BILL No. 12 of 1927

An Act respecting the Duties of Agents in the Sale of Products of the Soil (Assented to , 1927.) HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. This Act may be cited as "The Sales on Consignment Act, J 927." Z.

In this Act, unless the context otherwise requires, the expression- (a) "Consigned" shall mean shipped, consigned or en­ trusted to a mercantile agent for sale, re-consign­ ment or other disposition; (b) "Consignment" shall mean a separate lot or ship­ ment of products consigned; (c) "Mercantile Agent" shall include a broker or agent to negotiate and make contracts for the sale of pro­ ducts of which he is not entrusted with the posses­ sion or control; a factor or agent to sell or dispose of products of which he is entrusted with the posses­ sion 01' control; and shall include a jobber or person whose normal business is to buy or sell products in wholesale quantities 'when handling or disposing of products on commission, and an agent of a broker, factor or jobber. (d) "Minister" shall mean the Minister of Agriculture; (e) "Principal" shall mean a person whether within or without the Province, who ships, consigns or en­ trusts products to a mercantile agent within the Province, for sale, re-consignment or other disposi­ tion; (f) "Producer" shall include rancher, farmer, grower and market gardener; (g) "Products'~ shall mean- (

i) fruits and vegetables of all kinds and, without limiting the generality of the foregoing, include berries, grapes, tomatoes, melons and cucum­ bers; (ii) any agricultural product or farm produce except milk, cream and grain, and except live stock when sold in a public stock yard in Alberta. 3.-

(1) Every person who acts as, or holds himself out as a mercantile agent shall be deemed prima facie to be a mercantile agent and to come within the provisions of this Act.

(2) Where any person purchases any products from any producer and undertakes to pay the whole or any part of the purchase price out of the resale price, he shall be deemed to be a mercantile agent for the purpose of accounting and making payment to the producer; and for that purpose the producer shall be deemed to be a principal, and the products purchased shall be deemed to be a consignment.

(3) The rendering of an account of sales of products or other document indicating that the person rendering the same has acted in respect of products as an agent for the person to whom the same is rendered shall in all proceedings be pri1na facie evidence against the first mentioned person that he so acted as a mercantile agent. 4.

This Act shall apply to every transaction between a principal and a mercantile agent, notwithstanding any agreement to the contrary; and any provision in a contract purporting to deprive a principal of the benefit of its pro­ visions, or to relieve a mercantile agent from the duties, obligations or liabilities imposed by it, shall be void. 5. Every mercantile agent, whether acting for a principal within or without the Province, shall, in addition to all other legal duties, perform the duties prescribed in this Act. 6.-

(1) Every mercantile agent shall- (

a) give to each consignment an individual number, and cause the same to be placed upon all separate pack­ ages in the consignment and all documents and en­ tries relating thereto in such a manner as to identify the same; (

b) keep such books of account as will fully and truly exhibit and explain his transactions and financial position, including a book or books containing en­ tries from day to day in sufficient detail of all pro­ ducts received, and of all moneys received and dis­ bursed and statements of annual and other stock­ takings; (

c) make and keep such original or duplicate original receipts, invoices, vouchers, credit notes, account sales and other records as will truly explain and account for the disposition of each consignment; (

d) keep a consignment record book, in which shall be entered the name and address of the principal, the nature, description and quantity of each consign­ ment and particulars of each sale or other disposi­ tion.

(2) The books and records referred to in subsection (1) of this

section shall be kept in legible characters and figures.

(3) For a period of six years after final report to his principal in respect of any consignment every mercantile agent shall keep at his usual place of business or at some other convenient place in the same municipality the books and records referred to in subsection (1) of this section.

(4) The books and records required by this

section to be kept shall, as against the mercantile agent, be prima facie evidence of the facts and transactions therein recorded, set out or indicated. 7.-

(1) If any consignment arrives in a damaged or de­ teriorated condition it shall be the duty of the mercantile agent forthwith- (

a) to notify the principal of the fact, giving particu­ lars of the quantities damaged or in a deteriorated condition, the apparent reduction in market value, and the apparent cause of the damage or deteriora­ tion; and (

b) in the case of car-lot consignments, to notify the nearest inspector of the Dominion Department of Agriculture, giving the information required by paragraph (a).

(2) In the case of less than car-lot consignments this sec­ tion shall be deemed to have been complied with if the in­ formation required by paragraph (

n) of subsection (1) is given by an account of sales rendered within two days after the consignment is received.

(3) In evenT case in which the provisions of this

section have not been complied with, it shall as against the mercan­ tile agent be presumed lJ1'Z1II(( fncie that on the arrival of the consigulllcmt it was 110t in a damaged or deteriorated condition. 8.

If on the last day of any mouth a portion of any con­ signment, received prior to the first day of that month, remains unsold or undisposed of, the mercantile agent shall within five days thereafter render to his principal an account' in writing showing the then disposition of the products in the consignment, the amounts received therefor, and the quantities and condition of the different products on hand and undisposed of. Such account shall be rendered monthly while any products remain on hand or undisposed of. 9.-

(1) Every mercantile agent shall within ten days after the sale or other final disposition of any consignment separately, accurately and fully· account in writing to his principal for and with respect to the consignment. Such account shall include sumcient particulars of all sales made and of all losses, rebates, allowances, expenses, disburse­ ments and deductions, the rates and amounts of commission charged and retained, and the amounts due and remitted to the principal.

(2) No fee, commission, remuneration 01' profit and no loss, rebate, allowance, expense, disbursement or other de­ duction not disclosed in writing to the principal shall be allowed to or be retaillable by any mercantile agent; and the

4 amount of any fee, commission, remuneration, profit, loss, rebate, allowance, expense, disbursement, or other deduction not so disclosed may be recovered by the principal as moneys had and received by the agent to the use of the principal. 1.0. Every mercantile agent shall, within five days after a written request by his principal, furnish in writing such information and particulars not already furnished in writing to the principal regarding the consignment and the condi­ tion and disposition thereof, and the amounts received there­ for as the principal may require. 11..-

(1) All moneys realized from the sale or other dis­ position of the products of his principal shall in the hands of every mercantile agent be trust funds, and the principal shall be deemed to be a cestui que trust with the right to demand an accounting and payment, and to follow the moneys.

(2) Every mercantile agent shall keep the moneys real­ ized from the sale or other disposition of the products of his principal apart from his own moneys, and shall as soon as they are received pay over the same or an equivalent amount to his principal or deposit the same or an equivalent amount in a trust account in a chartered bank; and, except as here­ inafter provided a mercantile agent shall not make use of or apply the moneys or any portion thereof to any purpose other than payment to or on behalf of his principal.

(3) Notwithstanding the foregoing provisions of this section, every mercantile agent may apply the moneys real­ ized from the sale or other disposition of any consignment in payment of any commission or remuneration to which he may be lawfully entitled in respect of the consignment, and in payment of any disbursements or expenses which he may be lawfully entitled to charge to his principal in respect of the consignment. 1.2.

Every mercantile agent by whom moneys are pay­ able to a principal in respect of a consignment shall remit the same to or to the order of the principal not later than ten days after the said moneys are received by the said mer­ cantile agent. 13.

No mercantile agent shall be entitled to have or re­ tain any fee, commission, remuneration or profit unless he has substantially complied with the provisions of sections 6 to 12 inclusive, and any fee, commission, remuneration or profit obtained or retained where there has not been such compliance may be recovered by the principal as moneys had and received by the mercantile agent to the use of the principal.

5 14.-

(1) No mercantile agent shall purchase any con­ fll~~ncd pl'oducts without the prior consent of the principal, given after full and clear disclosure by the mercantile agent to the principal of all material circumstances.

(2) The onus of establishing such disclosure and the con­ sent of the principal shall be upon the mercantile agent.

(3) Where any mercantile agent has purchased consigned products without complying with the provisions of this sec­ tion, any profit made by him shall belong to and may be re­ covered by the principal; but any loss shall be borne by the mercantile agent.

(4) Every mercantile agent who purchases any consigned products shall within ten days thereafter render to the principal an account in writing stating clearly that the mer­ cantile agent has purchased for his own account, and indi­ cating precisely and in detail the goods so purchased, the prices paid therefor and the amounts due and owing to the principal in respect thereof.

(5) Nothing in this

section shall affect the validity of any sale or other disposition of any consigned products for valuable consideration made by a mercantile agent to any person acting in good faith. 15. Every mercantile agent and every director, officer, shareholder, employee and agent of a mercanJ,ile agent, who furnishes a principal with false or misleading information regardillg' any consignment 01' the disposition thereof 01' the moneys received UH~refor shall be guilty of an offence against this Act, unless he furnishes a reasonable explanation of the ['lTor and proves that there was no intent to deceive 01' mislead. 16.

Every mercantile agent, under obligation to give im­ partial distribution of any products to or among any persons or class of persons, who, without justification, discriminates in price, adjustments, facilities for purchase, supply or othanvise, between or among such persons or members of such class shall be guilty of an offence against this Act. 17. If, in any action brought by or on behalf of any princi­ pal before the expiration of six years from the sale or other final disposition of any consignment, it appears that the mer­ cautile agent has not substantially complied with the pro­ visions of

section G, it shall as against the mercantile agent be deemed, Tn'ima [(wie, that the products or portion thereof as to which there is any dispute were sold or otherwise dis­ posed of at such prices as products in good condition of a similar description are shown by or on behalf of the princi­ pal to have been sold or disposed of at or about the same time; and the burden of proving a sale or other disposition at other prices, and of proving any losses, det(,=)rioration, rebates, allowances, expenses, disbursements and deductions, shall lie upon the mercantile agent, and to the full extent to which the mercantile agent fails to discharge such burden of proof the principal shall recover judgment.

6 18.

At the request of his principal, or on the production by any person of an authorization thereunto from the prin­ cipal, every mercantile agent, and every director, officer, employee and agent of the mercantile agent shall admit the principal or authorized person, as the case may be, to all parts of the premises of, or used or occupied by or on behalf of, the mercantile agent, where there are or have been stored or kept any products, or where there are or have been kept any records of the mercantile agent, and shall permit him to inspect the said premises and their contents; and the mercantile agent or director, officer, employee or agent of the mercantile agent shall at the same time produce and submit for inspection of the principal or authorized person, as the case may be, all records relating to or con­ taining any reference to the products of the principal or the disposition made of them, or to the proceeds thereof. 19.-

(1) The Minister may from time to time by writing appoint and authorize any person or persons to inspect the books, records and premises of mercantile agents. Such appointment may be made generally or by description and without naming the person or persons whose books, records and premises are to be examined.

(2) On the production by any person of the authority of the Minister every mercantile agent and every director, officer, employee and agent of a mercantile agent shall admit such authorized person to all parts of the premises of, 01' used or occupied by or on behalf of, the mer­ cantile agent where there are or have been stored or kept any products, or where there are or have been kept books or any records of the mercantile agent, and the mercantile agent or director, officer, employee or agent of the mer­ cantile agent shall at the same time produce and submit for inspection of such authorized person all books and records relating to or containing any reference to transactions deal­ ing with consigned products. 20.

Every mercantile agent and every director, officer, employee and agent of a mercantile agent who, in violation of the provisions of this Act, refuses or neglects to admit a principal or any person authorized by him or by the Minister or who refuses or neglects to produce 01' submit for the in­ spection of the principal or any authorized person, any book , or record, or who refuses or neglects to furnish the principal or authorized person with the means and assistance neces­ sary for making any entry or inspection, or who prevents or impedes the principal or authorized person in his inspec­ tion, shall be guilty of an offence against this Act. 21.

Every mercantile agent shall cause a copy of this Act to be posted up, and to be kept posted up, in a conspicu­ ous place on his premises, and it shall be the duty of every mercantile agent to cause his directors, officers, employees and agents to become acquainted with the provisions thereof.

7 ZZ. Every director, officer, employee and agent of every mercantile agent shall comply with the provisions of this Act, and shall, so far as he has authority over any other person, cause the same to be complied with; and every such director, officer, employee, 01' agent who fails to comply with any provision of this Act shall be guilty of an offence against this Act. 23.

Where an offence against this Act is committed by a mercantile agent, the director, officer, employee or agent of the mercantile agent in charge of the business of the mer­ cantile agent at the place at which the offence is commi,tted shall l)rima facie be deemed to be a party to the offence so committed and shall be personally liable to the penalties pre­ scribed for the offence as a principal offender; and the books and records of such mercantile agent shall, as against the director, officer, employee 01' agent, be prima facie evi­ dence of ~he facts and transactions therein recorded, set out, or indicated, but nothing in this

section shall relieve the mercantile ag'ent 01' the person who actually committed the offence from liability therefor. 2·1. Every offence against this Act, committed by any director, officer, employee 01' agent of a corporation acting as mercantile agent shall be deemed to be the offence of the corporation, and the corporation shall be answerable for and be liable to the penalty for the offence; but nothing in this

section shall absolve the actual offender from liability in l'espect of the offence. Z5.-

(1) So far as the legislative authority of this Prov­ ince extends, no 'COl'pol'alion authorized to carryon the bus­ iness of mercantile agent, the major 01' a substantial portion of whose shares is held- (

a) by or on behalf of any person 01' persons, sharehold­ ers in any corporation carrying on within or with­ out the Province a wholesale or jobbing business in products; or (

b) by or on behalf of any person, partnership or cor­ poration or group of corporations carrying on within or without the Province a wholesale or jobbing bus­ iness in products; or (

c) by or on behalf of any partnersnip '()r corporation which is part of or a member of or belongs to a group or organization of partnerships or corpora­ tions carrying on within or without the Province a wholesale or jobbing business in products- shall calTY on the business of mercantile agent in the Prov­ ince; and no corporation authorized to carryon the business of mel'cantile agent, which is ]ll1l't of or a member of. or belongs to a group or organization of pm'Lnel'ships or cor­ porations, or both, carrying on within or without the Prov­ ince a wholesale or jobbing business in products, shall carry on the business of mercantile agent in the Province.

(2) No mercantile agent shall sell, consign, or otherwise dispose of the products of his principal to- (

a) any partnership or corporation which is substan­ tially owned, operated or controlled by the same person or group or class of persons, or organization, as substantially owns, operates, or controls the mer­ cantile agent; (

b) any partnership or corporation which is part of or a member of, or belongs to, any group or organiza­ tion of partnerships or corporations, or both, to which the mercantile agent belongs or of which the mercantile agent is a member or part. (3) 'rhe Supreme Court shall have such jurisdiction as may be necessary to give effect to the provisions of this sec­ tion, and in addition to any other relief may, on the

summary application of the Attorney General, order the dissolution of any corporation incorporated under the laws of the Prov­ ince which contravenes the provisions of this

section and the cancellation of any registration of any corporation, which contravenes the provisions of this section.

(4) Eyery mercantile agent contravening the provisions of this

section shall be guilty of an offence against this Act. 26. Nothing in this Act shall apply to the marketing through Co-ol)erative agsociations, or through corporations controlled or operated by co-operative associations, of the products of the members of such associations. ~7.-

(1) Any person guilty of an offence against this Act or neglecting, refuging or omitting to comply with any of the provisions of this Act, or committing any breach or contravention of any of the provisions thereof shall on sum­ mary conviction be liable, if an individual, to a penalty not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years, or to both; and if a corpora­ tion, to a fine not exceeding one hundred thousand dollars.

(2) In the case of any offence punishable under this sec­ tion, the complaint shall be made or the information shall be laid within six months from the time when the matter of complaint or information came to the knowledge of the principal, provided that no complaint may be made or in­ formation laid more than six years after the matter of com­ plaint or information arose. ~8. The Lieutenant Governor in Council shall have power to repeal any

section or sections of The Produce Merchants Act, 1922, being

chapter 212 of the Hevised Statutes of Alberta, 1922, as from a date to be fixed by proclamation. ~9. This Act shall come into force upon a date to be fixed by Proclamation of the Lieutenant Governor in Council.

No. 12. FIRST SESSION SIXTH LEGISLATURE 17 GEORGE V 1927 BII-""'L

An Act respecting the Duties of Agents in the Sale of Products of the Soil. Received and read the First time ................... . Second time .................. . Third time ................... . HON. MR. HOADLEY ltDMONTON: Y. D. McI.EAN, ACTING KING'S PRINTER &.D. 1927 Title: 1927 (6th, 1st) Bill 12,

An Act respecting the Duties of Agents in the Sale of Products of the Soil