Third Session, 46th

General Assembly

59 Elizabeth II,

BILL 29

AN ACT TO AMEND THE PREPAID

FUNERAL SERVICES ACT

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

Second Reading .................................................................................................................................

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

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

KEVIN O'BRIEN

Minister of

Government Services

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Prepaid Funeral Services Act to

provide authority for the

minister to impose restrictions, limitations or conditions on a licence and prescribe

the duration of a licence issued under the Act;

expand the scope of search and

seizure provisions to include the authority to seize documents and other items;

add a provision to the Act to

allow the minister to appoint persons to conduct examinations and

investigations under the Act;

provide authority for a judge

to issue a production order requiring a person, other than a person who is the

subject of an investigation, to produce documents in his or her possession

concerning a violation of the Act;

provide authority for a person appointed

by the minister to summon and enforce the attendance of a person and to compel

that person to testify, and to summon and compel a person or company to produce

documents and other things in the context of an examination or investigation

under the Act;

provide authority for the

minister to issue an order of protection requiring a person holding money

belonging to consumers not to disburse or use the money until the order is

lifted;

provide authority for the minister

to take measures to safeguard funds in the possession or control of a seller of

prepaid funeral services;

provide authority for a judge

to order restitution where the Act has been violated and a person has suffered

damages, including restitution to the assurance fund where a person has been

compensated under that fund;

make it an offence to obstruct

or interfere with a lawful investigation or examination;

increase penalties that the

court may impose; and

set a 2 year limitation period for prosecutions under the Act.

A BILL

AN ACT TO AMEND THE PREPAID FUNERAL

SERVICES ACT

Analysis

1. S.3 Amdt.

Licence

S.3.1 Added

Duration of licence

3. S.11.1 Added

Appointment of examiners and investigators

4. S.12 R&S

Examination

S.13 R&S

Search and seizure with warrant

Ss.13.1 to 13.4 Added

13.1 Powers of an examiner

or investigator

13.2 Production order

13.3 Protection order

13.4 Protection of trust

funds

S.16 R&S

Offence

S.16.1 Added

Limitation period

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL2000 cP-18.1

as amended

Section 3 of the Prepaid Funeral Services Act is amended by adding

immediately after subsection (3) the following:

(3.1) The minister may attach to a licence those

restrictions, limitations and conditions the minister considers appropriate.

2. The Act is amended by adding immediately after

section 3 the following:

Duration of licence

3.1

(1) A

licence remains in effect, subject to the filing of annual reports and payment

of an annual fee as prescribed by the minister, and subject to the requirements

of the Act and regulations, until it is suspended or cancelled under this Act.

(2) Notwithstanding subsection (1), the minister

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

3. The Act is amended by adding immediately after

section 11 the following:

Appointment of

examiners and investigators

11.1 The

minister may appoint persons as examiners and investigators to conduct

examinations and investigations under this Act.

Section 12 of the Act is repealed and the

following substituted:

Examination

(1) Where

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

by the minister under

section 11.1, may, for the purpose of conducting an

examination, at reasonable times enter the premises of a seller and

(

a) require the production of books, records or

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

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

remove them for the purpose of making copies of them;

(

b) interview employees and agents of a seller to

determine if the seller is complying with this Act; and

(

c) inquire into all matters relating to prepaid

funeral contracts, funeral goods and funeral services related to those

contracts.

(2) A seller whose premises are entered under

subsection (1) and a person found there shall give the person appointed to

conduct the examination reasonable help to enable him or her to carry out his

or her duties and functions under this Act and shall provide the information

that he or she may reasonably require.

(3) Where a person conducting an examination under

subsection (1) removes books, records or other documents under paragraph

(1)(a), he or she shall give to the person from whom those items were taken a receipt

for those items and shall immediately make copies of those items and return the

originals to the person who was given the receipt.

(4) The minister may require the annual examination

of a seller under this

section or more frequent examinations where he or she considers

it necessary.

Section 13 of the Act is repealed and the

following substituted:

Search and

seizure with warrant

(1) Where

a person appointed by the minister under

section 11.1 believes on reasonable

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

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

anything that may provide evidence of the contravention.

(2) A judge of the Provincial Court or the Trial

Division who is satisfied on oath or affirmation that there are reasonable

grounds for believing that a contravention of this Act has occurred, or is occurring,

may issue a warrant authorizing the person named in the warrant to enter the

private or public premises, including a dwelling house, and to

(

a) search;

(

b) examine the contents of the premises and make

those inquires that the person considers necessary; and

(

c) copy, extract, photograph, video, seize and

take away evidence, books and records

for the purpose of investigating the

suspected contravention.

(3) A seller and the owner or operator of private

or public premises referred to in this

section and a person found there shall not

obstruct the person named in the warrant in its execution.

6. The Act is amended by adding immediately after

section 13 the following:

Powers of an examiner

or investigator

13.1

(1) A

person appointed by the minister under

section 11.1 to conduct an examination

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

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

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

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

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

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

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

as if in breach of an order of that court.

(2) A person or company giving evidence under

subsection (1) may be represented by counsel and may claim a privilege to which

the person or company is entitled.

Production order

13.2

(1) A

judge of the Provincial Court or a judge of the Trial Division may order a

person, other than a person who is the subject of an investigation,

(

a) to produce a document or a copy of a document,

certified by affidavit to be a true copy, or to produce data; or

(

b) to prepare a document based on a document or

data already in existence and to produce it.

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

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

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

under

section 11.1.

(3) A judge may make an order referred to in

subsection (1) where he or she is satisfied on the basis of an application made

in writing on oath or affirmation and without notice that there are reasonable

grounds to believe that

(

a) a person has contravened or is contravening

this Act or the regulations or is suspected to have contravened this Act or the

regulations;

(

b) the document or data will provide evidence

respecting a contravention or suspected contravention of this Act or the regulations;

and

(

c) the person who is subject to the order has

possession or control of the document or data.

(4) An order referred to in subsection (1) may

communication between a lawyer and his or her client.

(5) The order referred to in subsection (1) may be

revoked, renewed or varied.

(6) A copy of a document produced under this

section, on proof by affidavit that it is a true copy, is admissible in

evidence in proceedings under this Act and has the same probative force as the

original document would have if it had been proved in the ordinary way.

(7) Copies of documents produced under this

section are not required to be returned to the person who provided them.

Protection order

13.3

(1) Where

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

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

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

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

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

orders otherwise.

(2) A direction under subsection (1) that names a

bank or other financial institution shall apply only to a branch of the bank or

other financial institution identified in the direction.

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

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

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

that the judge considers appropriate.

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

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

immediately by means that the minister may determine to all persons named in

the direction.

Protection of

trust funds

13.4

(1) Where

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

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

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

may, by order appoint a person as trustee to take possession of property or an

undertaking in the possession of or under the control of the seller for the

purpose of preserving, carrying on or winding up the business of the seller.

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

be the trustee in respect of a trust property of the seller, and the person

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

representative, committee or other representative of the seller.

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

accordance with the Rules of the Supreme

Court, 1986 , from an order made by the minister under this

section within

30 days after the delivery of a copy of the order to the seller.

(4) The minister may, in an order made under

subsection (1), make provision for the remuneration, disbursements and

indemnification of the trustee out of that money or otherwise as the minister

may specify.

Section 16 of the Act is repealed and the

following is substituted:

Offence

(1) A

person shall not interfere with or obstruct a person in the course of a lawful

investigation or examination under this Act or the regulations.

(2) A person who contravenes a provision of this

Act or the regulations is liable on

summary conviction to a fine of not less than

$500 and not more than

(a) $100,000; or

(

b) an amount equal to 3 times the amount obtained

by the person as a result of the offence, whichever is greater,

or to a term of imprisonment of not more

than 2 years, or to both a fine and imprisonment.

(3) Where a person is convicted of an offence

under this Act or the regulations, the court making the conviction may, in

addition to another penalty, order the person convicted to make compensation or

restitution to a person or to the assurance fund where the person who has

suffered the damages has been paid from the fund under the authority of

section

8. The Act is amended by adding immediately after

section 16 the following:

Limitation period

16.1 A

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

years from date the offence was discovered by the minister.

Earl G. Tucker, Queen's Printer