) "non-interest finance charge" means

a charge that a borrower is required to pay with respect to a credit agreement,

other than

(

i) interest,

(ii) a prepayment charge,

(iii) a default charge,

(iv) a charge for an optional service,

(

v) a charge for a service referred to in

paragraph (2)(f), (

g) or (h), or

(vi) with respect to a credit sale, a charge that

would also be payable by a cash customer;

(ll) "open credit" means credit under a

credit agreement if the credit agreement

(

i) anticipates multiple advances that are to be

made when requested by the borrower in accordance with the agreement, and

(ii) does not establish the total amount to be

advanced to the borrower under the agreement although it may impose a credit

limit;

(mm) "option lease" means a lease that

gives the lessee the right to acquire title to or retain permanent possession

of the leased goods by making a payment in addition to the payments required

under the lease or by satisfying other specified conditions;

(nn) "option price" means the amount of

the additional payment that the lessee shall make in order to exercise the option

under an option lease;

(oo) "outstanding balance" means the

total amount owing at any particular time under a credit agreement;

(pp) "payment" means value given by a

borrower within the meaning of subsection (2);

(qq) "payment period" means one of the

intervals into which the term of a credit agreement or a lease is divided for

the purpose of determining the amount of and timing of payments;

(rr) "periodic payment" means a payment

that, under a credit agreement or a lease, is to be made with respect to each

payment period established under that agreement or lease;

(ss) "residual obligation lease" means a

lease under which the lessee may be required at the end of the lease term to

pay the lessor an amount based wholly or partly on the difference between the

estimated residual value and the realizable value of the leased goods;

(tt) "scheduled payments credit

agreement" means a credit agreement for fixed credit under which the

amount advanced is to be repaid in accordance with a specified

schedule of

payments and that

schedule may be subject to adjustment to accommodate

contingencies including changes in the interest rate;

(uu) "security interest" means an

interest in property that secures the borrower's obligations under a credit

agreement;

(vv) "spouse" means either of 2 persons who

(

i) are married to each other,

(ii) are married to each other by a marriage that

is voidable and has not been voided by a judgment of nullity, or

(iii) have gone through a form of marriage with each

other, in good faith, that is void and are cohabiting or have cohabited within

the preceding year;

(ww) "term", with respect to a lease,

unless the context indicates otherwise, means the period during which the

lessee is entitled to retain possession of the leased goods;

(yy) "total cost of credit" means the

difference between the value given or to be given within the meaning of

subsection (4) by the borrower with respect to a credit agreement and the value

received or to be received, within the meaning of subsection (2) by the

borrower with respect to the credit agreement, disregarding the possibility of

prepayment or default; and

(yy) "total lease cost" means the total

of non-refundable payments that the lessee will be required to make in the

ordinary course of events.

(2) The following constitute value received or to

be received by a borrower with respect to a credit agreement:

(

a) money transferred or to be transferred by the

credit grantor to the borrower or to the order of the borrower under the credit

agreement;

(

b) the cash price of a product purchased or to be

purchased under the credit agreement;

(

c) the amount of a pre-existing monetary

obligation of the borrower that is paid, discharged or consolidated by the

credit grantor under the credit agreement;

(

d) the cash value of goods under a lease;

(

e) the amount of money obtained or to be obtained

or the cash price of a product obtained or to be obtained through the use of a

credit card obtained under the credit agreement;

(

f) a following expense if the credit grantor

incurred or is to incur the expense for the purpose of arranging, documenting,

insuring or securing the credit agreement:

(

i) fees to a third party to record or register a

document or information in, or to obtain a document or information from, a

public registry of interest in real or personal property,

(ii) fees for professional services required for

the purpose of confirming the value, condition, conformity to law or location

of property that serves as security for a credit agreement, if the borrower is

given a report signed by the person providing the professional services and is

free to give the report to other persons,

(iii) premiums for

(

A) insurance that protects the credit grantor

against default on a high-ratio mortgage,

(

B) casualty insurance on the subject matter of a

security interest if the borrower is a beneficiary of the insurance and the

insured amount is the full insurable value of the subject matter, and

(

C) insurance provided or paid for by the credit

grantor with respect to a credit agreement if the insurance is optional, and

(iv) an application fee for insurance referred to

in clause (iii)(A);

(

g) service provided or to be provided by the

credit grantor to maintain a tax account on a high-ratio mortgage, expressed in

the amount of a reasonable fee for that service, whether the tax account is

required with respect to the credit agreement or is requested by the borrower;

and

(

h) anything designated under the regulations as

value received by the borrower for the purpose of this subsection.

(3) Notwithstanding subsection (2), the following

do not constitute value received or to be received by a borrower with respect

to a credit agreement unless they relate to an optional service, expense, service

or thing under paragraph (2)(

f) or (g):

(

a) money paid or to be paid, an expense incurred

or to be incurred or anything done or to be done by the credit grantor for the

purpose of arranging, documenting, securing, administering or renewing the

credit agreement;

(

b) insurance provided or paid for or to be

provided or paid for by the credit grantor with respect to the credit

agreement; and

(

c) another thing that may be prescribed by

regulation for the purpose of this subsection.

(4) The following constitutes value given or to be

given by a borrower with respect to a credit agreement:

(

a) money transferred or to be transferred from

the borrower to the credit grantor with respect to the credit agreement;

(

b) money transferred or to be transferred from

the borrower to a person other than the credit grantor with respect to a charge

for services that the credit grantor requires the borrower to obtain or pay for

with respect to the credit agreement, unless the charge

(

i) is for an expense to which paragraph (2)(

f) or

(

h) would have applied if the expense had been incurred initially by the credit

grantor and then charged directly to the borrower,

(ii) is for services provided by a lawyer chosen by

the borrower, or

(iii) is for charges for shares in a credit union

that a borrower shall buy as a condition of entering into a credit agreement

with the credit union; and

(

c) another thing that may be prescribed by

regulation for the purpose of this subsection.

Division 1

Application

Application

(1) This

Part applies to a

(

a) credit agreement where

(

i) the borrower is an individual who enters into

a credit agreement for primarily personal, family or household purpose, and

(ii) either

(

A) the credit grantor enters into the agreement

in the ordinary course of business, or

(

B) the credit agreement is arranged by a loan

broker; and

(

b) borrower, credit agreement, credit grantor or

loan broker or a class of borrowers, credit agreements, credit grantors or loan

brokers prescribed in the regulations.

(2) For the purpose of subparagraph (1)(a)(i), a

credit grantor is entitled to rely on a statement in a credit agreement or

other document regarding the purpose for which a borrower enters into a credit

agreement, if the statement is signed by the borrower and the credit grantor

believes in good faith that the statement is true.

(3) Notwithstanding subsection (1), this Part does

not apply to

(

a) a credit sale where all of the following

occur:

(

i) the credit sale anticipates a single payment

in the full amount for the product within a certain period after a written

invoice or statement of account is delivered to the buyer,

(ii) the credit sale is unconditionally

interest-free during the payment period referred to in subparagraph (i),

(iii) the credit sale is unsecured, apart from a

lien on the product that may arise by operation of law,

(iv) the credit sale is not assigned in the

ordinary course of the credit grantor's business otherwise than as security,

and

(

v) the credit sale does not provide for

non-interest finance charges; or

(

b) a borrower, credit agreement, credit grantor

or loan broker, or a class of borrowers, credit agreements, credit grantors or

loan brokers, exempted under the regulations.

Delivery of disclosure

statements

(1) A

credit grantor who has entered into or is negotiating to enter into a credit

agreement with an individual who is the borrower under that agreement shall

deliver to the borrower a disclosure statement with respect to that credit

agreement before the earlier of the date on which the borrower

(

a) enters into the credit agreement; or

(

b) makes a payment in connection with the credit

agreement.

(2) Notwithstanding subsection (1), a credit

grantor who has entered into or who is negotiating to enter into a credit

agreement to provide a mortgage loan to an individual who is the borrower under

that agreement shall deliver a disclosure statement with respect to that credit

agreement to the borrower in accordance with the regulations.

Disclosure

(1) A

credit grantor who is required to provide a disclosure statement or a statement

of account under this Part shall ensure that the statement

(

a) is in writing or another form that is

consented to, in writing by the borrower, and the credit grantor shall retain

that statement and consent as a record for future use;

(

b) contains the information required under this

Part; and

(

c) expresses that information clearly, concisely,

in a logical order and in a manner that is likely to bring the information to

the borrower's attention.

(2) A disclosure statement or a statement of

account may be a separate document or part of another document provided to the

borrower.

(3) Information disclosed under this Part whether

in a disclosure statement, advertisement or otherwise may be based on an

estimate or assumption if the

(

a) disclosure depends on information that is not

ascertainable by the credit grantor at the time of the disclosure; and

(

b) estimate or assumption is reasonable and is

clearly identified in the document effecting the disclosure as an estimate or assumption.

(4) Where an advertisement is published and

information is disclosed in that advertisement that, under this Part, requires

other information to be included in that advertisement, the credit grantor who

publishes or on whose behalf the advertisement is published shall disclose the

information in the manner required by regulation.

(5) Where information in a disclosure statement is

inconsistent with information or a provision set out in the credit agreement,

the credit agreement is presumed to incorporate the information or provision

that is more favourable to the borrower, unless it is proven that the less

favourable information or provision reflects the borrower's actual

understanding of the provisions of the agreement.

Delivery

(1) Where

there is more than one borrower under a credit agreement, a disclosure

statement or other document that is required to be delivered to the borrowers

may be delivered to one of the borrowers, and it is unnecessary to deliver a

separate copy to each borrower.

(2) A document sent by ordinary mail to a borrower

at the mailing address provided by the borrower to the credit grantor shall be

considered, in the absence of evidence to the contrary, to have been delivered

to the borrower 7 days after it was sent.

Division 2

Rights and Obligations

Insurer

(1) A

borrower who is required by a credit grantor to purchase insurance may purchase

it from an insurer authorized to provide that type of insurance in the province

but the credit grantor may, on reasonable grounds, reserve the right to

disapprove an insurer selected by the borrower.

(2) A credit grantor who offers to provide or to

arrange insurance referred to in subsection (1) shall, at the time of that

offer, clearly disclose to the borrower in writing that the borrower may, in

accordance with subsection (1), purchase the required insurance through an

insurance agent and insurer of the borrower's choice.

Cancellation of

optional services

(1) A

borrower may cancel an optional service of a continuing nature that is provided

by the credit grantor or an associate of the credit grantor by giving 30 or

more days notice or a shorter period of notice where that shorter notice is

provided for by the agreement under which the service is provided.

(2) A borrower who cancels an optional service

under subsection (1) is

(

a) not liable for charges relating to a portion

of the service that has not been provided at the time of the effective date of

the cancellation; and

(

b) entitled to a refund of an amount already paid

for those charges.

Prepayment of

credit

(1) This

section does not apply to mortgage loans.

(2) A borrower is entitled to prepay the full

outstanding balance owing under a credit agreement without a prepayment charge

or penalty.

(3) Where a prepayment under subsection (2) is

made with respect to a credit agreement for fixed credit, the credit grantor

shall refund or credit to the borrower the portion of non-interest charges paid

by the borrower or added to the outstanding balance as prescribed by regulation.

(4) A borrower is entitled, on a scheduled payment

date or at least monthly, to prepay less than the full outstanding balance

owing under a credit agreement for fixed credit, without a prepayment charge or

penalty, but, in that event, is not entitled to a refund or credit of

non-interest finance charges.

Default charges

53. A

credit agreement shall not impose default charges other than reasonable charges

(

a) with respect to legal costs incurred in

collecting or attempting to collect payment;

(

b) with respect to costs, including legal costs,

incurred in realising a security interest or protecting the subject matter of a

security interest after default; and

(

c) that reflect costs incurred by the credit

grantor because a cheque or other payment instrument given by the borrower to

the credit grantor was dishonoured.

Invitation to

defer payment and acceleration clause

(1) Where

a credit grantor invites a borrower to defer making a payment that would

otherwise be due under a credit agreement, the credit grantor shall, in that

invitation, clearly disclose whether or not interest will accrue on the unpaid

amount during the period for which the payment is deferred.

(2) Where an invitation referred to in subsection

(1) does not disclose whether or not interest will accrue on the unpaid amount

during the period for which payment is deferred, the credit grantor shall be

considered to have waived the interest that would otherwise accrue during that

period.

(3) Notwithstanding anything in a credit

agreement, the whole or part of the outstanding balance does not become payable

or otherwise accelerated, and an interest rate made specially applicable to the

outstanding balance does not become effective in accordance with the

acceleration clause, until written notice of the default or other event

(

a) is served personally on the borrower; or

(

b) is sent by registered mail to the borrower at

the borrower's latest address as shown on the records of the credit grantor.

(4) Notwithstanding subsection (3), if the credit

grantor sends a notice under paragraph (3)(b), the whole or part of the

outstanding balance does not become payable or otherwise accelerated, and an interest

rate made specially applicable to the outstanding balance does not become

effective until 10 days after the date the notice was sent to the borrower.

(5) In this section, "acceleration

clause" means a clause in a credit agreement that provides that on default

by the borrower or on the occurrence of another event, and whether or not at

the option of the credit grantor, the whole or a part of the outstanding

balance becomes immediately payable or is otherwise accelerated.

Non-business

credit grantors

55. Where

a loan broker secures for a borrower an extension of credit from a credit

grantor who does not provide credit in the ordinary course of carrying on

business,

(

a) the provisions of this Part and the

regulations that impose a duty on a credit grantor shall be read as imposing

that duty on the loan broker rather than on the credit grantor; and

(

b) where the borrower pays or is required to pay

a brokerage fee, the loan broker shall ensure that the initial disclosure statement

for the credit agreement

(

i) discloses the amount of the brokerage fee, and

(ii) accounts for the brokerage fee in the APR and the total cost of

credit.

Business credit

grantors

(1) Where

a loan broker secures for a borrower an extension of credit from a credit

grantor who does provide credit in the ordinary course of carrying on business,

(

a) if the credit grantor deducts a brokerage fee

from the value received or to be received by the borrower in accordance with

subsections 45 (2) and (3), the credit grantor

shall ensure that the initial disclosure statement for the credit agreement

(

i) discloses the amount of the brokerage fee, and

(ii) accounts for the brokerage fee in the APR and the total cost of

credit; and

(

b) if the loan broker takes a loan application

from the borrower and forwards it to the credit grantor, the loan broker shall

give to the borrower

(

i) a disclosure statement containing the

information referred to in paragraph (a), and

(ii) other information that, under this Part, is

required to be disclosed in the initial disclosure statement for the credit

agreement.

(2) Where a loan broker gives a borrower a

disclosure statement under paragraph (1)(b), the credit grantor may

(

a) adopt that disclosure statement as its own, in

which case the credit grantor is jointly and individually liable with the loan

broker for the content of that statement; or

(

b) elect to deliver to the borrower a separate

disclosure statement containing the information that is required to be disclosed

under this Part.

Division 3

Fixed Credit

Application

(1) This

Division applies only to credit agreements that extend fixed credit.

(2) Where this Division applies to a credit sale,

the credit grantor shall ensure that the credit agreement is a scheduled

payments credit agreement.

Advertising

(1) This

section applies only to advertisements that

(

a) offer credit to which this Division applies;

and

(

b) state the interest rate or amount of a

payment.

(2) A credit grantor shall ensure that every

advertisement to which this

section applies that is published by or on behalf

of the credit grantor discloses the APR and the term with respect to the proposed credit agreement.

(3) A credit grantor to which subsection

(2) applies shall ensure that if the advertisement is for a credit sale of a

specifically identified product,

(

a) the advertisement discloses the cash price of

that product; or

(

b) in connection with which a non-interest

finance charge is to be payable, the advertisement discloses the

(

i) cash price of the product, and

(ii) total cost of credit.

Advertising interest-free

periods

(1) An

advertisement that states or implies that no interest is payable for a certain

period with respect to a transaction shall disclose whether

(

a) the transaction is unconditionally

interest-free during the period; or

(

b) interest accrues during the period but will be

forgiven under certain conditions.

(2) Where interest accrues during a period but

will be forgiven under certain conditions, the advertisement shall also

disclose

(

a) those conditions; and

(

b) the APR that will apply to the period if those conditions are not met.

(3) An advertisement to which subsection

(1) applies that does not disclose the information required under paragraph (1)(

b) and subsection (2) shall be considered to represent that the transaction is unconditionally

interest-free during the relevant period.

Disclosure statements

(1) A

credit grantor who has entered into or who is negotiating to enter into a

scheduled payments credit agreement shall ensure that the disclosure statements

for that credit agreement disclose the information required by regulation.

(2) A credit grantor who has entered into or is

negotiating to enter into a credit agreement that is not a scheduled payment

credit agreement shall ensure that the disclosure statements for that credit

agreement disclose the information required by regulation.

Interest change

disclosure

(1) In

addition to the disclosure statement required under

section 60 , where the interest rate is a floating rate, the

credit grantor shall, at least once every 12 months, deliver to the borrower a

disclosure statement that contains the information required by regulation.

(2) In addition to the disclosure statement

required under

section 60 , where the interest

rate is not a floating rate but is subject to change, the credit grantor shall,

within 30 days after the date on which the annual interest rate becomes one

percent or more higher than the rate most recently disclosed to the borrower in

writing, deliver to the borrower a disclosure statement that contains the

following information:

(

a) the date of the statement;

(

b) the new annual interest rate and the date that

the new annual interest rate takes effect; and

(

c) the new amount, and timing, of payments to be

made after the date referred to in paragraph (b).

Increases in outstanding

principal

(1) In

addition to another document that the credit grantor is required to deliver to

the borrower, the credit grantor shall deliver to the borrower a notice, in

writing, in accordance with subsection (2) where,

(

a) the outstanding principal on a scheduled

payments credit agreement increases, as a result of

(

i) the compounding of interest on a missed or

late payment, or

(ii) the imposition of a default charge; and

(

b) as a result of the increases in outstanding

principal, the total amount of the payments the borrower is scheduled to make

over a payment period does not cover the interest that will accrue during that

payment period.

(2) A notice under subsection (1) shall

(

a) be delivered to the borrower not more than 30

days after the most recently missed or late payment or default payment imposed;

and

(

b) specify

(

i) that the outstanding principal has increased

and why,

(ii) that, because of the increase in principal,

the subsequent scheduled payments will not cover the interest that will accrue

in each payment period, and

(iii) what the total outstanding balance will be at

the end of the term if the amount of subsequent scheduled payments is not

adjusted.

Amendments

(1) Where

a credit agreement is amended, the credit grantor shall deliver a supplementary

disclosure statement to the borrower not later than 30 days after the amendment

is made.

(2) The credit grantor shall ensure that a

supplementary disclosure statement sets out the changed information but that

statement need not repeat information that is unchanged since the previous

disclosure statement.

(3) This

section does not apply to changes

effected by a renewal to which

section 64

applies.

Mortgage renewal

disclosure

(1) Where

the amortization period for a mortgage loan under a scheduled payments credit

agreement is longer than the term of the mortgage, the credit grantor shall

notify the borrower, in writing, not fewer than 21 days before the end of the

term, whether or not the credit grantor is willing to renew the mortgage for a

further term.

(2) A credit grantor who is willing to renew a

mortgage shall include, with the notice referred to in subsection (1), a

disclosure statement, based upon the assumption that the borrower will make

payments that are due under the current mortgage that includes the information

required by regulation.

(3) Where a credit grantor fails to provide the

borrower with a renewal statement for a mortgage loan 21 or more days before

the effective date of the renewal agreement, the borrower's rights under the

original loan agreement continue to apply until 21 days after the renewal

statement is provided to the borrower.

(4) Subsection (3) does not apply where

(

a) a credit grantor delivers to a borrower a

disclosure statement with respect to the renewed mortgage not fewer than 21

days before the effective date of the renewed mortgage; and

(

b) that statement does not reflect the terms of

the renewed mortgage by reason only that the

(

i) outstanding balance of the mortgage loan on

the effective date of the renewed mortgage differs from that stated in the

disclosure statement because of one or more missed, late, early or extra

payments,

(ii) interest rate under the renewed mortgage is

lower than the interest rate stated in the disclosure statement, or

(iii) amortization period or frequency of payments

under the renewed mortgage differs from what was stated in the disclosure

statement.

(5) Where subsection (4) applies, the credit

grantor shall, not more than 30 days after the effective date of the renewed

mortgage, deliver to the borrower a revised disclosure statement that reflects

the terms of the renewed mortgage.

Division 4

Open Credit

Application

65. This

Division applies to credit agreements that extend open credit.

Advertising

66. A

credit grantor including a credit grantor associated with a credit card shall

ensure that an advertisement that is published by or on behalf of the credit

grantor shall disclose

(

a) the current annual interest rate; and

(

b) initial or periodic non-interest finance

charges.

Interest free

periods

(1) An

advertisement that states or implies that no interest is payable for a certain

period with respect to a transaction under a credit agreement shall disclose

whether

(

a) the transaction is unconditionally interest

free during the period; or

(

b) interest accrues during the period but will be

forgiven under certain conditions.

(2) Where interest accrues during the period but

will be forgiven under certain conditions, the advertisement shall also

disclose

(

a) those conditions; and

(

b) the annual interest rate for the period,

assuming those conditions are not met.

(3) An advertisement to which subsection

(1) applies that does not disclose the information required under paragraph (1)(

b) and subsection (2) shall be considered to represent that the transaction is unconditionally

interest free during the relevant period.

Open credit disclosure

68. A

credit grantor who has entered into or who is negotiating to enter into a

credit agreement shall ensure that the initial disclosure statement for that

credit agreement discloses the information required by regulation.

Statements of

account

(1) A

credit grantor shall, at least monthly, deliver to the borrower a statement of

account containing the

(

a) period covered by the statement and that

period shall run from the date of the first advance or, where a statement has

been delivered under this section, from the date of the statement of account

most recently delivered to the borrower;

(

b) outstanding balance at the beginning of the

statement period;

(

c) posting date, description and amount of each

transaction or charge added to the outstanding balance during the statement

period;

(

d) posting date and amount of each payment or

credit subtracted from the outstanding balance during the statement period;

(

e) annual interest rate or rates in effect during

the statement period or a part of the period;

(

f) total of all amounts added to the outstanding

balance during the statement period;

(

g) total of all amounts subtracted from the

outstanding balance during the statement period;

(

h) outstanding balance at the end of the

statement period;

(

i) credit limit;

(

j) minimum payment;

(

k) due date for payment;

(

l) amount that the borrower shall pay on or

before the due date in order to take advantage of a grace period;

(

m) borrower's rights and obligations regarding

the correction of billing errors; and

(

n) telephone number required under subsection

(3).

(2) Notwithstanding subsection (1), a credit

grantor is not required to send a statement of account to a borrower at the end

of a period during which there has been no advance of payment where

(

a) there is no outstanding balance at the end of

the period; or

(

b) the borrower is in default and the credit

grantor has

(

i) demanded payment of the outstanding balance,

and

(ii) given notice to the borrower that the

borrower's privileges to obtain advances under the agreement have been

cancelled or suspended due to the default.

(3) A credit grantor shall provide a telephone

number that the borrower can use to obtain information about the borrower's

account during the credit grantor's ordinary business hours and without incurring

charges for the call, and the credit grantor shall ensure that that information

is available at that number during those hours.

Transaction

description

70. A

transaction is sufficiently described if the description in the statement of

account, along with a transaction record included with the statement of account

or made available to the borrower at the time of the transaction, can

reasonably be expected to enable the borrower to verify the transaction.

Credit card by

application

(1) A

credit card issuer shall not issue a credit card to an individual who has not

applied for the card.

(2) Subsection (1) does not apply to a credit card

issued to an individual to replace or renew a card that was applied for by and

issued to that individual.

Application for

credit card

(1) A

credit grantor who has entered into or who is negotiating to enter into a

credit agreement for a credit card shall ensure that the application form for

that credit card discloses the information required by regulation.

(2) Notwithstanding subsection (1), instead of

disclosing the information required under that subsection, the application form

may disclose a telephone number that the cardholder can use to obtain that

information during the credit card issuer's ordinary business hours and without

incurring charges for the call, and the credit card issuer shall ensure that

that information is available at that number during those hours.

(3) Notwithstanding subsection (2), where an

individual applies for a credit card in person, by telephone or by electronic

means, the credit card issuer shall disclose the information referred to in

subsection (1) when the individual makes the application.

(4) An individual who applies for a credit card

without signing an application form shall be considered, on using the credit

card for the first time, to have entered into a credit agreement with respect

to that card in the terms of the disclosure statement referred to in subsection

(5).

(5) Nothing in this

section relieves the credit

card issuer from the requirement to deliver a disclosure statement in

accordance with sections 54 and 73 .

Additional credit

card disclosure

(1) In

addition to the disclosure requirements of

section 69 ,

a credit card issuer shall disclose, in the initial disclosure statement for a

credit card, the card holder's maximum liability for unauthorised use of the

credit card if it is lost or stolen.

(2) The credit card issuer shall notify the

cardholder of a change in the information disclosed in a disclosure statement,

(

a) in the case of a change to the following

information, in the next statement of account following the change in information

or in a document that is given to the cardholder with the next statement of

account:

(

i) a change in the credit limit,

(ii) a decrease in the interest rate or the amount

of other charges,

(iii) an increase in the length of an interest free

period or grace period, and

(iv) a change in the floating interest rate; or

(

b) in another case, at least 30 days before the

date that the change takes effect.

Limitation of

liability

(1) A

cardholder who has, orally or in writing, reported a lost or stolen credit

card, or the unauthorised use of the credit card or credit card number, to the

credit card issuer is not liable for a debt incurred through the use of that

card after the credit card issuer receives the report.

(2) The maximum total liability of a cardholder

arising from unauthorised use of a lost or stolen credit card before the issuer

receives notice under subsection (1) is the lesser of

(a) $50; or

(

b) the maximum amount set by the credit agreement

with respect to the credit card.

(3) Subsection (2) does not apply to the use of a

credit card in conjunction with a personal identification number at a device commonly

referred to as an automated teller machine.

Division 5

Leases of Goods

Application

75. This

Division applies only to a lease that is

(

a) for a fixed term of 4 months or more;

(

b) for an indefinite term or is renewed

automatically until one of the parties takes positive steps to terminate it; or

(

c) a residual obligation lease.

Advertising requirements

76. A

lessor shall ensure that every advertisement that is published by or on behalf

of the lessor and that gives specific information about the cost of a lease

discloses the following information:

(

a) that the transaction is a lease;

(

b) the term of the lease;

(

c) the nature and amounts of payments that are

payable by the lessee on or before the beginning of the term;

(

d) the amount, timing and number of the periodic

payments;

(

e) the nature and amount of other payments that

are payable by a lessee in the ordinary course of events;

(

f) the lease APR ; and

(

g) where required under this or another Part or

another Act, information regarding extra charges based on the usage of the

leased goods.

Disclosure

(1) A

lessor who has entered into or who is negotiating to enter into a lease shall

ensure that the initial disclosure statement for that lease discloses the

information required by regulation.

(2) The lessor shall deliver the initial

disclosure statement to the lessee before the lessee enters into the lease or

makes a payment with respect to the lease.

Maximum liability

for residual obligation lease

78. Notwithstanding

paragraph 45 (1)(ss), the maximum liability of a

lessee at the end of the term of a residual obligation lease after returning

the leased goods to the lessor is the sum of the following amounts as

calculated in accordance with the regulations:

(

a) the estimated residual cash payment; and

(

b) the estimated residual value less the

realizable value of the leased goods.

Division 6

Compliance

Interpretation

79. For

the purpose of this Division, a credit grantor shall be considered to have a

compliance procedure where that credit grantor

(

a) requires its employees and agents to follow

procedures or has implemented automated procedures designed to ensure that

borrowers receive the information to which they are entitled at the time and in

the form required under this Part; and

(

b) monitors the effectiveness of the measures

referred to in paragraph (

a) and promptly remedies deficiencies in their design

or implementation.

Recovery of overpayments

and compensation

(1) Notwithstanding

an agreement to the contrary, where a borrower makes a payment to a credit

grantor that the credit grantor is not entitled to receive, the credit grantor

shall refund the payment to the borrower or, where the parties agree, credit

the payment against the outstanding balance under the credit agreement as of

the time the payment was made.

(2) A credit grantor who contravenes this Part

shall compensate a borrower for a loss the borrower suffers because of the

contravention and the compensation to which the borrower is entitled may be set

off against the outstanding balance of the credit agreement or may be recovered

from the credit grantor in an action in a court.

Remedies

(1) A

contravention of this

Part is an excusable error where

(

a) the credit grantor had a compliance procedure

to prevent or identify a contravention when the contravention occurred;

(

b) the contravention was accidental or the result

of an employee's or agent's failure to follow the compliance procedure; and

(

c) on discovering the contravention, the credit

grantor promptly took steps to minimize its effect on an affected borrower.

(2) Where a credit grantor contravenes this

Part

in relation to a credit agreement and the contravention is not an excusable

error, the borrower is entitled, in addition to another remedy to which the borrower

may be entitled, to recover the damages provided for under this

section from

the credit grantor in an action in a court of competent jurisdiction.

(3) The damages for a contravention of this Part

are the lesser of $500 and 5% of whichever of the following is applicable:

(

a) for a credit agreement for fixed credit, the

maximum outstanding balance;

(

b) for a lease, the capitalized amount; and

(

c) for a credit agreement for open credit,

(

i) with a specified credit limit, the credit

limit, and

(ii) without a specified credit limit, $500.

(4) Where a contravention of this Part relates to

a statement of account for open credit, the damages are equal to the interest

and non-interest finance charges for the period covered by the statement of account.

(5) A court may reduce the damages to which a

borrower would otherwise be entitled under this

section if the court is

satisfied, in view of all the circumstances, including an undertaking as to

future compliance that is given by the credit grantor, that it would be

appropriate to do so.

(6) The damages to which a borrower is entitled

may be set off against an amount otherwise payable by the borrower to the

credit grantor.

(7) A remedy under this

Part is in addition to and

does not derogate from another legal, equitable or statutory remedy.

(8) A court may award exemplary damages to a

borrower against a person who has deliberately contravened this Part or if the

court considers that the conduct of that person justifies an award of exemplary

damages.

Assignee

(1) Except

as otherwise provided in this section, a borrower may assert against a person

to whom the rights of a credit grantor have been assigned, rights or remedies

under

section 49 , 80

or 81 that the borrower could have asserted

against the original credit grantor.

(2) The assignee's maximum liability under a

section referred to in subsection (1) is limited to the outstanding balance at

the time of the assignment or the proportion of the outstanding balance that is

assigned to the assignee.

(3) An assignee does not incur liability under

this

section for a credit grantor's contravention of this Part unless

(

a) the assignee knew of the contravention before

the borrower received notice of the assignment;

(

b) the contravention consists of the credit

grantor's failure to deliver a disclosure statement to the borrower; or

(

c) the contravention is apparent on the face of

the disclosure statement or is apparent by comparing the disclosure statement

with the written terms of the credit agreement.

(4) An assignee is entitled to rely in good faith

on a borrower's signed acknowledgement of receipt of a disclosure statement.

Division 7

Regulations

Regulations

(1) The

Lieutenant-Governor in Council may make regulations for the purpose of this

Part

(

a) defining a word for the purpose of this Part

where that word is not defined in this Part;

(

b) respecting the calculation of

(

i) APR ,

(ii) lease APR ,

(iii) the penalty payable for the early termination

of a lease, and

(iv) another matter that under this

Part is to be

determined by calculation;

(

c) respecting the criteria to be used in

determining what constitutes an index rate;

(

d) for the purpose of subparagraph 45(1)(s)(iv);

(

e) prescribing credit agreements or classes of

credit agreements to which this Part applies or does not apply;

(

f) respecting the information that shall be

disclosed in a disclosure statement;

(

g) respecting the form and manner in which

information required to be disclosed under this

Part is to be disclosed;

(

h) defining for the purpose of advertisements,

what constitutes a representative transaction and prescribing information that

shall be disclosed in an advertisement that refers to one or more

representative transactions;

(

i) respecting high ratio mortgages and realizable

value;

(

j) for the purpose of subsection 72(1);

(

k) respecting the manner in which the estimated

residual cash payment and the realizable value of leased goods is to be

calculated;

(

l) respecting the determination that a thing

received or to be received by a borrower as value received or to be received or

as not constituting value received or to be received;

(

m) designating anything given or to be given by a

borrower as value given or to be given;

(

n) prescribing expenses for the purpose of this

Part;

(

o) respecting the time by which a credit grantor

shall disclose the cost of borrowing to the borrower and the terms and

conditions under which a time period may be waived;

(

p) prescribing the portion and manner of

refunding and crediting non-interest finance charges;

(

q) prescribing information respecting extra

charges for the purpose of paragraph 76 (g);

(

r) respecting the form, contents and manner in

which information and records may be disclosed or delivered under this Part

and, for a prescribed manner of delivery, prescribing the time on which a

record delivered in that manner is considered to be received by the person to

whom it was delivered;

(

s) requiring credit grantors and loan brokers or

one or more classes of them to retain one or more records required under this

Part for a specified period and prescribing when, how and to whom those records

are to be made available for examination, extracts and copying;

(

t) exempting, generally or in specified

circumstances, certain classes of persons from all or a Division of this Part and

the regulations;

(

u) respecting designated expenses;

(

v) prescribing the application or non application

of this Part for the purpose of paragraphs 46 (1)(

b) and 46 (3)(b);

(

w) respecting the waiver or variation of time

periods by agreement or otherwise; and

(

x) generally, to give effect to the purpose of this

Part.

(2) Regulations made under this

section may be

made with retroactive effect.

PART VIII

LICENCES

Definitions

84. In

this Part

(a) "credit reporting agency" means

credit reporting agency as defined in paragraph 36 (b);

and

(b) "direct seller" means

(

i) a supplier who enters into a direct sales

contract, solicits consumers to enter into a direct sales contract, or both,

and includes a salesperson of a supplier, and

(ii) a person, including an officer and a director,

who performs services related to the management of the business of a supplier

referred to in subparagraph (i).

Licence required

(1) A

person shall not carry on business as a direct seller unless he or she obtains

a licence from the director.

(2) A person shall not carry on business as a

credit reporting agency unless he or she obtains a licence from the director.

(3) An application for a licence under subsection

(1) or (2) shall be in the form required by the director and the applicant

shall pay the fee set by the director.

(4) The director may require further information

or material to be submitted within a specified time by an applicant for a

licence.

(5) The director may require a statement made in

support of an application for a licence under subsection (1) or (2) to be verified

by an affidavit.

Denial of licence

(1) An

applicant for a licence to carry on the business of a direct seller is entitled

to be granted the licence unless in the opinion of the director

(

a) his or her record of past conduct is such that

it would not be in the public interest to grant it; or

(

b) he or she is an undischarged bankrupt.

(2) An applicant for a licence to carry on

business as a credit reporting agency is entitled to be granted the licence unless

in the opinion of the director

(

a) his or her financial responsibility or record

of past conduct is such that it would not be in the public interest for the licence

to be granted; or

(

b) where the applicant is a corporation, its

financial responsibility or the record of past conduct of the corporation or

its officers or directors is such that it would not be in the public interest

for the licence to be granted.

of a licence

(1) A

licence issued under

section 86 is subject to

the terms, conditions and restrictions that may be consented to by the

applicant, imposed by the director, or prescribed by the regulations.

(2) The director may, by written notice to a licensee,

add to, remove or alter the terms, conditions or restrictions to which the licence

is subject.

(3) A licensee shall comply with the terms, conditions

and restrictions to which his or her licence is subject.

Suspension and

cancellation of a licence

(1) The

director may suspend or cancel the licence of a direct seller or a credit reporting

agency upon a ground on which he or she might have refused to grant the licence

under

section 86 or where he or she is satisfied

that the licensee

(

a) has contravened this Part or the regulations

or has failed to comply with the terms, conditions or restrictions to which the

licence was subject;

(

b) has made a material misstatement in the

application for a licence or in the information or material submitted to the

registrar under subsection 85 (4);

(

c) has been guilty of misrepresentation, fraud,

deceit or dishonesty;

(

d) is not carrying on business in the province;

(

e) being a corporation, has been dissolved or has

been struck off the register under the

Corporations Act;

(

f) being a natural person, has died; or

(

g) has become bankrupt.

(2) The registrar shall publish notice of the

suspension or cancellation in the

Gazette.

(3) Where the director suspends or cancels a

licence, the holder of it shall immediately return it to the director.

(4) The director may reinstate a suspended or

cancelled licence where he or she considers it appropriate to do so.

Production of

licence

89. A

person licensed under this Part shall produce his or her licence for inspection

when requested to do so by

(

a) a person whom he or she has solicited as a

direct seller; or

(

b) by a person who is the subject of a credit

report by a credit reporting agency.

Certificate of

registrar

90. A

certificate signed by the director stating that on a specified day

(

a) a person was or was not licensed under this

Part;

(

b) a licence was issued to a director seller or

credit reporting agency; or

(

c) the licence of a direct seller or credit

reporting agency was suspended, cancelled or reinstated,

is admissible in evidence as, in the

absence of evidence to the contrary, proof of the facts stated in the

certificate.

Address for

service

(1) An

applicant for a licence shall state in the application an address for service

in the province.

(2) A notice given under this Part or the

regulations shall for all purposes be considered to be sufficiently served if

delivered or sent by registered mail to the licensee at the address for service

stated in his or her application for a licence, unless the licensee has

notified the director in writing of a change of address for service under

section

92 , in which case that notice shall be sufficiently

served if delivered or sent by registered mail to the licensee at the latest

address for service of which the director has been notified.

(3) Where a notice referred to in subsection

(2) is sent by registered mail, it is considered to be served on the day it is

deposited in the post office by the sender of the notice.

Notice of change

92. A

licensee shall notify the director in writing of

(

a) a change in his or her address for service;

(

b) a change in partners, in the case of a

partnership; and

(

c) a change in directors, in the case of a

corporation.

Annual return

(1) A

person licensed under this Part shall file an annual return with the director.

(2) An annual return filed under subsection

(1) shall contain the information the director may require.

Registration continues

94. A

registration remains in effect subject to the filing of an annual report and

payment of an annual fee until it is withdrawn by the registered person or is

suspended or cancelled under this Act.

Exception to

licensing requirement

95. A

person is considered not to be carrying on the business of direct selling and

is not required to be licensed under this Act where he or she is

(

a) a person selling newspapers;

(

b) a person selling dairy or bakery products,

firewood or coal, where that person or his or her employer resides or has a

place of business in the province;

(

c) a person selling motor vehicles, farm

implements, feed grain, feed supplements, fertilizer or weed spray, where he or

she resides or has a place of business in the province;

(

d) a person selling farm products, fish or meat;

(

e) a person selling goods or services on behalf

of an organization or corporation having objects of a benevolent, religious,

charitable, philanthropic, educational, agricultural, scientific, artistic,

social, political, professional, fraternal, sororal, sporting, athletic or

other useful nature and not formed for gain;

(

f) a person in respect of business for the

carrying on of which he or she is required to be licensed under the Securities Act, the Insurance Adjusters, Agents and Brokers Act , the Insurance Companies Act or

the Real Estate Trading Act; or

(

g) a person or one of a class of persons exempted

from the application of this Part by the regulations.

Bonds

(1) The

director shall require an applicant for a licence as a direct seller to deliver

to him or her within a specified time a bond to the Crown in the form and

amount that he or she may prescribe.

(2) The director may require a salesperson to

deliver to him or her within a specified time

(

a) a bond to the Crown in the form and amount

that he or she may prescribe; or

(

b) a certificate of a surety company that a

surety bond previously filed on behalf of the applicant is in force.

(3) A bond given under this Part shall be forfeited

and the amount shall be recoverable from the person bound by the bond as a debt

due the Crown, where

(

a) a conviction of an offence under this Act or

the regulations or of an offence involving fraud, theft or conspiracy to commit

an offence involving fraud or theft under the Criminal Code has been made by a

court;

(

b) a judgment based on a finding of fraud has

been given; or

(

c) a winding-up or receiving order has been made

under the Bankruptcy and Insolvency Act ( Canada )

or the Winding-up and Restructuring Act ( Canada ),

against the person in respect of whose

conduct the bond was conditioned, or, where that person is a partnership, a

partner of that partnership, and the conviction, judgment or order has become

final.

(4) In respect of every act and omission occurring

during the term of a licence, every bond shall continue in force for a period

of 2 years after the licence to which it relates expires or is cancelled.

(5) The minister may, with the prior approval of

or she may prescribe, assign a bond forfeited under this Part or may pay over

money recovered under a bond to

(

a) a person who may become, in respect of a claim

arising out of a direct sales contract, a judgment creditor of the person

bonded;

(

b) the Registrar of the Supreme Court in trust

for a person referred to in paragraph (a); or

(

c) a trustee, custodian, interim receiver,

receiver or liquidator of a person referred to in paragraph (a),

and every assignment of a bond or payment

over of money made by the minister under this

section shall be done in

accordance with an order of the Lieutenant-Governor in Council relating to that

assignment.

(6) Where the Crown becomes a creditor of a person

under this Part, the debt may be recovered by action or other proceeding in a

court as a debt due the Crown.

(7) When a bond has been forfeited under

subsection (3) by reason of a conviction or judgment referred to in paragraph

(3)(

a) or (

b) and 2 years have elapsed since

(

a) that conviction or judgment; or

(

b) the seller in respect of whom the bond was furnished

ceased to carry on business,

and the minister has not received notice

in writing of a claim against the proceeds of the bond or of a portion of the

bond which remains in the possession of the minister, the Lieutenant-Governor

in Council may direct the minister to pay to a person who, upon forfeiture of

the bond, made payments under the bond, the proceeds, less the amount of expenses

that have been incurred in connection with an investigation or otherwise

relating to that direct seller.

PART IX

INVESTIGATION AND ENFORCEMENT

Investigations

(1) The

director or a person authorized by the director may, where it is reasonably

necessary to determine compliance with this Act, enter a place and demand the

production of and inspect the business books, documents, correspondence and

records that the director or authorized person believes on reasonable grounds

are in respect of the person about whom the investigation is being made.

(2) Where the director believes on reasonable

grounds that a person has contravened this Act or regulations or where the

director believes on reasonable grounds that a person, is or is about to contravene

this Act, the director or person authorized by the director may with a warrant

issued under subsection (3) at a reasonable time enter a place and may

investigate, inquire into and examine the affairs in relation to the actions in

respect of which the investigation is being made and into books, documents,

correspondence and records in relation to it.

(3) A Provincial Court judge who is satisfied by

information upon oath or affirmation that there are reasonable grounds for believing

that there is in a place anything that there are reasonable grounds to believe

will give evidence with respect to a contravention of this Act or the

regulations may issue a warrant authorizing the director or person authorized

by the director named in the warrant to enter and search that place and to make

those inquiries and copies of books, documents, correspondence and records that

are necessary, subject to the conditions that may be specified in the warrant.

(4) The owner or person in charge of the place

referred to in this

section and a person found there shall give the director or

person authorized by the director reasonable help to enable that person to

carry out his or her duties and functions under this

section and shall provide

the information that that person may reasonably require.

Proof of

documents

98. A

copy made under

section 97 and certified to be

a true copy by the person making the investigation is admissible in evidence as

proof of the original records.

Freezing orders

(1) Where

the director has begun an investigation under

section 97

and has reasonable grounds to believe that it is advisable for the protection

of consumers dealing with a supplier the director may, in writing

(

a) direct a person who the director believes has

or may have on deposit, under his or her control, or for safekeeping property

of the supplier to hold that property in trust for a person appointed as an

interim receiver, custodian, receiver or liquidator of the supplier;

(

b) direct a person who the director believes is

indebted to a person being investigated under

section 97

to hold money that may be payable in satisfaction of the debt in trust for a

person appointed as the interim receiver, custodian, receiver or liquidator of

the supplier; and

(

c) direct a supplier who is being investigated

under

section 97 to refrain from withdrawing

property that he or she has or may have on deposit with a person

until the director makes a written

revocation of the direction or consents in writing to the release of a

particular item of property, or a judge directs a different disposition of the

property.

(2) Subsection (1) does not apply where the

supplier being investigated under

section 97

files with the director a bond in a form and amount that is satisfactory to the

director.

(3) A supplier or another person in receipt of a

direction under subsection (1) may apply to a judge for an order to cancel or

vary the direction and the judge may make an order where the judge finds

(

a) that the direction was not necessary either in

whole or in part for the protection of consumers dealing with the supplier; or

(

b) that the interests of other persons are unduly

prejudiced by the direction.

Receiving order

100. The

director may apply to a judge for the appointment of an interim receiver,

custodian, receiver or liquidator to take possession of and hold property of

order.

Compliance

(1) Where

the director has reason to believe that a person is contravening, is about to

contravene or has contravened this Act or the regulations, the director may

enter into a written undertaking of voluntary compliance with the supplier

instead of entering into or continuing an investigation under

section 97 or taking or continuing another proceeding under

this Act.

(2) An undertaking of voluntary compliance may be

in a form and contain those terms that the director may determine and may include:

(

a) an undertaking to comply with this Act and the

regulations;

(

b) an agreement that the supplier will refrain

from engaging in certain acts or practices;

(

c) an agreement to compensate customers who have

suffered damage or loss as a result of the acts or practices;

(

d) an agreement that future consumer transactions

engaged in by the supplier will be carried on in accordance with the terms of

the agreement;

(

e) an agreement to provide a bond in a form and

amount that may be set out in the agreement; and

(

f) an agreement on the form and content of

records, contracts, advertisements or other documents respecting consumer

transactions engaged in by the supplier and the maintenance of trust accounts

held by the supplier.

(3) An undertaking of voluntary compliance may be

varied or terminated by the director upon the request of the supplier.

(4) A supplier may apply to a judge after he or

she enters into an undertaking of voluntary compliance for an order

(

a) terminating an undertaking of voluntary

compliance where the judge is satisfied that the person did not contravene the

Act or the regulations; and

(

b) varying the undertaking of voluntary

compliance where the judge is satisfied that the variance is in the best

interests of consumers.

(5) An undertaking of voluntary compliance that is

terminated or varied under this

section does not invalidate anything done under

that undertaking of voluntary compliance before its termination or variance.

(6) The director shall maintain a public record of

undertakings of voluntary compliances that have been entered into.

Compliance

orders

(1) After giving a person an opportunity

to be heard, the director may order the person to comply with this Act and the

regulations if satisfied that the person is contravening, is about to contravene

or has contravened this Act or the regulations.

(2) A

compliance order shall

(

a) name

the person in respect of whom the order is issued,

(

b) describe

the person's act or practice that is contravening, is about to contravene or

has contravened this Act or the regulations,

(

c) identify

the

section of this Act or the regulations that is being contravened, is about

to be contravened or has been contravened,

(

d) be

dated and signed by the director, and

(

e) inform

the recipient that the director may file the compliance order with the Trial

Division and that a filed order is considered to be an order of the Trial

Division.

(3) In

a compliance order, the director may order a person to stop engaging in or not

engage in a specified act or practice and to comply with this Act and the

regulations.

(4) The

director may include one or more of the following orders in a compliance order:

(

a) that

a person reimburse money or return other property or thing received to a

consumer or a class of consumers;

(

b) that

a person compensate other persons or a class of persons who have suffered loss

or damage as a result of a contravention of this Act or the regulations;

(

c) that

a person take specified action to remedy

an act or practice by which the person

is contravening, is about to contravene or has contravened this Act or the

regulations; and

(

d) that

a person reimburse to the director all or a portion of the actual costs of an

inspection, including actual legal costs, incurred by the director for the

inspection of that person in respect of the contravention referred to in the

compliance order.

(5) The

director shall serve a copy of the compliance order on the person named in the

order.

(6) Where

a compliance order is made against 2 or more persons, all the persons against

whom the order is made are jointly and individually responsible for complying

with the order and are jointly and individually liable for the payment of

amounts the persons are required to pay under the order.

Director's

actions

(1) Where

the director is of the opinion that a supplier

(

a) has contravened this Act or the regulations;

(

b) has not complied with the terms of an undertaking

of voluntary compliance,

the director may begin and maintain an

action against the supplier in a court.

(2) In an action brought under subsection (1) the

court may make an order and grant the relief it considers appropriate including

relief for the class of consumers affected by the contravention of this Act or

the regulations.

Actions on behalf

of consumer

(1) Upon

the written request of a consumer and where the director is of the opinion that

it is in the public interest, the director may

(

a) start and maintain an action on behalf of a

consumer;

(

b) maintain an action that has been started by a

consumer, including an appeal of that action; and

(

c) defend an action on behalf of a consumer where

it appears to the director that this Act or the regulations have been contravened.

(2) In an action taken under this section, the

director shall begin and maintain the action in the name of and on behalf of

the consumer and the director has the same right to control the course of the

action as the consumer would have had in respect of the action, including the

right to settle the action on behalf of the consumer.

(3) In an action taken under this section,

(

a) money paid to the director, excluding costs

awarded, shall be paid by the director to the consumer;

(

b) money awarded against the consumer is

recoverable from the consumer and is not recoverable from the director or the

province; and

(

c) the costs of the action as awarded by the court

shall be paid to or paid by the director.

Interim

injunction

(1) Upon

the starting of an action under

section 103 or 104 the director or consumer may apply to the court

for an interim injunction restraining the supplier from continuing

an act or practice

that is alleged to be in contravention of this Act or the regulations.

(2) The court may grant an injunction where it is

satisfied that

(

a) the continuation of the alleged act or

practice may detrimentally affect consumers who deal with the supplier; and

(

b) the applicant has established a presumptive

case of a contravention of this Act or the regulations.

PART X

REGULATIONS

Regulations

106. The

minister may make regulations for the purpose of this Act except

Part VII

(

a) exempting classes of persons from the

application of this Act or the regulations;

(

b) governing applications for licences and

(

c) requiring credit reporting agencies or a class

of them to be bonded in the form and terms as prescribed, and providing for the

forfeiture of bonds and the disposition of the proceeds;

(

d) respecting the suspension or cancellation of

licences;

(

e) respecting the books, accounts and records to

be kept by a person licensed under this Act;

(

f) requiring a person licensed under this Act to

make returns and provide information to the director;

(

g) requiring the use by a person licensed under

this Act of forms approved by the director and prohibiting the use by a

licensee of forms not approved by the director;

(

h) respecting cancellation rights provisions in

direct sales contracts;

(

i) prohibiting the use of certain kinds of

information in consumer reports; and

(

j) generally, to give effect to the purpose of

this Act.

PART XI

APPEALS

Appeals

(1) A

person may appeal to a judge of the Trial Division

(

a) where the director has refused to issue a

licence to the person or to renew his or her licence;

(

b) against a term or condition to which the

person's licence is made subject;

(

c) where his or her licence has been suspended or

cancelled, against the suspension or cancellation; and

(

d) where the person is dissatisfied with a

decision, order or direction that the director has made affecting the person.

(2) A person appealing under this

section shall give

notice of the appeal to the director at the time the appeal is filed with the

court.

(3) An appeal under this

section shall be started

not later than 30 days after the happening of the event giving rise to the

appeal.

Evidence

108. Where,

in a prosecution under this Act or the regulations, it is alleged that the

accused engaged in an activity when he or she was not registered or licensed or

otherwise authorized under this Act or the regulations to do so, evidence of

one transaction is, in the absence of evidence to the contrary, proof that the

accused engaged in the activity.

PART XII

OFFENCE

Offences

(1) A

person who

(

a) fails to comply with or otherwise contravenes

this Act or a regulation made under this Act;

(

b) fails to comply with an order of the director;

(

c) fails to comply with an undertaking of

voluntary compliance; or

(

d) provides false or misleading information in an

application, form, return, account, record or other document

is guilty of an offence and liable on

summary conviction to a fine of

(

e) in the case of a natural person, not more than

$10,000 nor less than $500, or in default of or in addition to a fine, to imprisonment

for a period no