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This is an unofficial archived version of The Consumer Protection Act

as enacted by SM 1987-88, c. 9 on July 17, 1987.

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R.S.M. 1987, c. C200

The Consumer Protection Act

Table of contents

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1(1)

In this Act

"assignee" includes any person in whom the right or benefit concerned has become vested, as a result of any assignment or series of assignments; ("cessionnaire")

"borrower" means a person borrowing money or obtaining credit and includes a buyer of goods or services on credit and a hirer of goods on hire-purchase, but does not include a buyer of goods or services on credit or a hirer of goods on hire-purchase where those goods or services or both are to be used for the primary purpose of carrying on a business; ("emprunteur")

"bureau" means the Consumers' Bureau; Office")

"buyer" includes a hirer on a retail hire-purchase; ("acheteur")

"cash price" of any goods or services means the price that would be charged by the seller for goods or services to a buyer who paid cash for them at the time of purchase and includes

(

a) any amount paid by a buyer for tokens, coupons, certificates or other documents or things that are redeemable or exchangeable for all or part of the price of the goods or services, and

(

b) the amount of sales tax paid by the buyer or hirer in the transaction; ("prix au comptant")

"collection agent" means any person who

(

a) collects or attempts to collect money owing to others, or

(

b) is used by others to levy distress or seize goods, or

(

c) collects money under any name which differs from that of the creditor to whom the money is owed, or

(

d) offers or undertakes to act for a debtor in arrangements or negotiations with his creditors or receives money from a debtor for distribution to his creditors, or

(

e) solicits accounts for collection or offers or undertakes to collect debts for others either immediately or at a future date, or

(

f) writes letters, or makes telephone or personal calls on behalf of others for the purpose of inducing a debtor to pay a debt, but does not include

(

g) a person who accepts payment of accounts on behalf of creditors but who does not otherwise negotiate with or in anyway attempt to obtain payment from debtors in respect of the amount owing, or

(

h) a chartered bank, or

(

i) a credit union, or

(

j) a trustee licensed under the Bankruptcy Act acting in that capacity, or

(

k) a duly appointed officer of a court, or

(

l) a barrister or solicitor entitled to practice in Manitoba and acting in that capacity, or (

m) a trust company, or

(

n) a person registered under The Real Estate Brokers Act as a real estate broker acting in that capacity, or a person registered under The Real Estate Brokers Act as a salesman acting in that capacity, or (

o) a person licensed under The Insurance Act as an insurance agent acting in that capacity, or

(

p) a person registered under The Mortgage Dealers Act as a mortgage dealer acting in that capacity, or

(

q) a person appointed under The Corporations Act as a liquidator acting in that capacity; ("agent de recouvrement")

"cost of borrowing" means

(

a) where used in connection with a retail sale or hire-purchase of goods or services or both otherwise than on variable credit, the difference between

(

i) the total amount which the buyer is required to pay in the transaction (including any down payment and the value ascribed in the contract to any trade-in or other allowance to him), if all payments are made as they fall due, and

(ii) the total cash price as described in subsection 4(2) or 5(2);

(

b) where used in relation to a loan agreement, the difference between

(

i) the total amount that the borrower has to pay in the transaction, if all payments are made as they fall due, and

(ii) the aggregate of the amounts described in clauses 13(2)(a), (b), (

c) and (d) (other than any amount which is declared by

section 20 to be part of the cost of borrowing) subject to such adjustment thereof as may be required by subsection 14(1) or (2), if applicable;

(

c) where used in relation to a transaction to which subsection 14(3), the difference between

(

i) the total amount which the borrower is required to pay in the transaction (including any down payment and the value ascribed in the agreement to any trade-in or other allowance to him), if all payments are made as they fall due; and

(ii) the aggregate of the total cash price of the goods or services, or both, being purchased and the amounts described in clauses 14(3)(

b) and (c);

(

d) where used in relation to variable credit, the charges that the buyer or borrower is required to pay periodically on the unpaid balance from time to time for the privilege of purchasing or borrowing on variable credit; ("frais d'emprunt" )

"court" means the Court of Queen's Bench; ("tribunal")

"credit grantor" means a person lending money or extending credit and includes a seller of goods or services on credit and a person letting goods on hire-purchase; ("fournisseur de crédit")

"debtor" includes a borrower and any person who is responsible for the payment of a debt by virtue of guaranteeing a borrower's liability to pay the debt; ("débiteur")

"director" means the person employed by the government under the minister and designated as the director of the bureau, and includes a deputy of the director; ("directeur")

"direct seller" means the person who, on behalf of a vendor, makes any offer, solicitation, proposal or approach which is intended to result in a sale to which

Part VII applies; ("démarcheur")

"goods" means chattels personal other than things in action or money, and includes, food products, emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale, and chattels which are to be affixed to land upon or after delivery thereof; ("objets")

"instalments of approximately equal amount" means a series of instalments in which the amount of any one instalment is not different from the equal amounts of all other instalments by more than one dollar multiplied by the number of instalments required to be paid; ("versements à peu près égaux")

"legal rate" of interest means the rate from time to time payable under the Interest Act (Canada) on liabilities on which interest is payable but on which no other rate is fixed; ("taux légal")

"loan agreement" means a document or memorandum in writing

(

a) evidencing a loan of money; or

(

b) made or given as security for a loan of money; or

(

c) made or given as security for a past indebtedness; ("convention de prêt")

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")

"money lender" means a person who carries on the business of money lending or advertises himself, or holds himself out in any way, as carrying on that business, but does not include a registered pawn broker as such; ("prêteur d'argent")

"mortgage" , "mortgagee" , "mortgage money" and "mortgagor" have the meanings assigned to them by The Mortgage Act; ("hypothèque", "créancier hypothécaire", "somme garantie par une hypothèque", "débiteur hypothécaire")

"prescribed" means prescribed by the regulations made under this Act; ("prescrit")

"retail hire-purchase" of goods means any hiring of goods from a person in the course of his business in which

(

a) the hirer is given an option to purchase the goods; or

(

b) it is agreed that upon compliance with the terms of the contract the hirer will either become the owner of the goods or will be entitled to keep them indefinitely without any further payment;

except

(

c) a hiring in which the hirer is given an option to purchase the goods exercisable at any time during the hiring and which may be determined by the hirer at any time prior to the exercise of the option on not more than two months' notice without any penalty;

(

d) a hire-purchase of goods by a hirer who himself intends either to sell them or to relet them for hire by others unless the goods are intended for resale or re-let in a manner to which

Part VII of this Act applies;

(

e) a hire-purchase by a hirer who is a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(

f) a hire-purchase of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(

g) a hire-purchase in which the hirer is a corporation;

(

h) a hire-purchase of goods the cash price of which exceeds $25,000.; and

(

i) a hire-purchase of goods by a hirer who himself intends to use them or uses them for the primary purpose of carrying on a business, unless the goods are intended for resale or re-let in a manner to which

Part VII applies; ("location-vente au détail")

"retail sale" of goods or of services or of both means any contract of sale of goods or services or both made by a seller in the course of his business except

(

a) any contract of sale of goods which are intended for resale by the buyer in the course of his business unless the buyer intends to resell or re-let the goods or services, or both, in a manner to which

Part VII applies;

(

b) any contract of sale to a retailer of a vending machine or a bottle cooler to be installed in his retail establishment;

(

c) any contract of sale of farm machinery and equipment to which The Farm Machinery and Equipment Act applies;

(

d) any contract of sale to a corporation;

(

e) a sale in which the cash price of the goods or services or both exceeds $25,000.00; and (

f) any contract or sale of goods or services intended to be used or used by the purchaser for the primary purpose of carrying on a business, unless the goods or services are intended for resale or re-let in a manner to which

Part VII applies; ("vente au détail")

"sale" includes any transaction whereby the whole or part of the price is paid or satisfied by the exchange of other property, real or personal; ("vente")

"sale of goods" includes any transaction in which goods are sold, whether separately or together with services; ("vente d'objets")

"sale of services" means furnishing or agreeing to furnish services and includes making arrangements to have services furnished by others and any transaction in which services are sold, whether separately or together with goods; ("vente de services")

"seller" includes a person who lets goods on hire by a retail hire-purchase; ("vendeur")

"services" includes

(

a) work, labour and other personal services;

(

b) privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, funerals, cemetery accommodations and the like; and

(

c) insurance provided by a person other than the insurer; ("services")

"time sale agreement" means an agreement evidencing a time sale; ("convention de vente à tempérament")

"time sale" means

(

a) any retail sale of goods or of goods and services under which possession of the goods is to be delivered to the buyer, but the transfer of the property in the goods to the buyer is to take place subsequently to such delivery upon payment by him of the whole or part of the price and cost of borrowing, if any, whether or not such transfer is also subject to the fulfilment of some other condition;

(

b) any retail hire-purchase of goods; and

(

c) for the purpose of sections 46 to 56 any retail sale of goods or of goods and services in which the seller takes back a chattel mortgage on those goods to secure payment of the whole or part of the price; ("vente à tempérament")

"variable credit" means credit made available under an agreement whereby the credit grantor agrees to make credit available to be used from time to time, at the option of the borrower, for the purpose of a loan of money, or the purchase of goods or services or both, from time to time, and, without limiting the generality of the foregoing, includes credit arrangements commonly known as revolving credit accounts, budget accounts, cyclical accounts and other arrangements of a similar nature, but does not include any agreement or arrangement in which there is neither a cost of borrowing payable by the borrower nor any additional charge, other than court costs, payable by the borrower in the event of default; ("crédit variable")

"variable rate agreement" means an agreement that is subject to variations in the true annual percentage rate of the cost of borrowing; ("convention assujettie à un taux variable")

"vendor" means the person who makes on his own behalf, or uses others to make on his behalf, any offer, solicitation, proposal or approach which is intended to result in a sale to which

Part VII applies. ("marchand")

Non-application of exception.

1(2)

The exceptions mentioned in clause (

h) of the definition "retail hire-purchase" and in clause (

e) of the definition "retail sale" do not apply to mobile homes the cash price of which exceeds $25,000., if the mobile homes are used primarily for residential purposes.

Rules to determine price and cost of borrowing.

2(1)

For the purpose of determining whether

(

a) the cost of borrowing in a sale or hire-purchase exceeds $10.; or

(

b) the cash price of goods or services or both comprised in a sale or hire-purchase exceeds $25,000.;

the following rules apply:

(

c) The cost of borrowing in all sales and hire-purchases which are part of the same transaction shall be added together.

(

d) The cash price of goods and services comprised in all sales and hire-purchases which are part of the same transaction shall be added together.

(

e) Unless the contrary is proved, all sales and hire-purchases made between the same seller and the same buyer on the same day shall be presumed to be part of the same transaction.

Disclosure of cash price of goods or services.

2(2)

The cash price of goods or services or both shall be disclosed by the seller to the buyer or hire purchaser in such manner as may be required by the regulations.

Application of Act.

Nothing in this Act applies to any loan made by, or any security given to, the Federal Business Development Bank, the Canadian Farm Credit Corporation, Canada Mortgage and Housing Corporation, Manitoba Development Corporation or The Manitoba Agricultural Credit Corporation.

PART I

DISCLOSURE OF COST OF BORROWING

Application of section.

4(1)

This

section applies to every retail sale of goods or services or goods and services on credit in which there is any cost of borrowing payable by the buyer except

(

a) a sale made on variable credit; and

(

b) a sale in which the cost of borrowing does not exceed $ 10.

Contents of agreement.

4(2)

Every sale to which this

section applies shall be evidenced by a writing, signed by the buyer or his agent prior to, or at the time of delivery of the goods or performance of the services which shall contain a description of the goods or services and shall state

(

a) the cash price of the goods included in the sale;

(

b) the amount of any applicable delivery or installation charge, if not included in the cash price of the goods;

(

c) any insurance charges actually paid or to be paid by the seller to an insurer on behalf of the buyer on his request;

(

d) the registration fee, if any;

(

e) the total of the amounts mentioned in clauses (a), (b), (

c) and (d);

(

f) the amount or value of any down payment, trade-in or other allowance made to the buyer;

(

g) the balance of the total cash price, being the difference between the total mentioned in clause (

e) and the amount mentioned in clause (f);

(

h) the total cost of borrowing expressed as one sum in dollars and cents;

(

i) the balance owing, being the aggregate of the balance mentioned in clause (

g) and the amount mentioned in clause (h);

(

j) the details of the manner in which the balance owing is to be paid, as required by

section 7 or 9;

(

k) the aggregate of the cost to the buyer being the total mentioned in clause (

e) and the amount mentioned in clause (h) ;

(

l) the true annual rate of the cost of borrowing calculated in accordance with

section 10 and the regulations expressed as a percentage; and

(

m) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement.

4(3)

A variable rate agreement under this

section shall set out all the elements in clauses (2)(

a) to (

m) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(1) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice.

4(4)

Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this

section a written notice that shall set out as of the date of the notice

(

a) the amount of credit outstanding;

(

b) the true annual rate being charged;

(

c) the periodic payment and the number of payments remaining to be made;

(

d) the projected final payment;

(

e) the total obligation remaining; and

(

f) the projected total cost of borrowing expressed as one amount in dollars and cents.

Consequence of failure to disclose.

4(5)

Where a variable rate agreement under this

section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.

Application to hire-purchase.

5(1)

This

section applies to every retail hire-purchase of goods in which the cost of borrowing exceeds $10.

Contents of agreement.

5(2)

Every hire-purchase to which this

section applies shall be evidenced by a writing, signed by the hirer or his agent prior to, or at the time of, delivery of the goods, which shall contain a description of the goods and shall state

(

a) the cash price of the goods included in the hire-purchase:

(

b) the amount of any applicable delivery or installation charge, if not included in the cash price of the goods;

(

c) any insurance charges actually paid or to be paid by the seller to an insurer on behalf of the hirer on his request;

(

d) the registration fee, if any ;

(

e) the total cash price, being the aggregate of the amounts mentioned in clauses (a), (b), (

c) and (d);

(

f) the amount or value of any down payment, rent paid or to be paid in advance of delivery or on delivery, trade-in or other allowance made to the hirer;

(

g) the balance of the total cash price, being the difference between the total mentioned in clause (

e) and the amount mentioned in clause (f);

(

h) the total cost of borrowing, being the difference between the balances mentioned in clauses (

i) and (

g) expressed as one sum in dollars and cents;

(

i) the balance owing, being the aggregate of the rent to be paid by the hirer subsequent to delivery of the goods, and of all further payments, if any, not included in the rent which the hirer will have to pay in order to purchase or become the owner of the goods;

(

j) the details of the manner in which the balance owing is to be paid, as required by

section 7 or 9;

(

k) the aggregate of the cost to the hirer being the total of the amounts mentioned in clauses (

e) and (h);

(

l) the true annual rate of the cost of borrowing calculated in accordance with

section 10 and the regulations expressed as a percentage; and

(

m) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement.

5(3)

A variable rate agreement under this

section shall set out all the elements in clauses (2)(

a) to (

m) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(1) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice.

5(4)

Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this

section a written notice that shall set out as of the date of the notice

(

a) the amount of credit outstanding;

(

b) the true annual rate being charged;

(

c) the periodic payment and the number of payments remaining to be made;

(

d) the projected final payment;

(

e) the total obligation remaining; and

(

f) the projected total cost of borrowing expressed as one amount in dollars and cents.

Consequence of failure to disclose.

5(5)

Where a variable rate agreement under this

section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.

Buyer to have copy of agreement.

6(1)

As soon as possible after the writing required by

section 4 or 5, or by subsection 14(3), is received by the seller or his agent, and in any event not later than the time of delivery of the goods or performance of the services, as the case may be, the seller shall give a true copy of the writing to the buyer; but

(

a) if there is more than one buyer, it is sufficient to give a copy to one of them; and

(

b) if the writing was signed by an agent of the buyer, the copy may be given to that agent.

Acknowledgment of receiving agreement.

6(2)

The buyer or agent to whom the copy of the writing is given shall, if so requested by the seller, acknowledge receipt thereof; and in any case the writing is not binding on the buyer unless a copy thereof has been given as provided herein.

Right to accounting.

6(3)

A buyer or hirer is entitled upon request to obtain from a seller, his successors or assigns, at least once during any calendar year, or at any time where a dispute arises between the buyer or hirer and seller, as the case may be, a detailed account of the buyer's or hirer's indebtedness to the seller, under

section 4, 5, 12, or 14.

Director may order accounting.

6(4)

Where a seller within 30 days after a request made under subsection (3) fails, refuses or neglects to provide the accounting requested, the buyer or hirer may refer the matter to the director who may order the seller to provide the accounting in accordance with subsection (3) and within such time as may be specified by the director.

Dates of payments.

Subject to

section 9, the details, required by

section 4 or 5, of the manner in which the balance owing is to be paid shall include the date and the amount of each payment to be made, except only that where that manner consists of, or includes, a succession of instalments, of approximately equal amount, payable monthly or at any other regular periods, it is a sufficient statement of that succession of instalments to state them in the following form:

"equal consecutive payments of $ each on the first day of each month commencing on the 1st day of , , and ending on the 1st day of , , totalling $

with such changes as may be necessary to fit the circumstances of the case.

Delivery of goods, etc.

8(1)

Subject to

section 9, if the writing required by

section 4 or 5 is signed prior to the delivery of the goods or performance of the services, the seller shall deliver the goods, or perform the services, not later than seven days after the delivery date, which is

(

a) the date for delivery or performance fixed by the writing; or

(

b) if none is so fixed, the date on which the writing is received by the seller or his agent.

Late delivery.

8(2)

If the seller does not deliver the goods or perform the services within the time limited by subsection (1), the buyer is entitled to a rebate of part of the cost of borrowing, calculated by applying the true annual rate of the cost of borrowing to the amount of the balance owing over the period of the seller's default.

Rights preserved.

8(3)

Nothing herein derogates from the buyer his right, if any, in the transaction to rescind or cancel for late delivery, failure to perform or otherwise.

Where

sec. 8 not to apply.

Where, in any case to which either

section 4 or 5 applies, the date of delivery of the goods or performance of the services is uncertain, the date or dates on which the balance owing is to be paid may be described in the writing by reference to the date on which the goods are delivered or services performed; and if that is done

section 8 does not apply.

Date for calculation of cost of borrowing.

Except as otherwise prescribed by regulation, the true annual rate of the cost of borrowing, stated in a writing required by

section 4, 5 or 12, shall be calculated over the period commencing

(

a) where

section 8 or 12 applies, with the delivery date referred to therein; and

(

b) in any other case, with the date on which the delivery of the goods or performance of the services is completed.

Payments before delivery or service.

For the purposes of clause 4(2)(

f) and clause 5(2)(f), any payment that is made or to be made by the buyer prior to the delivery of the goods or performance of the services is a down payment, notwithstanding that it may be made after the writing is signed.

Application of section.

12(1)

This

section applies to every

(

a) loan of money other than a loan secured exclusively on real property; or

(

b) retail hire-purchase; or

(

c) retail sale;

made on variable credit in Manitoba.

Contents of master agreement.

12(2)

Every extension of variable credit by a credit grantor shall be governed by a master agreement, which shall be signed by the borrower before the first extension of variable credit to him, and which shall state

(

a) at what periods payments are to be made by the borrower;

(

b) the amount of the minimum payments that will be required from the borrower, but, if this may vary according to the amount of credit extended or outstanding, the method of calculating the minimum payments shall be set out in an intelligible manner;

(

c) the prevailing rate or rates of charges that the borrower will be required to pay periodically for the variable credit extended to him, expressed as a percentage or percentages per annum of the balance of principal and accrued charges outstanding at the commencement of the period;

(

d) if the charges payable on payments in arrears are to be calculated otherwise than in accordance with clause (c), the manner in which those charges are to be calculated, and the rate thereof expressed as a percentage per annum on the amount in arrears; and

(

e) the conditions under which the true annual rate may vary.

Table of charges.

12(3)

Subject to subsection (4), the master agreement shall also contain a table showing the amount in dollars and cents of the monthly charge produced by the applicable rate or rates on outstanding balances, using a sufficiently large number of representative amounts to give a fair representation of the dollars and cents charges applicable to various sizes of outstanding balance.

Separate document for charges.

12(4)

At the option of the credit grantor, the table required by subsection (3) may, instead of being included in the master agreement, be embodied in a separate document, which shall be given to the borrower before he signs the master agreement.

Delivery of master agreement.

12(5)

The credit grantor shall give a copy of the master agreement to the borrower before the first extension of credit thereunder.

Several master agreements.

12(6)

There may be more than one master agreement in force concurrently between a credit grantor and a borrower if

(

a) each agreement relates to a different category of goods or services; or

(

b) the borrower has the right to decide under which agreement any purchase or loan of money shall be made.

Agreement to govern credit.

12(7)

Subject to subsection (6), every extension of variable credit by a credit grantor to a borrower who has signed a master agreement shall be governed by the last master agreement signed by the borrower.

Copies of master agreement.

12(8)

A credit grantor shall, on demand, but not more often than once a year, furnish to a borrower a photostatic copy of any master agreement, signed by that borrower, that is then in force.

Variations in master agreement.

12(9)

Except as otherwise provided by regulation a credit grantor may increase

(

a) the rate of charges payable by the borrower; and

(

b) the minimum periodic payments payable by the borrower;

in respect of purchases of goods and services and loans of money including those made previously but any increase related to the purchase of goods and services shall only be effective three months after giving the borrower written notice of the increase.

Statement of disclosure.

12(10)

Except as provided by regulation, a credit grantor shall give at least every six months to the borrower in respect of a loan of money to which this

section applies a written notice that shall set out as of the date of the notice

(

a) the amount of credit outstanding;

(

b) the true annual rate being charged; and

(

c) the periodic payments.

Decreasing payments or rates.

12(11)

A credit grantor may decrease the rate or rates of charges or the minimum periodic payments, or both, payable by a borrower, in respect of subsequent purchases, or subsequent loans of money, or both, or in respect of the borrower's then outstanding balance, or subsequent purchases, or subsequent loans of money, or either of them.

Liability of borrower under master agreement.

12(12)

Subject to subsections (14) and (15), a borrower to whom variable credit has been extended is liable to pay periodic charges for that credit in accordance with clause (2)(

c) and subsections (9) and (11); but, unless he defaults in his payments, no other cost of borrowing whatsoever.

New master agreement.

12(13)

A credit grantor may at any time require a borrower to sign a new master agreement as a condition of extending fresh credit; but a refusal by the borrower to sign a new master agreement does not affect his liability in regard to credit already extended.

Where rate of charges not stated.

12(14)

Where a master agreement indicates that the borrower is to pay periodic charges for variable credit extended to him, but either does not state any rate for such charges or expresses it otherwise than as a percentage per annum of the balance outstanding at the commencement of the period, the charges under that agreement shall be calculated at the legal rate of interest on the said balance.

Agreements before Act.

12(15)

Any agreement for the extension of variable credit entered into before this Act comes into force continues in force notwithstanding that it does not comply with subsection (2) or subsection (3) and subsections (5), (12) and (14) do not apply thereto; but subsections (6), (7), (8), (9), (11) and (13) apply thereto.

Delivery of goods or services on variable credit.

12(16)

If an extension of variable credit for goods or services to which this

section applies is signed prior to the delivery of the goods or performance of the services, the seller shall deliver the goods, or perform the services, not later than seven days after the delivery date, which is

(

a) the date for delivery or performance fixed by the writing; or

(

b) if none is so fixed, the date on which the writing is received by the seller or his agent.

Late delivery.

12(17)

If the seller does not deliver the goods or perform the services within the time limited by subsection (16), the borrower is entitled to a rebate from the seller calculated by applying the true annual rate of the cost of borrowing to the amount owing with respect to those goods or services over the period of the seller's default.

Rights preserved.

12(18)

Nothing herein derogates from the borrower's right, if any. in the transaction to rescind or cancel for late delivery, failure to perform or otherwise.

Application of section.

13(1)

Subject to

section 3, this

section applies to every loan of money made by a money lender except

(

a) a loan secured exclusively on real property;

(

b) a loan of more than $25,000. unless the security for the loan is a mobile home that is used primarily as a residence by the borrower;

(

c) a loan to a corporation;

(

d) a loan made by an insurance company to a policyholder pursuant to a provision of the policy; and

(

e) a loan in which the cost of borrowing does not exceed $10.

Contents of agreement.

13(2)

Every loan to which this

section applies shall be evidenced by a document or memorandum in writing, signed by the borrower, at or before the time the loan is made which shall set out

(

a) the amount advanced or to be advanced to the borrower himself;

(

b) any insurance charges actually paid or to be paid by the money lender to an insurer on behalf of the borrower on his request;

(

c) any registration fee payable on any security taken for the loan;

(

d) any other amount, not being a part of the cost of borrowing, advanced or to be advanced to other persons for the borrower's account, showing the name of each of those persons and the amount advanced or to be advanced to each;

(

e) the total of all amounts stated in clauses (a), (b), (

c) and (d);

(

f) the cost of borrowing expressed as one amount in dollars and cents;

(

g) the total amount to be repaid by the borrower, being the aggregate of the amounts mentioned in clauses (

e) and (f);

(

h) the details of the manner in which the total amount is to be repaid showing the number of payments, and the amount and date of each payment;

(

i) the true annual rate of the cost of borrowing calculated in accordance with the regulations expressed as a percentage; and

(

j) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a rate percentage per annum.

Variable rate agreement.

13(3)

A variable rate agreement under this

section shall set out all the elements in clauses (2)(

a) to (

j) but all calculations therein shall be based on the true annual rate of the cost of borrowing at the time the agreement is signed as set out in clause (2)(

i) and, in addition, the agreement shall clearly set forth in type of not less than 10 point size immediately above the borrower's signature a statement that the agreement is subject to variations in the true annual rate of the cost of borrowing and shall specify the conditions under which the true annual rate may vary and what other changes in the agreement may be made as a result of the variation.

Written notice.

13(4)

Except as provided by regulation, a credit grantor shall give at least every six months to the borrower who is a party to a variable rate agreement under this

section a written notice that shall set out as of the date of the notice

(

a) the amount of credit outstanding;

(

b) the true annual rate being charged;

(

c) the periodic payment and the number of payments remaining to be made;

(

d) the projected final payment;

(

e) the total obligation remaining; and

(

f) the projected total cost of borrowing expressed as one amount in dollars and cents.

Consequence of failure to disclose.

13(5)

Where a variable rate agreement under this

section does not contain the statement required by subsection (3), the credit grantor, notwithstanding the terms of the agreement, shall not be allowed to increase the true annual rate of the cost of borrowing or to make any other changes in the agreement but the borrower shall have the benefit of any term of the agreement which would decrease the true annual rate.

Separate document permitted.

13(6)

The particulars required by clause (2)(

d) need not be set out in the loan agreement or variable rate agreement if

(

a) they are contained in a separate document signed by the borrower not later than the time at which he signs the loan agreement or variable rate agreement;

(

b) the borrower is given a copy of that document at the time he signs it; and

(

c) the total of the amounts shown in that document is set out in the loan agreement or variable rate agreement.

Definition.

13(7)

In this

section "real property" includes leasehold interests therein and things attached to or forming part of the land on which the loan is secured.

Particulars in chattel mortgage.

13(8)

Where a chattel mortgage is taken to secure a loan to which this

section applies the chattels shall be clearly described in the mortgage and the chattel mortgage shall in all cases be deemed to be the document or memorandum in writing required under subsection (2) or (3) and shall contain all the particulars required under that subsection and a copy thereof shall be given by the mortgagee to the mortgagor as required under

section 19.

Refinancing existing indebtedness.

14(1)

Except as otherwise provided in the regulations, where a borrower rearranges with a credit grantor payment any existing debt or debts owing to that credit grantor which arose out of a transaction or transactions to which

section 4, 5, 13 or this section, or any two or more of them, applied, or to which those provisions or any of them would have applied if they, or any of them, had been in force at the time the transaction took place, by any arrangement that has the effect of varying the amount the borrower has to pay or the period over which he has to pay it, the transaction shall be evidenced by a document or memorandum in writing, signed by the borrower in accordance with

section 13 as if the credit grantor were then advancing to the borrower the amount then required to prepay the existing debt or debts without any allowance to the credit grantor under subsection 28(3), and the credit grantor shall furnish to the borrower before he signs the agreement a written computation of that amount; and, where more than one existing debt is included in the rearrangement, a separate computation shall be made in respect of each of them.

Refinancing combined with new loan.

14(2)

Except as otherwise provided in the regulations where a rearrangement of an existing debt or debts under subsection (1) is combined with an additional loan of money by the credit grantor to the borrower, the transaction shall be evidenced by a document or memorandum in writing, signed by the borrower at or before the time the additional loan is made, in accordance with

section 13 as if the credit grantor were then advancing both the amount of the additional loan and the sum then required to prepay the existing indebtedness in accordance with subsection (1); but the loan agreement shall show how the total is divided between these two items, and the borrower shall be given the computation required by subsection (1).

Refinancing combined with further purchase.

14(3)

Except as otherwise provided in the regulations, where a borrower wishes to combine the payment of an existing debt or debts with payments for a new purchase from the same credit grantor of goods or services, or both, to which

section 4 applies, the transaction shall be evidenced by a writing, signed by the borrower prior to, or at the time of, delivery of the goods and services, which combines the information required to be given by

section 4 and by subsection (1) by stating

(

a) the information required by clauses 4(2)(

a) to (

g) in respect of the sale of the goods and services;

(

b) the amount required to prepay the existing indebtedness in accordance with subsection (1);

(

c) any registration fee which is payable only in respect of the refinancing of the existing indebtedness;

(

d) the total present debt, being the aggregate of the balance of the total cash price of the goods and services and the amounts mentioned in clauses (

b) and (c);

(

e) the total cost of borrowing expressed as one amount in dollars and cents;

(

f) the balance owing, being the aggregate of the amounts mentioned in clauses (

d) and (e);

(

g) the details of the manner in which the balance owing is to be paid, as required by

section 7;

(

h) the total amount the borrower will be paying to acquire the goods and services and retire the existing indebtedness, being the aggregate of any down payment, trade-in, or other allowance to the borrower on the purchase of the goods and services and the balance owing mentioned in clause (f);

(

i) the true annual rate of the cost of borrowing, calculated in accordance with

section 10 and the regulations, expressed as a percentage; and

(

j) the total additional charge, if any, other than court costs, to be paid in the event of default expressed as a percentage per annum; and the credit grantor shall also furnish the borrower with a written computation of the amount required to prepay the existing indebtedness as provided by subsection (1) thereof.

Application of payments.

14(4)

In any transaction to which subsection (3) applies, all payments made by the borrower on account of the balance owing shall be applied in payment of

(

a) first, the registration fee mentioned in clause (3)(c);

(

b) secondly, the amount required to prepay the existing indebtedness;

(

c) thirdly, the cost of borrowing;

(

d) fourthly, the balance of the total cash price of the goods and services;

and, when the borrower's payments have satisfied the amounts mentioned in clauses (

a) and (b), any security held by the credit grantor for the existing indebtedness is discharged; and, if the goods being purchased are the subject of a time sale, the whole cost of borrowing is secured on them, notwithstanding subsection 56(1).

Refinancing not to be combined with hire-purchase.

14(5)

The combination, as one obligation, of rent on a retail hire-purchase to which

section 5 applies with instalment payments on account of an existing indebtedness is prohibited.

Additional insurance charges.

14(6)

In any transaction to which this

section applies, if

(

a) any insurance previously charged to the borrower in a transaction from which the existing indebtedness arose is to be continued in force; and

(

b) new insurance is charged to the borrower;

the agreement shall show whether the new insurance is in addition to the existing insurance or is wholly or partly in substitution for it, and in the latter event shall also show the amount of the unearned premium on the insurance being replaced, and the insurance charges charged to the borrower shall not exceed the net amount payable after credit for such unearned premium.

Dates for periodic payments.

Where the manner in which the total amount is to be repaid consists of, or includes, a succession of instalments of approximately equal amounts payable monthly, or at any other regular periods, it is a sufficient statement of that succession of instalments for the purpose of clause 13(2)(

h) for an agreement or a variable rate agreement under

section 13 or clause 14(3)(

g) to state them in the form set out in

section 7.

Loans advanced over period.

Where any loan to which

section 13

applies is to be advanced by stages over a period of more than seven days, the loan agreement shall so state and shall

(

a) name a date (hereinafter referred to as "the interest adjustment date") by which all advances are to be completed;

(

b) provide that to the interest adjustment date the only cost of borrowing payable by the borrower shall be interest at the annual rate specified calculated on the amount from time to time advanced, and state when such interest shall be paid;

(

c) exclude that interest from both the cost of borrowing and the total amount to be repaid by the borrower;

(

d) state clearly that that interest will be in addition to the cost of borrowing and total amount to be repaid shown in the agreement;

(

e) fix as the date of the first repayment to be made by the borrower a date subsequent to the interest adjustment date; and

(

f) state as the true annual rate of the cost of borrowing the rate calculated over the period commencing with the interest adjustment date.

Advancing loan.

Except as provided by

section 16, the full amount of any loan to which

section 13 applies shall be advanced not later than seven days after

(

a) the date fixed by the loan agreement, where the date is so fixed; or

(

b) where the date is not fixed by the loan agreement, the date on which the agreement is signed by the borrower;

and the true annual rate of the cost of borrowing shall be calculated over the period commencing with the date so fixed, or, if none is so fixed, with the date on which the agreement is signed by the borrower.

Rebate where loan not advanced.

Where a credit grantor fails to advance the full amount of a loan before the interest adjustment date or within the time limited for that purpose by

section 17, as the case may be, the borrower is entitled to a rebate of part of the cost of borrowing, calculated by applying the true annual rate of the cost of borrowing to the amount not so advanced over the period of the credit grantor's default.

Delivery of copy of agreement.

19(1)

As soon as possible after a loan agreement required by

section 13 or 14 is received by the credit grantor or his agent, and, in any event, not later than the time of the first advance made by the credit grantor thereunder, the credit grantor shall give a true copy of the loan agreement to the borrower; but if there is more than one borrower, it is sufficient to give a copy to one of them.

Right to accounting.

19(2)

A borrower is entitled upon request to obtain from a lender, his successors or assigns, at least once during any calendar year, or at any time where a dispute arises between the borrower and lender, a detailed account of the borrower's indebtedness to the lender under

section 13 or 14.

Director may order accounting.

19(3)

Where a lender within 30 days after a request is made under subsection (2) fails, refuses or neglects to provide the accounting requested the borrower may refer the matter to the director who may order the lender to provide the accounting in accordance with subsection (2) and within such time as may be specified by the director.

Payments on borrower's account as cost of borrowing.

For the purposes of clauses 13(2)(

d) and (

e) for an agreement or a variable rate agreement, a payment made to another person for the borrower's account is part of the cost of borrowing if it is made to discharge a liability that the borrower would not have incurred if there had been no loan made to him, or deemed to be made to him, under

section 14, as the case may be.

Compliance with requirements for agreements.

Except as may otherwise be provided by regulation, if a writing or agreement required by

section 4, 5,12,13 or 14 states in an intelligible manner the information required by the applicable section, or by any other provision of this Part, it is not necessary that it should set it out in any particular order, except that in a transaction to which subsection 14(3) applies, the information mentioned in clause (

a) thereof shall be stated first.

Proof of insurance.

22(1)

A credit grantor shall forward promptly the application for any insurance that is charged to a borrower and does not form part of the cost of borrowing; and he shall furnish proof of the insurance to the borrower as soon as it is effected.

Liability for insurance premium.

22(2)

A borrower is liable to pay to the credit grantor only the premium payable from the time the insurance becomes effective to the date of expiry of the policy or any extension thereof or to the date on which the policy is cancelled; and, where the policy of insurance is cancelled, the debtor shall receive the full amount of the unearned premium calculated by the insurer.

Incorrect statements in agreements.

23(1)

Except as otherwise provided in the Interest Act (Canada), and subject to subsections (2) and (3), if a writing required by

section 4 or 5

(

a) does not contain a statement of the true annual rate of the cost of borrowing or understates it by more than the margin permitted by the regulations; or

(

b) omits or states incorrectly any of the information required by clauses 4(

a) to (

k) or clauses 5(2)(

a) to (k), as the case may be, or by

section 9:

the seller may recover from the buyer no more than the total cash price with simple interest thereon, or on so much thereof as from time to time remains owing, at the legal rate applied and calculated from the date of the writing, and if the buyer has paid the seller more than that amount, he may recover the excess from the seller or if the writing has been assigned, from the assignee.

Inadvertent mistakes in cost of borrowing.

23(2)

Where clause (l)(

a) applies, the court may permit the seller to recover, or to keep, as the case may be, more than the total cash price and simple interest thereon at the legal rate if it is satisfied that the omission or misstatement was due to inadvertence; but the seller may not, in any case, recover or keep a cost of borrowing which would exceed the rate stated in the writing to be the true annual rate.

Inadvertent mistakes in other statements.

23(3)

Where clause (l)(

b) applies, the court may permit the seller to recover, or keep, as the case may be, the full amount that the buyer has agreed to pay, if it is satisfied that the omission or misstatement was due to inadvertence and the buyer has not thereby been misled as to the amount he had to pay; but where the result of a misstatement is to produce, in the writing, inconsistencies that make it uncertain how much the buyer has to pay, the seller may not, in any event, recover from the buyer more than the lowest amount which the writing can reasonably be construed to require.

Investigation of inadvertent mistakes.

23(4)

Where a seller claims that any omission or misstatement was due to inadvertence, the court shall not adjudicate thereon until the director has been advised thereof, and he has made any investigation he may consider appropriate.

Appearance by director.

23(5)

Where subsection (4) applies, the director may attend by counsel at the hearing and adduce such evidence as he desires; and if, in the result, the court is not satisfied that the omission or misstatement was due to inadvertence, it may order the seller to pay the director's costs.

Understatement of cost of borrowing rate on variable credit

24(1)

Except as otherwise provided in the Interest Act (Canada), where any master agreement required by

section 12 understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations, the borrower is not required to pay charges calculated at any rate greater than the legal rate of interest.

Where no master agreement on variable credit.

24(2)

Except as otherwise provided in the Interest Act (Canada) or in

section 12, a credit grantor who extends variable credit in a transaction to which

section 12 applies otherwise than in pursuance of either

(

a) a master agreement that complies with

section 12; or

(

b) a written agreement made prior to the commencement of this Act;

may not recover from the borrower any cost of borrowing.

Cost of borrowing on variable credit restricted.

24(3)

A credit grantor who has extended variable credit in a transaction to which

section 12 applies shall not exact, or attempt to exact, from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada).

Recovery of excess interest paid.

24(4)

Where a credit grantor who has extended variable credit in a transaction to which

section 12 applies receives from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada), the borrower may recover from the credit grantor the amount of such excess.

Loans not in writing or at wrong rate.

25(1)

Except as otherwise provided in the Interest Act (Canada), where a loan to which

section 13 applies

(

a) is not evidenced by a loan agreement or variable rate agreement containing the information required by clauses 13(2)(

a) to (i); or

(

b) is evidenced by a loan agreement or variable rate agreement that understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations;

the credit grantor may recover no more than the aggregate of the amount advanced to the borrower himself and any amount properly advanced to any other person for the borrower's benefit, with interest thereon at the legal rate.

Refinancing not properly stated.

25(2)

Except as otherwise provided in the Interest Act (Canada), where a transaction to which

section 14 applies

(

a) is not evidenced by an agreement containing the required information; or

(

b) is evidenced by an agreement that understates the true annual rate of the cost of borrowing by more than the margin permitted by the regulations;

the transaction is voidable at the option of the borrower; and if the borrower elects to avoid it, the credit grantor may recover no more than the aggregate of

(

c) the amount properly payable under the terms of the obligation being rearranged; and

(

d) the amount of any additional loan, if subsection 14(2) is applicable, or the total cash price of the goods and services sold to the borrower, if subsection 14(3) is applicable, with interest thereon at the legal rate.

Recovery of excess costs of borrowing.

25(3)

Where a credit grantor, in a transaction to which

section 13 or 14 applies, receives from the borrower payment of any cost of borrowing in excess of the amount permitted by this Act or by the Interest Act (Canada), the borrower may recover from the credit grantor the amount of excess.

Definition of "advertisement".

26(1)

In this

section "advertisement" includes

(

a) any price tag, ticket or notice attached to or displayed near the goods;

(

b) any advertisement in a newspaper, magazine or other publication circulated in Manitoba, and any other form of notice circulated to residents of any area in Manitoba; and

(

c) any message broadcast by television or radio that can reasonably be expected to be received by the public in Manitoba.

Certain restrictions on advertising.

26(2)

No advertisement of goods for retail sale on credit, or for retail hire purchase under

section 4, 5, 12 or 14 and no advertisement for loans under

section 13 or 14 shall state an amount of loan, the monthly or periodic payment, any reference to the cost of borrowing, or any one or more of them unless it also states

(

a) in the case of retail sales on credit or retail hire purchase

(

i) the total cash price of the goods or services;

(ii) the aggregate cost to be paid by the credit buyer or hirer in the transaction;

(iii) the number, amount and total sum of the monthly or periodic payments required; and

(iv) the cost of borrowing expressed as one sum in dollars and cents and as a rate percentage per annum calculated in accordance with the regulations; and

(

b) in the case of loans

(

i) the amount of the loan;

(ii) the number, amount and total sum of the monthly or periodic payments required; and

(iii) the cost of borrowing expressed as one sum in dollars and as a rate percentage per annum calculated in accordance with the regulations.

Print size to be easily readable.

26(3)

The statements which are required by subsection (2) to be included in an advertisement shall in all cases be printed in a size which makes them easily readable and shall in the case of an advertisement on television be displayed for a reasonable length of time.

Certain alternative arrangements prohibited.

26(4)

Where a seller or lender advertises any terms, conditions or costs of borrowing in any credit arrangement that may be available to a buyer or borrower and such terms, conditions or costs are not made available to a buyer or borrower as advertised, the seller or lender shall not offer or undertake to make alternative arrangements, or participate in any way in making alternative arrangements, whereby the buyer or borrower may incur more than one debt in making the purchase or loan unless

Offence in advertising.

27(1)

Subject to subsection (2), no person carrying on business in Manitoba shall advertise or cause others to advertise his goods in a manner prohibited by

section 26.

Exception.

27(2)

Where a person also carries on business outside Manitoba, subsection (1) does not apply to any advertisement of his goods that either

(

a) is contained in a newspaper or magazine circulating principally in a particular locality outside Manitoba; or

(

b) states expressly that the credit terms offered do not apply in Manitoba.

Onus of proof.

27(3)

Where any advertisement of the goods of a person carrying on business in Manitoba is contained in a newspaper or magazine published outside Manitoba, or is sent by mail from a point outside Manitoba, or is broadcast from outside Manitoba, the onus of proof lies on that person to prove that he did not cause his goods to be so advertised.

PART II

PREPAYMENT PRIVILEGES

Application of section.

28(1)

This

section applies to

(

a) every debt which arose out of a transaction to which sections 4, 5 or 13 or subsections 14(1), (2) or (3) applies; and

(

b) to every debt owing before this Act came into force and to which those provisions or any of them would have applied if they had been in force at the time the transaction took place if the credit grantor accepts full prepayment of the balance owing after this subsection comes into force.

Prepayment and rebate.

28(2)

The borrower may at any time prepay the whole of the balance then owing on any debt to which this

section applies; and in so doing he is entitled to a rebate equal to the unearned portion of the cost of borrowing calculated in accordance with the regulations, less the allowance permitted to the credit grantor by subsection (3).

Credit grantor's allowance.

28(3)

The allowance to the credit grantor on prepayment referred to in subsection (2) is one-half of the unearned portion of the cost of borrowing, but in no case more than $10.

Deducting rebate from payment.

28(4)

A borrower who is prepaying a debt under this

section may deduct the rebate to which he is entitled from his payment and tender to the grantor the net amount required to effect the prepayment.

Statement of prepayment.

28(5)

A credit grantor shall furnish, on request, to any borrower who is entitled under this

section to prepay a debt to him, a statement showing the net amount required to effect the prepayment and how that amount is arrived at.

Prepayment of variable credit.

A borrower to whom variable credit has been extended may, at the time when any periodic payment falls due, pay off the whole or any part of the balance owing.

Surrender of security.

Where a borrower has prepaid or paid off the whole of a balance owing under

section 28 or 29, the credit grantor shall surrender or discharge any security that he holds for the indebtedness without further charge to the borrower; except that the credit grantor need not register any document required to effect the surrender or discharge, but may deliver it to the borrower, who shall bear the registration fee thereon.

PART III

RELIEF AGAINST ACCELERATION AND FORFEITURE

Application of Part.

31(1)

This Part applies to any debt owing by a borrower to a credit grantor that is payable by instalments, other than

(

a) a debt secured on real property;

(

b) a debt that arose out of a sale of real property; and

(

c) a debt owed by a corporation.

Definition.

31(2)

In this

section "real property" includes leasehold interests in real property.

Default charges.

32(1)

No agreement creating or relating to a debt to which this Part applies shall provide for any charge to be paid upon any default in payment of an instalment, unless it is expressed as an annual rate on the amount in arrears and the annual rate is applied to the actual amount in arrears for the number of days that the default continues.

Restrictions on default charges.

32(2)

Where the debt arises out of a transaction to which any provision of

Part I applies, the annual rate of default charges shall not exceed the annual rate of the cost of borrowing.

Penalty.

32(3)

Where the agreement states the default charge otherwise than as an annual rate on the amount in arrears, or, in a case to which subsection (2) applies, states an annual rate greater than is permitted by that subsection, the credit grantor may not recover any default charge in excess of an amount equal to interest at the legal rate on instalments in arrears.

Acceleration on default

33(1)

Subject to the restrictions hereinafter set forth, any provision in an agreement providing that, in the event of default in payment of an instalment, the full balance will or may become immediately due and owing is valid and enforceable.

Restrictions on acceleration.

33(2)

The restrictions to which reference is made in subsection (1) are as follows:

(

a) Where the debt arises out of a sale of goods or of goods and services, or a hire-purchase of goods and the seller has not seized the goods or commenced an action to recover the balance of the debt, the buyer may pay the instalments in arrears with the default charges thereon as provided in

section 32; and, in that event, payment of the balance shall not be accelerated by reason of any default so remedied.

(

b) Where the debt arises out of a sale of goods or of goods and services or a hire-purchase of goods, and the seller is entitled to seize the goods and has so seized them, he shall proceed in accordance with

section 46 or 47; and, if the buyer redeems the goods in accordance with those sections, payment of the balance shall not be accelerated by reason of any default so remedied.

(

c) Where the debt is secured by a chattel mortgage, the mortgagor is entitled to relief from acceleration as provided in

section 14 of The Mortgage Act.

(

d) In any other case, the borrower may, at any time before an action is commenced to recover the balance of the debt, pay the instalments then in arrears with the default charges thereon as provided by

section 32; and in that event payment of the balance shall not be accelerated by reason of any default so remedied.

(

e) In any case in which an action has been commenced to recover the balance of the debt, the court may grant relief against acceleration on such terms as it sees fit.

(

f) In any case in which a credit grantor is claiming accelerated payment, and the borrower does not make the payments required to obtain relief under clause (a), (b), (

c) or (d), or is not granted relief under clause (e), as the case may be, the credit grantor may not recover more than the aggregate of

(

i) the amount which the borrower would have had to pay in order to prepay the whole balance of the debt at the time of the default on which the claim for acceleration is based;

(ii) interest thereon from the time of default at the annual rate of the default charges on payments in arrears provided in the agreement or, if no rate is so provided, at the legal rate; and

(iii) any expenses actually incurred by the credit grantor as a result of the default and his taxable costs of the action, if any.

Default after extension.

33(3)

In any case in which a borrower has been granted an extension of time, the time of default referred to in sub-clause (2)(f)(

i) is the time when the borrower fails to comply with the terms of such extension.

Meaning of "payments in default".

33(4)

Except where expressly so stated, references in this Act to payments in default do not include any payments that have become due by virtue of any provision for the acceleration of payments.

Acceleration provisions continue in effect.

33(5)

A provision for acceleration of payments on default operates from time to time as and when default occurs; and the circumstance that a borrower has been relieved from acceleration in accordance with this

section shall not be taken to have exhausted the operation of the provision in respect of subsequent defaults.

Other penalties void.

Any provision in an agreement creating or relating to a debt payable by instalments to which this Part applies that imposes on the borrower, as a consequence of default in payment of an instalment, any pecuniary penalty that is not permitted by sections 32 and 33, is void.

Damages for breach of obligation.

35(1)

Where an agreement creating or relating to a debt imposes on the borrower any obligation in addition to the payment of the debt and the cost of borrowing, if any, and the borrower commits a breach of the obligation, the credit grantor may recover from the borrower as damages for the breach, the amount of the loss he has suffered, and the actual expenses he has incurred as a result of the breach, but not more.

Penalty for breach.

35(2)

Every provision in an agreement creating or relating to a debt that imposes on the borrower a pecuniary penalty, howsoever described, for committing a breach of an obligation in addition to the payment of the debt, imposed on the borrower by the agreement, is void in so far as it would entitle the credit grantor to recover more than the amount permitted by subsection (1), but is effective to prevent the credit grantor from recovering more than the amount of the penalty so specified.

Relief against acceleration, seizure and forfeiture.

Where an agreement creating or relating to a debt imposes on the borrower an obligation in addition to the payment of the debt, and provides that, in the event of a breach thereof,

(

a) payment of the debt shall be accelerated; or

(

b) the credit grantor may seize or take possession of any goods; or

(

c) the interest of the borrower in any goods is or may be forfeited;

the court may relieve the borrower from the effect of the provision on such terms as it thinks just.

Absolute discretion of creditor.

37(1)

Every provision in an agreement creating or relating to a debt that gives, or has the effect of giving, the credit grantor the right to decide whether any given fact or circumstance exists is void.

Powers to preserve security.

37(2)

Notwithstanding subsection (1), an agreement may contain a provision that, if the credit grantor has reasonable cause to believe that the security for the debt is in jeopardy,

(

a) payment of the debt shall be accelerated; or

(

b) the credit grantor may seize or take possession of any goods; or

(

c) that the interest of the borrower in any goods is or may be forfeited;

or any or all of those provisions; and, in that case, it is a question of fact for the court whether or not the credit grantor has reasonable cause for such a belief; but, if he has such cause at the relevant time, it is immaterial whether or not the security is actually in jeopardy.

Relief against powers.

37(3)

The court may relieve the borrower from the effect of a provision mentioned in subsection (2) on such terms as it thinks just.

Granting relief.

The court may grant relief under sections 36 and 37 at any time, and may do so either in a proceeding commenced by the credit grantor to enforce his security or on an application by the borrower; but if the credit grantor gives the borrower written notice which

(

a) specifies the breach complained of, or the facts relied on as giving reasonable cause for the credit grantor's belief, as the case may be;

(

b) informs the borrower of his right to apply for relief; and

(

c) requires the borrower to apply for such relief within 20 days;

the borrower's right to apply for relief expires at the end of those 20 days.

Staying of seizure or action.

39(1)

Where a credit grantor attempts to seize any goods or commences an action with respect to those goods or the payment of moneys owing thereon, the borrower may pay the instalments in arrears together with the default charges thereon as provided in

section 32 and his taxable costs in the action, if any, whereupon the seizure or action shall be stayed.

Return of seized goods where default remedied.

39(2)

Where a credit grantor seizes any goods and the borrower remedies the default or otherwise obtains relief under this Part, the credit grantor shall return the goods to the borrower on payment by the borrower, in addition to any other payment required by this Part, of the costs of seizure in an amount not exceeding that permitted by The Distress Act.

PART IV

TIME SALES

Content of time sale agreement.

40(1)

Subject to sections 42 and 43, every time sale shall be evidenced by a time sale agreement in writing signed by the buyer or his agent prior to, or at the time of, delivery of the goods, containing a description of the goods by which they may be readily and easily known and distinguished, and also containing, in type not less than 10 point in size,

(

a) a statement that the property in the goods is not to pass to the buyer on delivery;

(

b) the conditions upon which the property in the goods is to pass to the buyer; and

(

c) the events upon which the seller may, before the property therein has passed to the buyer, repossess the goods.

Delivery of copy to buyer.

40(2)

The seller shall give a copy of the agreement to the buyer, or to the agent who signed it, not later than the time of delivery of the goods; but if there is more than one buyer, it is sufficient to give a copy to one of them.

Compliance with other requirements.

Every time sale agreement to which

section 4 or 5 or subsection 14(3) is applicable shall also contain the information required thereby.

Time sale under master agreement.

Subject to

section 43, where a seller extends variable credit under a master agreement that provides that all goods sold thereunder are sold on time sales, it is not necessary for the buyer to sign a time sale agreement for any purchase made under that master agreement if

(

a) the master agreement contains, in type not less than 10 point in size, the statements and information required by clauses 40(1)(a), (

b) and (c); and

(

b) there is delivered to the buyer, or his agent, or to one of the buyers, if there is more than one of them, prior to, or at the time of, delivery of the goods, a writing that

(

i) contains a description of the goods by which they may be readily and easily known and distinguished;

(ii) states the cash price of the goods; and

(iii) indicates that the goods were sold on the terms of the master agreement.

Serial numbers or distinguishing marks.

Where an

article bought on a time sale is one of a series of similar articles that are individually distinguished by a serial number or similar distinguishing mark, and, at the time of purchase, it is not known which particular

article will be the one delivered to the buyer,

(

a) if the

article is sold otherwise than on variable credit, the seller may insert the serial number or distinguishing mark in the agreement after it is signed by or on behalf of the buyer, and if that is done after the copy of the agreement required by

section 40 has been given to the buyer, the seller shall give a second completed copy of the agreement to the buyer; but the serial number or distinguishing mark shall be inserted in the agreement and the second copy given to the buyer not later than 20 days after delivery of the article; and

(

b) if the

article is sold on variable credit, the serial number or distinguishing mark may be omitted from the writing required, by

section 42, to be given to the buyer; but a copy of the writing containing the number or mark shall be given to the buyer not later than 20 days after delivery of the article.

Non-compliance with secs. 40, 42 or 43.

44(1)

Subject to subsections (2), (3) and (4), a time sale that does not comply with

section 40 or 42 or 43 takes effect as an immediate sale, and the property in the goods passes to the buyer on delivery, and the seller has no lien on the goods; but this does not affect the buyer's obligation to pay for the goods in accordance with the terms of the agreement.

Partial effect of seller's lien.

44(2)

Where a time sale includes more than one separate article, and the only non-compliance with

section 40, 42 or 43, as the case may be, is a failure to give a proper description of one or more of the articles, the reservation of the seller's lien is effective in regard to the articles that are properly described, and subsection (1) applies only to the articles that are not properly described.

Correction of description by consent.

44(3)

The buyer may, at any time, consent in writing to the correction of an error or omission in the description of any goods in a time sale agreement; and, on receipt of the consent, the seller may correct the original agreement accordingly; and, for the purposes of this section, the agreement shall be deemed to have been originally written as so corrected, except that no such correction prejudices any rights in or to the goods that may have been acquired before the date of the correction by any other person claiming through the buyer who does not consent in writing to the correction.

Correction of description by court.

44(4)

The court, on being satisfied that an error or omission in the description of any goods in a time sale agreement was due to inadvertence and that the buyer accepted the goods and was not misled by the error or omission, may order the description in the original agreement to be corrected; and for the purposes of this

section the agreement shall be deemed to have been originally written as so corrected; but every such order shall contain whatever provisions the circumstances of the case may require to protect any person who may have acquired, in good faith through the buyer, a right in or to the goods adverse to the seller's title which would be prejudiced by the correction.

Seller not prejudiced by variations.

44(5)

Where

(

a) a variation in a time sale agreement, other than in the description of the goods, is made by agreement in writing between all persons affected thereby; or

(

b) goods sold on a time sale that have been repossessed by the seller are returned to the buyer pursuant to any provision of this Act; or

(

c) the court extends the time for payment of the balance owing on a time sale pursuant to this Act; or

(

d) a buyer on a time sale who has defaulted obtains any other relief under this Act;

the seller's title to the goods remains in full force and effect as reserved by the time sale agreement; and his remedies in respect to future defaults by the buyer are not affected thereby.

Chattel mortgage for purchase price.

45(1)

Where a seller on a retail sale of goods takes back a chattel mortgage on those goods to secure payment of the whole or part of the price, the chattel mortgage shall state clearly and explicitly that it is given for that purpose.

Prohibition.

45(2)

No seller shall take a chattel mortgage that does not comply with subsection (1).

Waiting period after seizure.

46(1)

Subject to subsection (3), where a seller on a time sale has repossessed the goods by reason of the buyer's default in payment, he shall retain them for 20 days after the giving of the notice required by subsection (2), during which time the buyer may redeem them on payment of

(

a) any payments then in default;

(

b) any default charges that have become payable thereon; and

(

c) the actual expenses of taking and keeping possession not exceeding the amount allowed by The Distress Act.

Notice of seizure.

46(2)

Within 48 hours after repossessing any goods, the seller shall give written notice to the buyer stating

(

a) that the goods have been repossessed;

(

b) the date on which they were repossessed;

(

c) the amount required to redeem them, showing how this amount is made up;

(

d) the date on or before which the goods may be redeemed; and

(

e) the place where the goods are, or are to be kept.

Resale with consent of buyer.

46(3)

The seller may resell the goods during the 20 days with the written consent of the buyer, given not less than 24 hours after the goods were repossessed.

Notice if more than one buyer.

46(4)

Where goods are repossessed on a time sale agreement involving more than one buyer or a guarantor, the notice required to be given under subsection (2) shall be given to all buyers and guarantors.

Rights of buyer on seizure.

47(1)

Where a seller on a time sale has repossessed the goods

(

a) by reason of a breach by the buyer of the time sale agreement other than default in payment; or

(

b) pursuant to a provision in the agreement entitling him to repossess the goods if he has reasonable cause to believe that his security thereon is in jeopardy;

the buyer may, subject to this section,

(

c) redeem the goods by remedying the breach or taking the requisite action to ensure the safety of the seller's security thereon; or

(

d) apply to the court for relief under sections 36 and 37.

Notice of seizure.

47(2)

Within 48 hours after repossessing the goods, the seller shall give to the buyer a written notice that

(

a) contains the statements and information required under clauses 38(a), (

b) and (c); and

(

b) specifies the action that the seller requires the buyer to take to remedy the breach, if it is capable of remedy, or to ensure the safety of the seller's security on the goods, as the case may be.

Right to redeem.

47(3)

Within 20 days after the giving of the notice required by subsection (2), the buyer may

(

a) redeem the goods by taking the action required by the seller in his notice and paying the seller's actual expenses of taking and keeping possession, not exceeding the amount allowed by The Distress Act; or

(

b) apply to the court for relief.

Court may relieve.

47(4)

Where the buyer applies to the court for relief pursuant to subsection (3), the court may, if it sees fit, relieve the buyer against the consequences of the repossession by ordering the seller to return the goods to the buyer, either unconditionally or subject to the fulfilment by the buyer of such conditions as the court may see fit to impose.

Costs.

47(5)

Where the court has ordered the seller to return the goods to the buyer unconditionally and the court is of the opinion that the buyer's breach of the agreement did not prejudice the seller or that the seller did not have reasonable cause to believe that his security on the goods was in jeopardy, as the case may be, the court may order the seller to pay the buyer's costs of the application.

Reckoning time for notice.

In reckoning the periods of 48 hours prescribed by sections 46 and 47, Saturdays, Sundays and holidays shall be excluded.

Leave required for seizure.

49(1)

Where a seller on a time sale would be, but for this section, entitled to repossess any goods, and the balance owing by the buyer on those goods at that time is less than 25% of the cash price of the goods at the time of the sale thereof, the seller may not repossess the goods without either the leave of the court or the written consent of the buyer given at the time of repossession.

Notice of application for leave.

49(2)

The seller shall give notice to the buyer of his application for leave required under subsection (1), unless

(

a) the buyer cannot be found or is evading service; or

(

b) there is reasonable cause to believe that the buyer might hide the goods or otherwise attempt to evade repossession thereof if he had notice of the application; or

(

c) the court for any other reason sees fit to dispense with notice;

in which event the court may give leave to repossess on the ex parte application of the seller.

Setting aside ex parte order.

49(3)

Where leave to repossess is given ex parte, the order giving the leave may be set aside upon the application of the buyer, initiated not later than

(a) 20 days after the buyer has notice of the making of the order; or

(b) 90 days after the goods are repossessed; whichever is the earlier; and the seller shall at, or as soon as possible after, the time of repossession, give to the buyer a copy of the order and a notice, in a form approved by the judge who made the order, of the buyer's rights under this subsection.

Considerations by court.

49(4)

In deciding whether to grant leave to repossess, or to set aside an order made ex parte, the court shall consider all relevant circumstances, including

(

a) the present value of the goods;

(

b) the amount already paid by the buyer;

(

c) the balance owing by the buyer;

(

d) the reasons for the buyer's default; and

(

e) the present and likely future financial circumstances of the buyer and of the seller;

and the court may permit the buyer to keep the goods, or, if they have been repossessed pursuant to an order made ex parte, to redeem them, on such terms as it sees fit and may extend the time for payment by the buyer of the balance owing; but if it grants an extension, the court shall require the buyer to pay such additional amount as may be necessary to compensate the seller for the extension.

Secs. 46 and 47 not to apply.

49(5)

Where any goods are repossessed pursuant to this section, sections 46 and 47 do not apply to the repossession.

Delivery of notice, etc.

50(1)

A notice required by

section 46 or 47, and the copy of the order and notice required by

section 49, may be given to the buyer

(

a) by delivering it personally to the buyer or to his spouse; or

(

b) if the goods are in a dwelling at the time of repossession, by delivering it to any adult person who is present at the time of repossession and appears to reside in the dwelling; or

(

c) by mailing it, by registered mail, addressed to the buyer at his last known address, in which case it shall be deemed to be given on the next business day after the date of mailing.

Where notice late.

50(2)

Where a seller fails to give the notice required by

section 46 or 47 within the time required, the repossession of the goods is not invalidated; but the time allowed to the buyer to redeem the goods or to apply to the court is extended until the expiration of 20 days from the day on which the requisite notice is given.

Extension of time for redemption.

50(3)

The court may extend the time allowed by sections 46 and 47 to a buyer to redeem the goods or apply for relief, and the time allowed by

section 49 to a buyer to apply to set aside an ex parte order; but the court shall not grant the extension unless it is satisfied that the seller will not be prejudiced thereby.

Protection removed.

51(1)

Where a buyer has persistently defaulted on his obligations under the time sale agreement or master agreement in question, or has deliberately evaded repossession of the goods, the court, on the application of the seller, may deprive the buyer in whole or part of the protection of sections 33, 46, 47 and 49.

Order made when buyer absent.

51(2)

Where the buyer does not appear on the hearing of an application under subsection (1), an order made on the application is not effective until a copy of the order has been served on the buyer in a manner approved by the court.

Substitutional service.

51(3)

Nothing in subsection (2) diminishes the court's power to order substitutional service.

Right of buyer to move or charge goods.

52(1)

Subject to subsection (2), every provision in a time sale agreement or in a master agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the buyer from

(

a) removing the goods to any place within Manitoba; or

(

b) charging his interest in the goods;

is void.

Restriction on moving and charging goods.

52(2)

A time sale agreement or a master agreement may provide that the buyer may not

(

a) remove the goods from any particular place or area; or

(

b) charge his interest in the goods;

unless he gives to the seller by registered mail, addressed to the seller at the address specified in the agreement, at least 10 days before so doing, written notice of his intention to do so, specifying the place to which he intends to remove the goods, or the person in whose favour he intends to charge them, as the case may be.

Order to protect seller's interest.

52(3)

On receipt of any notice given pursuant to subsection (2), the seller, if he believes he will be prejudiced by the intended action therein specified, may apply to the court, and the court may make whatever order may seem just to protect the interests of the seller and of the buyer.

No right to sue after seizure.

53(1)

Subject to subsection (2), where a seller under a time sale repossesses the goods comprised in the time sale, or any portion thereof, his right to recover any balance, whether of the price or of the cost of borrowing or both, owing on the goods so comprised is thereafter limited to his lien on the goods and his right to repossession and sale thereof; and no action is thereafter maintainable by the seller to recover the balance or any part thereof.

Restoration of seller's rights.

53(2)

Where the seller repossesses the goods and the buyer subsequently redeems them or they are returned to him pursuant to an order of the court, or as the result of the setting aside of an ex parte order under

section 49, the seller is, for the purposes of subsection (1), restored to his former position and, in the event of any subsequent default by the buyer, may proceed as if the goods had not been previously repossessed.

Judgment extinguishes lien on goods.

53(3)

Subject to subsection (4), where a seller on a time sale obtains judgment in any action for the whole or any part of the balance, whether of the price or of the cost of borrowing or both, owing on any goods comprised in the time sale, his lien on the goods comprised in that sale is extinguished on the date of the judgment; and the property in the goods thereupon passes to the buyer.

Exemption from subsec. (3).

53(4)

Where an action brought by the seller was for the full amount then owing by virtue of an acceleration provision, and the court relieves the buyer or hirer from the acceleration, it may, as one of the conditions of granting the relief, exempt the seller either wholly or partially from the operation of subsection (3).

Execution of collateral under judgment.

53(5)

Where a seller has obtained a judgment for the whole of the balance, and the goods comprised in the sale, or any of them, are seized under an execution issued pursuant to that judgment, the seller's right to recover under the judgment, in so far as it is based on that balance, is limited to the amount realized from the sale of the goods so seized, and the judgment, to the extent that it is based on that balance and taxed costs, shall be deemed to be fully paid and satisfied; but, where the amount realized from the sale of the goods exceeds the amount of the judgment and the costs of execution, the excess shall be paid to the buyer, or to subsequent execution creditors, as the case may be.

Judgment for part of balance.

53(6)

Where a seller has obtained judgment for only a part of the balance, and the goods comprised in the sale, or any of them, are seized under an execution issued pursuant to that judgment, the seizure operates not only to satisfy the judgment as provided by subsection (5), but also to extinguish the seller's right to maintain any action for the remainder of the balance; but, in that case, if the amount realized from the sale of the goods exceeds the amount of the judgment and the costs of execution, the excess shall be paid into court, and the court may order it to be paid out in such manner as may be just.

Exemption from subsecs. (1), (5) and (6).

53(7)

Where only some of the goods comprised in a time sale agreement are repossessed by the seller or are seized under the execution, and the reason why the others are not repossessed or seized is that the seller or the sheriff or bailiff, as the case may be, is unable to find them, the court may exempt the seller either wholly or partially from the operation of subsection (1) or of subsections (5) and (6), as the case may be.

Where collateral damaged.

53(8)

Where any of the goods have been destroyed or damaged by the deliberate act or wilful neglect of the buyer, the seller may, notwithstanding subsections (1), (5) and (6), recover from the buyer, the lesser of

(

a) the balance owing on the agreement or judgment, as the case may be; or

(

b) the value of the goods destroyed, or of the damage done.

Removal or replacement of collateral.

Where a buyer has removed from any

article sold on a time sale an accessory or component that was included in the sale, and has not replaced it by another of a like kind and value, or has replaced it by one that is itself subject to a lien or charge held by another person, and the

article has been repossessed by the seller or seized under an execution issued at the suit of the seller, the seller may, notwithstanding

section 53, maintain an action to recover the least of

(

a) the value of the accessory or component removed, allowing for depreciation; or

(

b) the amount owing on the lien or charge on the replacement held by another person; or

(

c) the amount by which the sum realized by the sale of the goods falls short of the balance owing thereon, or of the amount of the judgment and costs of execution, as the case may be.

Resale of seized collateral.

55(1)

Where a seller has lawfully repossessed goods sold on a time sale, and the buyer has not redeemed them within the time allowed for that purpose, the seller may resell them.

Price for resale of collateral.

55(2)

A seller who resells goods must act in good faith and when the goods are sold he shall forthwith give a complete accounting of the sale to the buyer including such detail as may be required by regulation and at the same time pay any excess due to the buyer under subsection (3).

Payment of excess to buyer.

55(3)

Where the amount realized on the resale of the goods exceeds the balance owing on the goods and the expenses of taking and keeping possession and of resale, the excess shall be paid by the seller to the buyer.

Cost of repair.

55(4)

Where the seller has the goods repaired before reselling them, the cost thereof is part of the expenses of sale.

Charge of overhead.

55(5)

Where the seller resells the goods by retail in the ordinary course of his business, he may charge, as an allowance for the overhead expenses of resale, 20% of the proceeds of sale.

Retention in lieu of resale.

55(6)

Where the seller is unable to resell the goods at a price sufficient to satisfy the balance owing on them and the expenses of taking and keeping possession and of resale, the seller may keep the goods and use them as he sees fit.

Disposal of goods.

55(7)

Where goods are repossessed by the assignee of the seller and the goods are sold or otherwise disposed of to the seller, the seller shall fulfil the obligations required under this

section but where the goods are sold or otherwise disposed of by the assignee, the assignee shall fulfil the obligations required of the seller under this section.

Additional collateral on time sale prohibited.

56(1)

No part of the price of any goods comprised in a time sale that is not made on variable credit, or of the cost of borrowing thereof, may be secured on any goods not comprised in that time sale; and any provision or arrangement that purports to do so is void.

Rights in excess collateral under variable credit

56(2)

Every provision in a master agreement relating to variable credit under which the seller may

(

a) acquire title to, possession of, or any rights in, any goods of the buyer, other than goods bought or hired by him under that master agreement; or

(

b) retain any title to, a right to repossess, or any other rights in, any

article bought or hired by the buyer under that master agreement after the

article has been paid for in full;

is void.

Demand payments.

56(3)

Except with the prior consent of the director, no time sale agreement shall provide that the balance owing, or any part thereof, is payable on demand; and any time sale agreement that contravenes this subsection takes effect as an immediate sale, and the property in the goods passes to the buyer on delivery, and the seller has no lien on the goods; but this does not affect the buyer's obligation to pay for the goods in accordance with the terms of the agreement.

PART V

CHATTEL MORTGAGES

Leave to repossess.

57(1)

Where a mortgagee of goods would be, but for this section, entitled to seize the mortgaged goods and the balance owing by the mortgagor on the mortgage is less than 25% of the total monetary liability of the mortgagor originally secured thereby, the mortgagee may not repossess the goods without the leave of the court.

Notice of application for leave.

57(2)

A mortgagee of goods shall give notice to the mortgagor of his application for leave under subsection (1) unless

(

a) the mortgagor cannot be found, or is evading service; or

(

b) there is reasonable cause to believe that the mortgagor might hide the goods or otherwise attempt to evade seizure thereof if he had notice of the application; or

(

c) the court for any other reason sees fit to dispense with the notice;

in which event the court may give leave to seize on the ex parte application of the mortgagee.

Setting aside order for leave to seize.

57(3)

Where leave to seize is given ex parte under subsection (2), the order giving the leave may be set aside upon the application of the mortgagor initiated not later than

(a) 20 days after the mortgagor has notice of the making of the order ; or

(b) 90 days after the goods are seized;

whichever is the earlier; and the mortgagee shall at, or as soon as possible after, the time of seizure give to the mortgagor a copy of the order and a notice, in a form approved by the judge who made the order, of the mortgagor's rights under this subsection.

Considerations of court.

57(4)

In deciding whether to grant leave to seize, or to set aside an order made ex parte, the court shall consider all relevant circumstances, including

(

a) the present value of the goods;

(

b) the amount already paid by the mortgagor;

(

c) the balance owing by the mortgagor;

(

d) the reasons for the mortgagor's default; and

(

e) the present and likely future financial circumstances of the mortgagor and of the mortgagee.

Conditions of leave to seize.

57(5)

Where the court grants leave to seize, it may order the mortgagee to offer the goods for sale in such manner and on such terms as it sees fit.

Extension of time to pay.

57(6)

Where the court refuses leave to seize, or sets aside an order giving leave made ex parte, the court may extend the time for payment by the mortgagor of the balance owing; but in granting the extension, the court shall require the mortgagor to pay such additional amount as may be necessary to compensate the mortgagee for the extension.

Delivery of notice, etc.

57(7)

The copy of the order and notice required by subsection (3) may be given to the mortgagor in the same manner as is provided in

section 50 for giving a notice to a buyer.

Extension of time to set aside order.

57(8)

The court may extend the time allowed by subsection (3) to a mortgagor to apply to set aside an ex parte order; but an extension shall not be granted unless the court is satisfied that the mortgagee will not be prejudiced thereby.

Additional rights of mortgagor.

57(9)

The rights of a mortgagor under this

section are in addition to any he has under sections 36, 37 and 38.

Conflict with

sec. 49.

57(10)

Where a chattel mortgage is subject to

section 49, that

section prevails over any conflicting provision of this section.

Mortgagee not prejudiced by variations.

57(11)

Where

(

a) a variation in a chattel mortgage, other than in the description of the goods, is made by agreement in writing between all persons affected thereby and is registered if and as required by The Personal Property Security Act; or

(

b) goods, subject to a chattel mortgage, which have been seized by the mortgagee are returned to the mortgagor pursuant to any provision of this Act; or

(

c) the court extends the time for payment of the balance owing on a chattel mortgage pursuant to this Act; or

(

d) a mortgagor of chattels who has defaulted obtains any other relief under this Act;

the mortgagee's security on the goods remains in full force and effect as created by the chattel mortgage, and his remedies in respect of future defaults by the mortgagor are not affected thereby.

Repossession prohibited in certain cases.

57(12)

Subject to subsections (13) and (14) where a chattel mortgage does not contain all of the information required to be included in the mortgage under this Act, the mortgagee may not repossess the goods without leave of the court in accordance with and subject to the provisions of this

section and in such an event the mortgagee shall not recover the costs of the action.

Investigation of inadvertent mistake.

57(13)

Where a chattel mortgagee claims that any omission or misstatement was due to inadvertence, the court shall not adjudicate thereon until the director has been advised thereof and has made any investigation he may consider appropriate.

Appearance by director.

57(14)

Where subsection (13) applies, the director may attend by counsel at the hearing and adduce such evidence as he desires; and if in the result the court is not satisfied that the omission or misstatement was due to inadvertence, the court shall not grant leave to repossess the goods and in addition may order the mortgagee to pay the director's costs.

Notice by mortgagee in case of repossession.

57(15)

Where a mortgagee has repossessed goods other than by leave of the court under subsection (1) or (12), the mortgagee shall give to the mortgagor a notice in the same manner as provided by

section 50 for giving notice to a buyer and the mortgagee shall have the same responsibilities as those required of a seller under sections 46, 47 and 48, and the mortgagor has all the rights given under those subsections.

Sale of repossessed goods.

57(16)

Where a mortgagee has repossessed goods under a chattel mortgage, he shall have the same responsibilities as those required of a seller under

section 55 of the Act and the accounting of the sale required to be given under subsection 55(2) shall include a statement of the balance remaining on the debt owing by the mortgagee after the sale.

Dispute as to realized value.

57(17)

Where a mortgagee demands payment of a balance remaining on the mortgagor's debt after the sale of repossessed goods and the parties are unable to agree that the amount realized from the sale of goods was reasonable, the mortgagee shall not make further demand for payment on the mortgagor until the matter shall have been submitted to a court of competent jurisdiction for adjudication.

Exception.

57(18)

This Part does not apply where the mortgagor is a corporation.

PART VI

STATUTORY WARRANTIES ON RETAIL SALES

Warranties on sale.

58(1)

Notwithstanding any agreement to the contrary, the following conditions or warranties on the part of the seller are implied in every retail sale of goods and in every retail hire-purchase of goods:

(

a) In the case of an immediate sale, a condition that he has the right to sell the goods, or, in the case of a time sale, a condition that he has the right to agree to sell or to let on hire the goods, and will have the right to sell them at the time when the property is to pass to the buyer.

(

b) In the case of an immediate sale, a warranty that the buyer shall have and enjoy quiet possession of the goods, or, in the case of a time sale, a warranty that the buyer, so long as he fulfils his obligations under the time sale agreement, shall have and enjoy quiet possession of the goods.

(

c) A warranty that the goods are free from any charge or encumbrance in favour of any third party except only for any that the buyer has specifically agreed in writing to accept.

(

d) A condition that the goods are new and unused unless otherwise described; but in the case of a motor vehicle a description showing that it is more than one year old is sufficient to describe it as used.

(

e) A condition that the goods are of merchantable quality, except for such defects as are described.

(

f) A condition that the goods correspond with the description under which they are sold.

(

g) Where the goods are sold by sample, a condition that the bulk shall correspond with the sample and that the goods are free from any defect that renders them unmerchantable, and that would not be apparent on reasonable examination of the sample, and a condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.

(

h) Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, whether he is the manufacturer or not, a condition that the goods are reasonably fit for the purpose; but in the case of a contract for the sale of a specified

article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.

Statement of conditions.

58(2)

For the purposes of clause (l)(e), it is not necessary to specify every defect separately, if the general condition or quality of the goods is stated with reasonable accuracy.

Statements relating to goods on time sales.

58(3)

Any statement

(

a) that the goods are not new and unused; or

(

b) of the age of a motor vehicle; or

(

c) of defects in the goods; or

(

d) of the general condition or quality of the goods;

shall be a part of the description of the goods for the purposes of sections 4, 5, 40 and 42, and of subsection 14(3); and, where one or more of them applies, none of those statements has any effect unless it is included in the required description of the goods in the agreement or writing; but the statement shall be deemed to be included in the agreement or writing if it is contained in a document that

(

e) is clearly identified as an appendix or

schedule to the agreement or writing;

(

f) is signed by the buyer and the seller;

(

g) is attached to and forms a part of the agreement; and

(

h) is delivered to the buyer with a copy of the agreement before delivery of the goods.

Statements relating to goods in cash sales.

58(4)

Where

section 4, 5, 40 or 42 or subsection 14(3) does not apply, a statement of a kind referred to in subsection (3) has no effect unless it is made in writing and

(

a) is contained in a notice that is readily visible to the buyer at or before the time of the sale and is so displayed as to make it clear that it refers to the goods; or

(

b) is contained in a document that is delivered to the buyer before he accepts the goods.

Merchantable quality.

58(5)

Where the goods are described as used in the manner required by this section, there shall be taken into account, in deciding whether they are of merchantable quality,

(

a) the fact that they are used; and

(

b) the age of the goods as specified in their description, or, if no age is specified, the age of the goods as understood by the buyer at the time of the sale.

Condition as to services.

58(6)

Unless otherwise expressly agreed in writing signed by the buyer, there shall be implied in every retail sale of services a condition, on the part of the seller, that the services sold shall be performed in a skillful and workmanlike manner.

Effect on other conditions.

58(7)

Nothing in this

section excludes or affects any other condition or warranty relating to the goods or services, whether expressed or implied, as between the buyer and the seller or any person claiming through the seller who would, apart from this Act, be held to be bound thereby.

Express warranty.

58(8)

Every oral or written statement made by a seller, or by a person on behalf of a seller regarding the quality, condition, quantity, performance or efficacy of goods or services that is

(

a) contained in an advertisement; or

(

b) made to a buyer;

shall be deemed to be an express warranty respecting those goods or services.

Seller to provide record.

58(9)

Where a seller is required under this

section to correct any defect or failure in any goods sold or services supplied by him, he shall, on each occasion give at the time of the correction, to the buyer a written record of all items and services that are used to correct the defect or failure at the time of the correction.

Mediation of warranty disputes.

58(10)

In any transaction to which this Act refers where there is a dispute between a buyer and seller or a lender and borrower as to any condition or warranty, either or both parties may refer the dispute to the director who shall endeavour by mediation to settle the dispute.

PART VII

DIRECT SELLERS

Application of Part.

59(1)

Subject to

section 60 and to regulations made under clause 97(d), this Part applies to all retail sales or retail hire purchases of goods or services or both entered into by the buyer elsewhere than at the vendors usual place of business and which result from any offer, solicitation, proposal, or approach made, by or on behalf of the vendor

(

a) without any prior request by the buyer; or

(

b) in response to a request made by the buyer if the request was itself solicited by or on behalf of the vendor.

Certain types of sales subject to Part.

59(2)

Without restricting the generality of subsection (1), this Part applies to all sales which are made in or from an agricultural fair, artistic or similar type of exhibition, a trade fair, motor vehicle, shopping mall, parking lot, dwelling, display room, office, hotel, motel or other temporary or short term establishment.

Place of conclusion of sale.

59(3)

Although a retail sale is concluded in a vendor's usual place of business, if the buyer receives any personal communication from the vendor or a direct seller representing the vendor elsewhere than at the vendor's usual place of business prior to conclusion of the sale, the sale shall nevertheless be subject to this Part.

Address for service.

59(4)

For the purposes of this Part

(

a) a listing of the name of a vendor in a telephone, professional or trade directory shall not be deemed to be a solicitation; and

(

b) the vendor's usual place of business shall be the address for service required to be given by the vendor under subsection 78(8) and any other address from which the vendor usually conducts his business if the director is satisfied that the use of the other addresses is not for the purpose of avoiding the requirements of this Part or

Part X of this Act.

Where Part not to apply.

60(1)

This Part does not apply to

(

a) sales or hire-purchases of vehicles or trailers within the meaning of The Highway Traffic Act or of farm machinery and equipment to which The Farm Machinery and Equipment Act applies; or

(

b) sales of water, propane gas, or fuel petroleum products; or

(

c) sales of lumber or coal where the vendor has a place of business in the municipality in which the sale takes place; or

(

d) sales of feed grain, feed supplement, fertilizer, or weed spray where the vendor has a place of business in the municipality in which the sale takes place; or

(

e) sales of farm produce in Manitoba by a farmer from his own farm; or

(

f) sales of services relating to

(

i) the raising and care of livestock; or

(ii) the planting, raising or harvesting of crops; or

(iii) any service of a domestic nature, including gardening; or

(

g) any sale in which the price is expressly solicited as a contribution to a charitable, philanthropic, or similar cause and not as being a fair price for the goods or services offered; or

(

h) sales of goods or services made to a buyer who is engaged in the retail sale of goods or services or both, if the goods or services or both are intended for exclusive use by the buyer in his regular place of business but not for resale unless the buyer is a farmer and The Farm Machinery and Equipment Act does not apply to the sale; or

(

i) sales in which the only goods supplied consist of food or food products in a perishable state at the time of delivery;

(

j) sales of daily or weekly newspapers by persons who actually make deliveries of the newspapers at periods coincident with the frequency of issue; or

(

k) an exemption granted pursuant to a regulation made under clause 97(d).

Certain selling practices prohibited.

60(2)

No vendor or direct seller shall give, offer to give or promise to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer of goods or services or both, or to any person on his behalf, on the condition that the buyer or person will provide the vendor with service or assistance of any kind in furthering any attempt by the vendor to make a sale to another buyer.

Prohibition against premiums, etc.

60(3)

No vendor or direct seller shall give or offer to give, directly or indirectly, any gift, premium, prize or other benefit of any kind whatsoever to a buyer or prospective buyer of goods or services, or both, unless

(

a) its retail sale value is accurately disclosed to the buyer or prospective buyer and is not included in the price of the goods or services;

(

b) it is not contingent upon the prospective buyer making a purchase; and

(

c) it does not constitute in any way, any part of the goods or services, or both, that are sold.

Cancellation within four days.

61(1)

All retail sales or retail hire-purchases to which this Part applies and which are not in writing, may be cancelled by notice in writing within four days after the buyer has entered into the contract, by sending a notice by registered mail or by personal delivery thereof to the vendor at his usual place of business; and the notice of cancellation is good and effective, if, however expressed, it indicates the intention of the buyer to withdraw from the transaction to which it relates.

Vendor to notify buyer of right to cancellation. 61(2) Where there is no writing evidencing a sale or hire-purchase to which this Part applies, the vendor shall in writing at the time of the sale or hire-purchase notify the buyer that the buyer has the right to cancel the sale or hire-purchase by giving the vendor a written notice of cancellation in accordance with this

section and

section 62.

Statement required in agreement.

62(1)

Every retail sale or retail hire-purchase to which this Part applies shall be accompanied by a written notice which shall have printed or typed at the top of the first page in type, not less than 10 point in size, the following words or such other words as may in the view of the director provide the same information to the buyer:

"You can cancel this agreement by notice in writing within four days after you signed it. If you do not cancel this agreement within the four days you may not be able to cancel it afterwards. You can send your notice by registered or certified mail to (name of vendor and address of vendor's usual place of business shall be inserted here) or you may deliver it there yourself. You must mail it or deliver it before the end of the four days. If you cancel it, any moneys you paid, and any goods you traded in, will be returned to you."

Terms of agreement in addition to other rights.

62(2)

The words required by subsection (1) to be inserted in an agreement shall be a term of every agreement in which they are contained; but the words do not exclude any right of cancellation, repudiation, or rescission which a buyer has apart from this Part.

Cancellation where statement omitted.

62(3)

Subject to subsection (5), where an agreement made in writing to which this Part applies or any receipt for any payment on account of the purchase price under an agreement to which this part applies does not contain the statement as required under subsection (1), the buyer may cancel the agreement by written notice to the vendor at any time within 30 days after the first goods are delivered, or services performed, thereunder.

Rectifying omission of statement.

62(4)

Where an agreement made in writing to which this Part applies inadvertently does not contain the words required under this section, the vendor may, at any time thereafter deliver, to the buyer personally, or to each of the buyers personally if there are more than one, a notice which clearly and explicitly

(

a) refers to the agreement concerned;

(

b) informs the buyer that he may, within four days thereafter, cancel the agreement by notice in writing to the vendor delivered or sent by registered mail to the address stated in the notice; and

(

c) informs the buyer that, upon cancellation, any money he paid, or goods he traded in, will be refunded.

Notice as part of agreement.

62(5)

Where a vendor delivers, in accordance with subsection (4), a notice containing the information required thereby, the notice thereupon becomes a term of the agreement and subsection (3) ceases to apply.

Refusal of notice.

62(6)

Where a buyer refuses to accept delivery of a notice under subsection (4), the refusal is in itself an effective cancellation of the agreement.

Delivery of agreement.

62(7)

A duplicate copy of every agreement made in writing to which this Part applies shall be delivered to the buyer at the time of the signing thereof.

Reckoning of time.

62(8)

In reckoning the time of four days allowed for the giving of any notice under this Part, Sundays and holidays shall be excluded.

Cancellation for other reasons.

63(1)

Notwithstanding sections 61 and 62, a retail sale or retail hire-purchase to which this Part applies may be cancelled where

(

a) the vendor or direct seller was not licensed as provided by this Act at the time that the buyer entered into the contract; or

(

b) the goods or services to be supplied under the contract are not supplied to the buyer within 120 days after the date on which the buyer entered into the contract; or

(

c) the vendor or direct seller has, in respect of the contract, failed to comply with any of the terms, conditions, or restrictions to which his licence is subject;

by written notice served on the vendor by the buyer within six months after the day on which the purchase was made or the contract was signed.

Relief against cancellation.

63(2)

Where it is shown to the court that it is inequitable that clause (l)(

b) should apply, the court may make such order as it deems just and expedient.

Effect of cancellation.

64(1)

Upon the cancellation of any agreement, whether oral or in writing, under this Part

(

a) subject to subsection 65(2), every liability or obligation of the buyer under the agreement is extinguished;

(

b) the vendor shall repay to the buyer immediately upon demand by the buyer every amount that has already been paid by the buyer, or by any one on his behalf, for or on account of the purchase price, rent, or cost of borrowing or otherwise pursuant to the agreement, whether payment has been made to the vendor or to any other person; and

(

c) at the same time the vendor shall return to the buyer any goods taken as a trade-in, in as good condition as they were in when taken, or, if he is unable to do that, shall pay to the buyer the greater of

(

i) the market value of the goods when taken; or

(ii) the price or value set on the goods in the agreement.

Negotiation of new agreement.

64(2)

Upon receiving verbal or written notice of cancellation of an agreement, the vendor shall fulfil his obligations under subsection (1) before attempting to renegotiate the agreement or to negotiate another agreement with the buyer; and any agreement for the sale of the same or substitute goods or services subsequently made between the vendor and the buyer is a new agreement that is subject to all of the provisions of this Part notwithstanding where the sale is completed.

Rights of cancellation.

65(1)

The right of a buyer to cancel an agreement under this

Part is not affected by

(

a) the delivery of the goods to him; or

(

b) the use of the goods by him; or

(

c) the partial consumption of the goods by him; or

(

d) the accidental destruction of or damage to the goods; or

(

e) the partial performance by the vendor of any services;

but the right of a buyer or hirer to cancel an agreement under this

Part is extinguished by

(

f) deliberate destruction of, or damage to, the goods by the buyer or any member of his household; or

(

g) the actual consumption by the buyer of all goods comprised in the agreement and the complete performance by the vendor of all services comprised therein.

Where goods not intact.

65(2)

Where goods have been used, or partially consumed or accidentally destroyed or damaged by a buyer, or some services have been performed by the vendor,

(

a) the vendor may recover from the buyer reasonable compensation therefor;

(

b) the vendor's right to recover compensation does not arise until the vendor has repaid or returned to the buyer all moneys and goods to which he is entitled; and

(

c) the vendor may not maintain any action for compensation until the right thereto has arisen;

and a vendor shall not, under this subsection, recover payment from the buyer more quickly than he would have been entitled to under the agreement, and any judgment in favour of the vendor under this subsection may be made payable by instalments.

Buyer's lien on cancellation.

65(3)

The buyer has a lien on all goods delivered to him for all amounts payable to him by the vendor; but he shall return those goods to the vendor as soon as that lien has been satisfied.

PART VIII

ASSIGNEES AND GUARANTORS

Assignment of rights of borrower.

66(1)

The rights conferred by this Act on a borrower pass to, and may be exercised by, any person claiming through or under him without any express assignment thereof; but no such person has any right to receive from a credit grantor any notice required by this Act unless the credit grantor has been made aware of the transfer to him of the borrower's rights before the time when that notice has to be given.

Reservation of rights.

66(2)

Notwithstanding subsection (1), a buyer, when selling or transferring to another person any goods that he has acquired on a credit sale or hire-purchase, may reserve, either expressly or by necessary implication, any rights he has against the seller under

section 58.

Assignees included in "borrower" and "buyer".

66(3)

Where the context