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Statutes of Newfoundland and Labrador 2009


CHAPTER C-31.1

AN ACT RESPECTING CONSUMER PROTECTION AND BUSINESS PRACTICES

(Assented to May 28, 2009)

Analysis


        1.   Short title

              PART I
DEFINITIONS
AND APPLICATION

        2.   Definitions

        3.   Waiver

              PART II
ADMINISTRATION

        4.   Director and assistant director

        5.   Powers and duties of director

        6.   Fees and forms

              PART III
UNFAIR PRACTICES

        7.   Unfair consumer practices

        8.   Unconscionable acts

        9.   Prohibition

      10.   Remedies of consumers

      11.   Definitions

      12.   Court may reopen transaction

      13.   Exercise of powers of court

      14.   Burden of proof

      15.   Factors to be considered by court

      16.   Relief in Trial Division

      17.   Saving genuine holder for value and existing jurisdiction

              PART IV
UNSOLICITED GOODS
AND SERVICES AND CREDIT CARDS

      18.   Definitions

      19.   Unsolicited goods or services

      20.   Material change considered unsolicited

      21.   Consumer's remedy

      22.   Credit arrangements

              PART V
CONSUMER CONTRACTS

      23.   Definition

      24.   Content of contract

      25.   Cancellation rights

      26.   Cancellation of contract

      27.   Restriction on enforcement of contract

      28.   Definition

      29.   Disclosure of information

      30.   Distance sales contract in electronic form

      31.   Copy of distance sales contract

      32.   Cancellation of distance sales contract

      33.   Refunds by supplier on cancellation

      34.   Return of goods by consumer on cancellation

      35.   Consumer's recourse regarding credit card charges

              PART VI
CREDIT REPORTS

      36.   Definitions

      37.   Application of Part

      38.   Disclosure of consumer report

      39.   Contents of consumer report

      40.   Credit report

      41.   Personal information

      42.   Disclosure of file to consumer

      43.   Alteration of consumer information

      44.   Sale of files

              PART VII
COST OF CONSUMER CREDIT DISCLOSURE

      45.   Interpretation

      46.   Application

      47.   Delivery of disclosure statements

      48.   Disclosure

      49.   Delivery

      50.   Insurer

      51.   Cancellation of optional services

      52.   Prepayment of credit

      53.   Default charges

      54.   Invitation to defer payment and acceleration clause

      55.   Non-business credit grantors

      56.   Business credit grantors

      57.   Application

      58.   Advertising

      59.   Advertising interest-free periods

      60.   Disclosure statements

      61.   Interest change disclosure

      62.   Increases in outstanding principal

      63.   Amendments

      64.   Mortgage renewal disclosure

      65.   Application

      66.   Advertising

      67.   Interest free periods

      68.   Open credit disclosure

      69.   Statements of account

      70.   Transaction description

      71.   Credit card by application

      72.   Application for credit card

      73.   Additional credit card disclosure

      74.   Limitation of liability

      75.   Application

      76.   Advertising requirements

      77.   Disclosure

      78.   Maximum liability for residual obligation lease

      79.   Interpretation

      80.   Recovery of overpayments and compensation

      81.   Remedies

      82.   Assignee

      83.   Regulations

              PART VIII
LICENCES

      84.   Definitions

      85.   Licence required

      86.   Denial of licence

      87.   Terms and conditions of a licence

      88.   Suspension and cancellation of a licence

      89.   Production of licence

      90.   Certificate of registrar

      91.   Address for service

      92.   Notice of change

      93.   Annual return

      94.   Registration continues

      95.   Exception to licensing requirement

      96.   Bonds

              PART IX
INVESTIGATION
AND ENFORCEMENT

      97.   Investigations

      98.   Proof of documents

      99.   Freezing orders

    100.   Receiving order

    101.   Compliance

    102.   Compliance orders

    103.   Director's actions

    104.   Actions on behalf of consumer

    105.   Interim injunction

              PART X
REGULATIONS

    106.   Regulations

              PART XI
APPEALS

    107.   Appeals

    108.   Evidence

              PART XII
OFFENCE

    109.   Offences

              PART XIII
CONSEQUENTIAL AMENDMENTS, REPEAL
AND COMMENCEMENT

    110.   Transitional

    111.   RSNL1990 cM-18 and CNLR 1006/96 Amdt.

    112.   Acts Repealed

    113.   Commencement


Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Consumer Protection and Business Practices Act.

PART I
DEFINITIONS
AND APPLICATION

Definitions

        2. In this Act

             (a)  "consumer" means a natural person acting for personal, family or household purposes but does not include a person who is acting for business purposes;

             (b)  "consumer transaction" means an act or instance of conducting business or other dealings with a consumer including an agreement between a supplier and a consumer in which the supplier agrees to supply goods and services for payment;

             (c)  "credit" means the advancing of money, goods or services to or on behalf of another for repayment at a later time, whether or not there is a cost of borrowing, and includes variable credit;

             (d)  "director" means the Director of Consumer Protection and Business Practices appointed under section 4;

             (e)  "goods" means personal property or a right or interest in personal property that is used or ordinarily used primarily for personal, family or household purposes including personal property that becomes fixtures subsequent to a consumer transaction but does not include securities as defined in the Securities Act;

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

             (g)  "licence" means a licence issued or renewed under this Act;

             (h)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

              (i)  "services" means services provided to a consumer for primarily personal, family or household purposes including

                      (i)  for the maintenance or repair of goods or real property owned by a consumer,

                     (ii)  in conjunction with the use of social, recreational or physical fitness facilities,

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

                    (iv)  for educational purposes; and

              (j)  "supplier" means a person who in the course of his or her business offers or advertises the sale of goods or services to a consumer or who engages in a consumer transaction with a consumer and includes the assignee of the rights and obligations of a supplier.

Waiver

        3. (1) A waiver or release by a person of the person's rights, benefits or protection under this Act or regulations is void.

             (2)  Subsection (1) does not apply to a release made by a person to settle a dispute.

PART II
ADMINISTRATION

Director and assistant director

        4. (1) The minister shall appoint a Director of Consumer Protection and Business Practices.

             (2)  The minister may appoint an Assistant Director of Consumer Protection and Business Practices who, in the absence or incapacity of the director, shall perform the functions and exercise the powers of the director.

Powers and duties of director

        5. (1) The powers and duties of the director are

             (a)  to exercise the powers and perform the duties conferred or imposed on him or her under this Act;

             (b)  to receive and act on complaints respecting consumer transactions;

             (c)  to make inquiries, gather information and attempt to mediate or resolve complaints between a consumer and a supplier;

             (d)  to publish reports respecting the enforcement and administration of this Act; and

             (e)  to inform consumers and suppliers of this Act.

             (2)  The director, in the performance of his or her duties and responsibilities under this Act has the powers of a commissioner under the Public Inquiries Act, 2006.

Fees and forms

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

PART III
UNFAIR PRACTICES

Division 1
Consumer Practices

Unfair consumer practices

        7. (1) In this Part, an unfair business practice is a representation, conduct or failure to disclose material facts that has the effect, or might reasonably have the effect, of deceiving or misleading a consumer, and includes

             (a)  a representation that the goods or services have sponsorship, approval, performance characteristics, accessories, ingredients, quantities, components, uses or benefits that they do not have;

             (b)  a representation that the supplier has sponsorship, approval, status, affiliation or connection that he or she does not have;

             (c)  a representation that the goods or services are of a particular standard, quality or grade where they are not;

             (d)  a representation that the goods are of a particular style, model or origin where they are not;

             (e)  a representation that the goods have been used to an extent that is different from their actual use;

              (f)  a representation that the goods are new or unused where they are not or where they are reconditioned, reclaimed, altered or deteriorated;

             (g)  a representation that the goods have a particular prior history or use where they have not;

             (h)  a representation that the goods or services have been made available in accordance with a previous representation where they have not;

              (i)  a representation that the goods or services are available, or are available at a reduced price, for a reason that is different from the fact;

              (j)  a representation that the goods or services have been supplied in accordance with a previous representation, where they have not;

             (k)  a representation that the goods or services are available when the supplier knows or ought to know that they are not or has no intention of supplying them;

              (l)  a representation that a specific price advantage exists where it does not;

            (m)  a representation that a part, replacement, repair or adjustment is needed where it is not;

             (n)  a representation that repairs have been made or parts installed where that is not the case;

             (o)  a representation that the supplier is soliciting or communicating with consumers with a certain interest or purpose where he or she is not;

             (p)  a representation that a consumer transaction involves or does not involve rights, remedies or obligations where that representation is deceptive or misleading;

             (q)  a representation such that a consumer might reasonably conclude that the goods are available in greater quantities than are in fact available from the supplier;

              (r)  a representation as to the authority of a salesperson, representative, employee or agent to negotiate the final terms of a consumer transaction where the representation is not accurate;

             (s)  the giving of an estimate or evaluation of the price of goods or services that is materially less than the price subsequently determined or demanded, where the supplier has proceeded with the performance of the consumer transaction without the express prior consent of the consumer;

              (t)  the giving of less prominence in an advertisement or display to the total price of goods or services than to the price of a part of the goods or services;

             (u)  the giving of less prominence in a representation, advertisement or display to the amount of an instalment to be paid for goods or services than to the total price of the goods or services;

             (v)  a representation that goods or services are free when that is not the case; and

            (w)  a representation using exaggeration, innuendo or ambiguity as to a material fact.

             (2)  An unfair business practice may occur before, during or after a consumer transaction notwithstanding that the consumer transaction is not completed or a consumer has not suffered loss or damage.

             (3)  With the exception of paragraphs (1)(t) and (u), subsection (1) does not apply to a supplier who, on behalf of another supplier, broadcasts by radio or television, or prints, publishes or distributes an advertisement that he or she has accepted in good faith.

Unconscionable acts

        8. (1) In determining whether an act or practice is unconscionable the court shall consider the circumstances that the supplier knew or ought to have known, including

             (a)  that at the time the consumer transaction was entered into there was no reasonable probability of full payment of the purchase price by the consumer;

             (b)  that the consumer was unable to receive a substantial benefit from the consumer transaction;

             (c)  that at the time the consumer transaction was entered into the price grossly exceeded the price at which similar goods or services were available to similar consumers;

             (d)  that the terms and conditions of the consumer transaction were so one-sided, harsh or adverse to the consumer as to be inequitable;

             (e)  that the supplier used trickery or undue pressure in order to induce the consumer to enter into the consumer transaction; or

              (f)  that the supplier took advantage of the extreme necessity or helplessness of the consumer or the inability of the consumer to protect his or her interests because of his or her physical or mental disability, his or her ignorance, illiteracy, age or emotional state, or his or her inability to understand the character, nature or language of the consumer transaction.

             (2)  An unconscionable act or practice may occur before, during or after a consumer transaction.

Prohibition

        9. (1) A person shall not engage in an unfair business practice or unconscionable act or practice.

             (2)  Where it is alleged that a supplier is engaging in or has engaged in an unfair business practice or an unconscionable act or practice, the burden of proof that the supplier is not engaging in or has not engaged in an unfair business practice or an unconscionable act or practice rests with the supplier.

Remedies of consumers

      10. (1) Where a consumer has entered into a transaction with a supplier and has suffered damages as a result of an unfair business practice or unconscionable act or practice, he or she may start an action in a court against the supplier.

             (2)  In an action started under this section, or in another action concerning a supplier where it appears to the court that an unfair business practice or unconscionable act or practice has occurred, the court may

             (a)  make an order declaring the act or practice to be an unfair business practice or unconscionable act or practice;

             (b)  award damages for a loss suffered including exemplary or punitive damages;

             (c)  make an order rescinding the transaction;

             (d)  grant an interim or permanent injunction restraining the supplier from continuing the unfair business practice or unconscionable act or practice;

             (e)  reopen the transaction and repay the amount paid to the supplier by the consumer or relieve the consumer from the payment of an amount in excess of the amount judged by the court to be a fair price for the transaction; and

              (f)  make other directions and grant other relief that the court considers appropriate.

             (3)  Where a consumer begins an action under this section, he or she shall serve the director with a copy of the statement of claim and upon the request of the director to the court the director shall be added as a party to the action.

             (4)  Nothing in this section limits a remedy a consumer may have with respect to a transaction under the common law or another Part.

Division 2
Relief from Unconscionable Transactions

Definitions

      11. In this Division

             (a)  "cost of the loan" means the whole cost to the debtor of money lent and includes interest, discount, subscription, premium, dues, bonus, commission, brokerage fees and charges, but not actual lawful and necessary disbursements made to the Registrar of Deeds, the Registrar of the Supreme Court, the sheriff or a city or a town clerk of a municipality;

             (b)  "creditor" includes the person advancing money lent and the assignee of a claim arising or security given in respect of money lent;

             (c)  "debtor" means a person to whom or on whose behalf money lent is advanced, and includes a surety and endorser or other person liable for the repayment of money lent or upon an agreement or collateral or other security given in respect of it; and

             (d)  "money lent" includes money advanced on behalf of a person in a transaction which, whatever its form may be, is substantially one of money-lending or securing the repayment of money so advanced and includes a mortgage.

Court may reopen transaction

      12. Where, in respect of money lent, a judge finds that having regard to the risk and to the circumstances, the cost of the loan is excessive and that the transaction is harsh and unconscionable the judge may

             (a)  reopen the transaction and take an account between the creditor and the debtor;

             (b)  notwithstanding a statement or settlement of account or an agreement purporting to close previous dealings and create a new obligation, reopen an account already taken and relieve the debtor from payment of a sum in excess of the sum determined by the judge to be fairly due in respect of the principal and the cost of the loan;

             (c)  order the creditor to repay the excess where it has been paid or allowed on account by the debtor; and

             (d)  set aside either wholly or in part or revise or alter a security given or agreement made in respect of the money lent, and, where the creditor has parted with the security, order the creditor to indemnify the debtor.

Exercise of powers of court

      13. The powers conferred by section 12 may be exercised in an action or proceeding

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

             (b)  by the debtor notwithstanding a provision or agreement to the contrary and notwithstanding that the time for repayment of the loan or an instalment of it has not arrived; or

             (c)  in which the amount due or to become due in respect of money lent is in question.

Burden of proof

      14. In an action taken under this Division the burden of proof is on the creditor to establish that having regard to the risk and to the circumstances the cost of the loan is not excessive and is not harsh and unconscionable.

Factors to be considered by court

      15. (1) In determining whether the cost of a loan is excessive a judge shall consider

             (a)  the interest rates prevailing at the time the loan was entered into for loans of a similar nature, including the prime rate of interest charged by the chartered banks to their most credit-worthy customers;

             (b)  the degree of risk assumed by the creditor; and

             (c)  the cost of a similar loan to a debtor in similar circumstances.

             (2)  In determining whether the transaction is harsh and unconscionable a judge shall consider

             (a)  whether the debtor was unable to protect his or her own interests because of physical or mental disability, age, illiteracy, ignorance or inability to understand the nature of the lending transaction;

             (b)  whether the debtor was subject to undue pressure to enter into the lending transaction; or

             (c)  whether, at the time the loan was entered into, there was no reasonable probability of full payment of the principal amount of the loan and the cost of the loan.

Relief in Trial Division

      16. In addition to a right that a debtor may have under this or another Division or otherwise in respect of money lent, the debtor may apply for relief under this Division to a judge and the judge on the application may exercise the powers of the court under section 12.

Saving genuine holder for value and existing jurisdiction

      17. Nothing in this Division affects the rights of a genuine assignee or holder for value without notice or derogates from the existing powers or jurisdiction of a judge.

PART IV
UNSOLICITED GOODS
AND SERVICES AND CREDIT CARDS

Definitions

      18. In this Part, "unsolicited goods" means personal property provided to a person who did not request it, but does not include

             (a)  personal property that the recipient knows or ought to know is intended for another person, or

             (b)  personal property supplied under a written contract to which the recipient is a party that provides for the periodic supply of personal property to the recipient without further solicitation,

and a request for goods shall not be inferred from inaction or the passing of time alone.

Unsolicited goods or services

      19. (1) A consumer does not have a legal obligation in respect of unsolicited goods or services unless and until the consumer expressly acknowledges to the supplier in writing his or her intention to accept the goods or services.

             (2)  Unless the consumer has given the acknowledgment referred to in subsection (1), the supplier does not have a cause of action for a loss, use, misuse, possession, damage or misappropriation in respect of the goods or services or the value obtained by the use of the goods or services.

             (3)  Where it is alleged that the supplier supplied unsolicited goods or services, the burden of proof that the goods or services were not unsolicited is on the supplier.

Material change considered unsolicited

      20. (1) Where a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in the goods or services, the goods or services shall be considered to be unsolicited from the time of the material change forward unless the supplier is able to establish that the consumer consented to the material change.

             (2)  A supplier may rely on a consumer's consent to a material change that is made orally, in writing or by other affirmative action but the supplier shall bear the onus of proving the consumer's consent.

Consumer's remedy

      21. (1) A consumer who pays for unsolicited goods or services may give to the supplier a demand, in writing, for a refund from the supplier within 60 days after the consumer first received the goods or services where the consumer did not expressly acknowledge to the supplier in writing his or her intention to accept the goods or services.

             (2)  A demand is sufficient if it indicates, in any way, the intention of the consumer to demand a refund of a payment made for unsolicited goods or services.

             (3)  Where a supplier receives a demand for a refund, the supplier shall refund to the consumer, within 15 days after the supplier received the demand, all money received in respect of the unsolicited goods or services.

Credit arrangements

      22. (1) An action shall not be brought against a person upon an arrangement for the extension of credit evidenced by a credit card unless the person to whom credit is extended requested or accepted the credit arrangement and card in writing.

             (2)  The use of a credit card by a person whose name appears on the credit card shall be considered to constitute written acceptance by the person of the card and the terms of credit.

PART V
CONSUMER CONTRACTS

Division 1
Direct Sales Contracts

Definition

      23. In this Division and Part VIII, "direct sales contract" means an agreement between a consumer and a supplier that is negotiated or concluded in person at a place other than

             (a)  the supplier's place of business; or

             (b)  a market place, an auction, trade fair, agricultural fair or exhibition.

Content of contract

      24. (1) A written contract shall include

             (a)  the consumer's name and address;

             (b)  the supplier's name, business address, telephone number and, where applicable, fax number;

             (c)  where applicable, the salesperson's name;

             (d)  the date and place of the contract;

             (e)  a description of the goods and services, sufficient to identify them;

              (f)  a statement of cancellation rights that conforms with the requirements of the regulations;

             (g)  itemized prices of the goods or services, or both;

             (h)  the total amount of the contract;

              (i)  the terms of payment;

              (j)  in the case of a contract for the future delivery of goods, future provision of services or goods together with services, the delivery date for the goods or start date for the services or both;

             (k)  in the case of a contract for the future provision of services or goods together with services, the completion date for supplying the services or the goods together with services;

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

                      (i)  a statement of any security taken for payment, and

                     (ii)  the cost of credit in accordance with Part VII;

            (m)  where goods are taken in trade, a description of and the value of the trade-in; and

             (n)  the signatures of both parties.

             (2)  Where credit is extended or arranged by the supplier and the credit contract is separate from or attached to the direct sales contract, the credit contract is conditional on the direct sales contract and, where the direct sales contract is cancelled, that cancellation has the effect of cancelling the credit contract.

             (3)  Upon entering into a direct sales contract with a purchaser,

             (a)  a supplier shall furnish his or her address; and

             (b)  a salesperson of a supplier shall furnish the supplier's and his or her own address

in writing to that purchaser.

             (4)  A provision in a written direct sales contract to the effect that that contract contains the entire agreement entered into between the parties shall not prevail over oral representations made by the salesperson or supplier with the intent or effect of inducing the purchaser to enter into the contract.

             (5)  A supplier or salesperson shall, immediately upon receiving a payment under a direct sales contract, deliver to the purchaser a written receipt.

Cancellation rights

      25. A statement of cancellation rights shall comply with the requirements of the regulations.

Cancellation of contract

      26. (1) A direct sales contract may be cancelled

             (a)  within 10 days after a copy of the contract is received; or

             (b)  within one year from the date of entering the contract where

                      (i)  the supplier does not comply with legislative or regulatory requirements regarding licensing or registration, including financial security requirements or conditions on his or her licence or registration at the time the contract was made, within 30 days of the date stated in the contract, or where the goods or services have not been received, unless delivery has been accepted after the 30 days have passed,

                     (ii)  the supplier does not meet the requirements for the content of the contract as specified in subsection 24(1), or

                    (iii)  within 30 days of the supply date specified in the contract, or the amended supply date agreed upon, the service has not started or the goods and services have not been received and delivery has not been accepted, after the 30 days have lapsed.

             (2)  Where a direct sales contract is cancelled, the supplier shall, within 15 days of the cancellation, refund to the consumer all money and return to the consumer any trade-in or an amount equal to the value of the trade-in received under the contract.

             (3)  In the case of a contract respecting goods, the consumer shall, upon receiving the refund and return of the trade-in, or an amount equal to the value of the trade-in, return the goods to the supplier.

             (4)  Cancellation of a contract shall be by notice and a notice of cancellation is adequate if, however expressed, it indicates the intention of the consumer to cancel the contract.

             (5)  Where a consumer cancels a direct sales contract, the consumer shall send or deliver the cancellation notice to the supplier using a method where the consumer can provide evidence he or she cancelled the contract and the date on which this occurred, including registered mail, fax or personal delivery.

             (6)  Where a method of sending or delivering the cancellation notice other than personal delivery is used, the cancellation is considered to be given when sent.

             (7)  A breach of an administrative requirement that does not affect a consumer's interests shall not result in extended cancellation rights.

             (8)  These provisions do not affect another remedy or right the consumer may have at law.

Restriction on enforcement of contract

      27. An action shall not be brought by a supplier against a purchaser for the enforcement of a direct sales contract unless the supplier was licensed, under this Act, at the time that the purchaser entered into the contract.

Division 2
Distant Sales Contracts

Definition

      28. In this Division, "distant sales contract" means a contract for the supply of goods or services between a supplier and a consumer that is not entered into in person and, with respect to goods, for which the consumer does not have the opportunity to inspect the goods that are the subject of the contract before the contract is entered into, but does not include a prepaid purchase card.

Disclosure of information

      29. (1) A supplier shall disclose the following information to a consumer before the consumer enters into a distance sales contract:

             (a)  the information referred to in section 24;

             (b)  if available, the supplier's electronic mail address;

             (c)  a detailed description of the goods or services to be supplied under the contract, including relevant technical or system specifications;

             (d)  the currency in which amounts owing under the contract are payable;

             (e)  the supplier's delivery arrangements, including the identity of the shipper, the mode of transportation and the place of delivery to the consumer;

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

             (g)  other prescribed information.

             (2)  The supplier shall disclose the information required under subsection (1) in a clear and comprehensible manner.

Distance sales contract in electronic form

      30. (1) In this section, "electronic" has the same meaning as in the Electronic Commerce Act.

             (2)  Before a consumer enters into a distance sales contract that is in electronic form, a supplier shall

             (a)  make the information required under section 29 available in a manner that

                      (i)  requires the consumer to access the information, and

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

             (b)  provide a consumer with an express opportunity

                      (i)  to correct errors in the contract, and

                     (ii)  to accept or decline the contract.

Copy of distance sales contract

  31. (1) A supplier shall give a consumer who enters into a distance sales contract a copy of the contract within 15 days after the contract is entered into.

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

             (a)  the information described in section 29,

             (b)  the consumer's name, and

             (c)  the date the contract was entered into.

             (3)  A supplier may give a copy of a distance sales contract to a consumer

             (a)  by sending the copy by electronic mail to the electronic mail address provided by the consumer to the supplier for the provision of information related to the contract, or

             (b)  by giving the copy by another manner that enables the supplier to prove that the consumer has received and retained the copy.

             (4)  A copy of the distance sales contract given in accordance with paragraph (3)(a) is considered to be received on the third day after it is sent.

Cancellation of distance sales contract

      32. (1) A consumer may cancel a distance sales contract by giving notice of cancellation to the supplier

             (a)  not later than 10 days after the date that the consumer receives a copy of the contract where

                      (i)  the supplier does not comply with section 30, or

                     (ii)  the contract does not comply with section 31,

             (b)  not later than 30 days after the date that the contract is entered into where the supplier does not provide the consumer with a copy of the contract in accordance with subsection 31(1),

             (c)  before the goods or services are delivered where the goods or services to be delivered under the contract are not delivered to the consumer within 30 days of the supply date, or

             (d)  before the goods or services are delivered where the supply date is not specified in the contract and the supplier does not deliver the goods or services within 30 days from the date the contract is entered into.

             (2)  Where a distance sales contract is cancelled under subsection (1), the following are also cancelled:

             (a)  another related consumer transaction;

             (b)  a guarantee given in respect of the total price under the contract;

             (c)  security given by the consumer in respect of the total price under the contract; and

             (d)  where credit is extended or arranged by the supplier in respect of a distance sales contract, the credit agreement, whether or not the credit agreement is a part of or attached to the distance sales contract.

Refunds by supplier on cancellation

      33. Where a distance sales contract is cancelled under section 32, the supplier, within 15 days after the notice of cancellation has been given, shall refund to the consumer, without deduction, all money received in respect of the contract and in respect of a related consumer transaction, whether received from the consumer or another person.

Return of goods by consumer on cancellation

      34. (1) Where a distance sales contract is cancelled under section 32, the consumer, within 15 days after the notice of cancellation has been given or after the goods have been delivered to the consumer, whichever is later, shall return goods received under the contract by delivering the goods to the person or place named in the contract as the person to whom or as the place where notice of cancellation may be given.

             (2)  The consumer shall return the goods unused and in the same condition as that in which they were delivered.

             (3)  The consumer may return the goods by a method that permits the consumer to produce confirmation of the delivery to the supplier.

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

             (5)  The supplier is responsible for the reasonable cost of returning the goods.

             (6)  Goods that are returned by the consumer other than by delivery in person are considered to have been returned at the time the goods are sent.

Consumer's recourse regarding credit card charges

      35. (1) A consumer who has charged to a credit card all or a part of the total price under a distance sales contract or a related consumer transaction may request the credit card issuer to cancel or reverse the credit card charge and associated interest or other charges where the consumer has cancelled the contract under section 32 and the supplier has not refunded all money as required under section 33.

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

             (a)  the supplier's name;

             (b)  the date the distance sales contract was entered into;

             (c)  the amount charged to the credit card in respect of the distance sales contract and a related consumer transaction;

             (d)  a description of the goods or services sufficient to identify them;

             (e)  the reason for cancellation of the distance sales contract; and

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

             (3)  The credit card issuer shall

             (a)  acknowledge the consumer's request within 30 days of receiving it, and

             (b)  if the request meets the requirements of subsection (2), cancel or reverse the credit card charge and any associated interest or other charges within the earlier of

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

                     (ii)  90 days.

PART VI
CREDIT REPORTS

Definitions

      36. In this Part

             (a)  "credit information" means information about an individual's credit, including the individual's name, age, place of residence, previous places of residence, marital status, spouse's name and age, number of dependants, particulars of education or professional qualifications, place of employment, previous places of employment, estimated income, paying habits, outstanding debt obligations, cost of living, or obligations and assets;

             (b)  "credit reporting agency" means a person who is engaged in providing credit reports to another person, whether for remuneration or otherwise; and

             (c)  "report" means a written, oral or other communication respecting credit information of an individual.

Application of Part

      37. This Part does not apply to a credit reporting agency, the reports of which deal only with industrial or commercial enterprises and are distributed only to those enterprises.

Disclosure of consumer report

      38. (1) A credit reporting agency shall not provide a credit report except

             (a)  in response to an order of a court;

             (b)  in accordance with the written instructions of the consumer to whom the credit report relates;

             (c)  in response to an order or direction made under this Part;

             (d)  with the prior consent of the consumer to whom the credit report relates, to a person that it has reason to believe

                      (i)  is involved in a business or credit transaction with the consumer, or

                     (ii)  intends to use the credit report for employment purposes; or

             (e)  to the government of the province or of Canada, or to a peace officer acting in the course of his or her duties.

             (2)  A person shall not seek to obtain a credit report from a credit reporting agency except for the purposes set out in subsection (1).

Contents of consumer report

      39. (1) A credit report shall not contain

             (a)  information of an unfavourable personal nature unless reasonable efforts have been made to corroborate the information, the absence of the corroboration is noted and accompanies the information, and the information is less than 7 years old;

             (b)  information as to judgments or judicial proceedings for the recovery of money owing for goods or services, or based upon default under a conditional sale contract or mortgage or chattels or realty, 7 years after the default first occurred or the judgment was given;

             (c)  information as to bankruptcies 7 years from the date of a discharge, except where a consumer has been bankrupt more than once;

             (d)  information as to debt 6 years after it has become due, unless the debt has been acknowledged by the debtor or the debtor's agent either in writing or by making part payment or partial satisfaction of the debt, in which case the 6 year period runs from the date of the most recent acknowledgment of the debt;

             (e)  information as to the non-payment of taxes or lawfully imposed fines 7 years after they have become due;

              (f)  information as to convictions for crimes 7 years from the date of conviction or, where the conviction resulted in imprisonment, 7 years from the date of release or parole, but convictions for crimes shall not be reported after a full pardon has been granted;

             (g)  information as to criminal charges where those charges have been dismissed or not proceeded with;

             (h)  information as to race, religion, sex, political opinion, colour, or ethnic, national or social origin;

              (i)  information as to writs that are more than 7 years old;

              (j)  information as to writs that have been issued more than one year before the making of the credit report, unless the credit reporting agency has ascertained the current status of the writ and has a record of its current status in the credit report; or

             (k)  other information as prohibited by the regulations.

             (2)  A credit reporting agency shall not collect, store, retain or report credit information unless it is capable of corroboration from another source, and a reference to that source appears in the records of that agency.

             (3)  A credit reporting agency shall not collect, store, retain, or report personal information unless it has made reasonable efforts to corroborate the evidence on which the personal information is based and a lack of corroboration is noted with the personal information and accompanies a consumer report including the personal information.

             (4)  A credit reporting agency shall not include in a credit report information other than the information stored in a form producible under section 42.

Credit report

      40. Where the credit risk of a consumer is being assessed by a person, that person shall, upon the request of the consumer, inform the consumer if a credit report has been obtained and the name of the credit reporting agency.

Personal information

      41. A person shall not procure or prepare a credit report containing personal information from a credit reporting agency unless that person notifies the consumer in writing of his or her intention to procure or prepare the report, together with the name and address of the credit reporting agency.

Disclosure of file to consumer

      42. (1) A credit reporting agency, during normal business hours, upon the request of a consumer, and without charge,

             (a)  shall disclose to the consumer whether or not it has collected or retains credit information respecting him or her;

             (b)  shall produce for examination in written form, clearly understandable to the consumer, the contents of all the credit information; and

             (c)  shall disclose the names of the recipients of a credit report and the contents of the report, made within a period of one year before the request.

             (2)  The credit reporting agency concerned shall permit a person to whom credit information is disclosed under subsection (1) to make a copy.

Alteration of consumer information

      43. (1) The director may direct the alteration, amendment, restriction or prohibition of the use of credit information that in his or her opinion is inaccurate or does not comply with this Part, and the credit reporting agency concerned shall comply with the director's direction under this section.

             (2)  Where a credit reporting agency is directed to alter or amend credit information under subsection (1) or alters or amends incorrect credit information without a direction from the director, the credit reporting agency shall notify all persons who have been supplied with the credit report within one year before the alteration or amendment.

Sale of files

      44. A person who is or has been a credit reporting agency shall not sell or lease its files except to a credit reporting agency registered under this Part.

PART VII
COST OF CONSUMER CREDIT DISCLOSURE

Interpretation

      45. (1) In this Part

             (a)  "advance" and "advanced" means value received in accordance with subsection (2);

             (b)  "APR" means the annual percentage rate calculated in accordance with the regulations;

             (c)  "associate", where used to indicate a relationship with a person means

                      (i)  a corporation of which that person beneficially owns or controls, directly or indirectly, shares or other securities currently convertible into shares, that carry more than 10% of the voting rights

                            (A)  under all circumstances,

                            (B)  because of the occurrence of an event that has occurred and is continuing, or

                            (C)  because of a currently exercisable option or right to purchase those shares or those convertible securities,

                     (ii)  a partner of that person acting on behalf of the partnership of which they are partners,

                    (iii)  a trust or estate in which that person has a substantial beneficial interest or in respect of which he or she serves as trustee or in a similar capacity,

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

                     (v)  a relative of that person or of his or her spouse where that relative has the same residence as that person;

             (d)  "assumed residual payment" means

                      (i)  for a lease that is neither an option lease nor a residual obligation lease, the estimated residual value,

                     (ii)  for an option lease, the lesser of the estimated residual value and the option price, assuming the option is exercised at the end of the lease term, and

                    (iii)  for a residual obligation lease, the estimated residual cash payment plus the estimated residual value;

             (e)  "borrower" means an individual who has entered into or who is negotiating to enter into a credit agreement if that individual, under that agreement, receives or is to receive credit from another party to the agreement, and

                      (i)  does not include a guarantor, and

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

              (f)  "brokerage fee" means an amount that a mortgagor or other borrower pays or agrees to pay to a mortgagee or loan broker as consideration for services in arranging, negotiating or facilitating the granting of credit to the mortgagor or borrower and includes an amount that is

                      (i)  deducted from the amount of credit that is extended to the mortgagor or borrower under the credit agreement, and

                     (ii)  paid to the mortgagee or loan broker by the credit grantor;

             (g)  "business day", with respect to a credit grantor, means a day on which the credit grantor is open for business;

             (h)  "capitalized amount" means the cash value of the leased goods plus the amount of other advances made to the lessee at or before the beginning of the term, minus the total amount of all payments made by the lessee at or before the beginning of the term;

              (i)  "cardholder" means an individual who is a borrower with respect to a credit card;

              (j)  "cash customer" means a person who buys a product and who provides full payment for the product at or before the time of its receipt;

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

                      (i)  for a sale to a borrower by a credit grantor or by an associate of a credit grantor who sells the product to cash customers in the ordinary course of business an amount that fairly represents the price for which the seller sells that product to cash customers, or, if the seller and the borrower agree on a lower price, that lower price,

                     (ii)  for a sale to which subparagraph (i) does not apply, the price agreed upon by the parties, or

                    (iii)  for an advertisement by a credit grantor or an associate of the credit grantor, the price at which the product is currently offered to cash customers or, if the credit grantor or the associate of the credit grantor does not currently offer the product to cash customers, the price stated in the advertisement, and

for the purpose of determining the amount advanced under a credit agreement, includes discounts, taxes and other charges payable by a cash customer;

              (l)  "cash value" of leased goods means

                      (i)  for a lease by a lessor who, in the ordinary course of business sells the product to cash customers, the price for which the lessor sells the product to cash customers, unless the parties have agreed to a lower price,

                     (ii)  for a lease by a lessor to whom paragraph (a) does not apply, a reasonable estimate of the cash value of the goods, and

                    (iii)  for an advertisement, the price for which the advertiser currently offers to sell the product to cash customers or, if the advertiser does not currently offer the product to cash customers, the price stated in the advertisement;

            (m)  "credit agreement" includes an agreement under which credit is extended that is

                      (i)  an agreement with respect to a loan of money, a credit sale, a line of credit or a credit card,

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

                    (iii)  a renewal of an agreement referred to in subparagraph (i) or (ii);

             (n)  "credit card" means a card or other device that can be used to obtain advances under a credit agreement for open credit;

             (o)  "credit card issuer" means a person who is a credit grantor with respect to a credit card;

             (p)  "credit grantor" means

                      (i)  a person who entered into or is negotiating to enter into a credit agreement if that person, under that agreement, extends or is to extend credit to another party to the agreement,

                     (ii)  if the rights of the person referred to in subparagraph (i) under the credit agreement are assigned to an assignee, that assignee, upon notice being given to the borrower,

                    (iii)  a credit card issuer,

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

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

             (q)  "credit sale" means a sale of a product in which the purchase is financed by the seller or manufacturer of the product or by an associate of the seller or manufacturer;

              (r)  "default charge" means a charge imposed on a borrower who fails to make a payment as it becomes due under a credit agreement or who fails to comply with another obligation under a credit agreement, but does not include interest on an overdue payment;

             (s)  "disbursement charge" means an expense that is incurred by a credit grantor for the purpose of arranging, documenting, insuring or securing a credit agreement and charged by the credit grantor to the borrower that is

                      (i)  a fee paid to register a document or information in, or to obtain a document or information from a public registry of an interest in real or personal property,

                     (ii)  the cost of professional services required for the purpose of confirming the value, condition, location or conformity to law of property that serves as security for a credit agreement if the borrower is given a report signed by the person providing the professional services and is free to give the report to third persons,

                    (iii)  for a high ratio mortgage as defined by regulation, a premium for insurance that protects the credit grantor against the risk of borrower default and a fee for tax account maintenance, and

                    (iv)  an expense designated by regulation as a disbursement charge;

              (t)  "estimated residual cash payment" means the amount that a lessee will be required to pay to a lessor at the end of the term of a residual obligation lease if the realizable value of the leased goods at the end of the term equals their estimated residual value;

             (u)  "estimated residual value" means the reasonable estimate, made by the lessor at the time the lease agreement was entered into, of the wholesale value of the leased goods at the end of the term;

             (v)  "fixed credit" means credit under a credit agreement that is not for open credit;

            (w)  "floating rate" means an interest rate that bears a specified mathematical relationship to an index rate that is an interest rate

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

                     (ii)  determined at the beginning of a period and applies throughout the period regardless of changes in the index rate during the period;

             (x)  "grace period" means a period in which interest accrues but will be forgiven if the borrower satisfies conditions specified in the credit agreement;

             (y)  "implicit finance charge" for a lease means the total of the periodic payments plus the assumed residual payments and less the capitalized amount;

             (z)  "index rate" means, with respect to a credit agreement, the rate that meets the criteria prescribed by regulation;

           (aa)  "individual" means a natural person;

          (bb)  "initial disclosure statement" means with respect to a credit agreement or a lease, the disclosure statement that is required under section 47 for that credit agreement or lease;

           (cc)  "interest" means charges that accrue over time and are determined by applying a rate to an amount that is owing from time to time under a credit agreement;

          (dd)  "interest-free period" means a period following the making of an advance during which interest does not accrue on the advance;

           (ee)  "lease" means an agreement for the hire of goods, except an agreement for the hire of goods with respect to a residential tenancy agreement;

            (ff)  "lessee" means an individual who entered into or who is negotiating to enter into a lease if that individual, under that lease, hires or is to hire goods from another party to the agreement;

          (gg)  "lessor" means a person who entered into or who is negotiating to enter into a lease if that person, under that lease, leases or is to lease goods to another party to the agreement;

          (hh)  "loan broker" means a person who, for compensation, arranges, negotiates or facilitates an extension of credit;

             (ii)  "mortgage broker" means a person who, for compensation, arranges, negotiates or facilitates an extension of a mortgage loan;

             (jj)  "mortgage loan" means a loan of money secured by an interest in real property;

           (kk)  "non-interest finance charge" means a charge that a borrower is required to pay with respect to a credit agreement, other than

                      (i)  interest,

                     (ii)  a prepayment charge,

                    (iii)  a default charge,

                    (iv)  a charge for an optional service,

                     (v)  a charge for a service referred to in paragraph (2)(f), (g) or (h), or

                    (vi)  with respect to a credit sale, a charge that would also be payable by a cash customer;

             (ll)  "open credit" means credit under a credit agreement if the credit agreement

                      (i)  anticipates multiple advances that are to be made when requested by the borrower in accordance with the agreement, and

                     (ii)  does not establish the total amount to be advanced to the borrower under the agreement although it may impose a credit limit;

         (mm)  "option lease" means a lease that gives the lessee the right to acquire title to or retain permanent possession of the leased goods by making a payment in addition to the payments required under the lease or by satisfying other specified conditions;

          (nn)  "option price" means the amount of the additional payment that the lessee shall make in order to exercise the option under an option lease;

          (oo)  "outstanding balance" means the total amount owing at any particular time under a credit agreement;

          (pp)  "payment" means value given by a borrower within the meaning of subsection (2);

          (qq)  "payment period" means one of the intervals into which the term of a credit agreement or a lease is divided for the purpose of determining the amount of and timing of payments;

            (rr)  "periodic payment" means a payment that, under a credit agreement or a lease, is to be made with respect to each payment period established under that agreement or lease;

           (ss)  "residual obligation lease" means a lease under which the lessee may be required at the end of the lease term to pay the lessor an amount based wholly or partly on the difference between the estimated residual value and the realizable value of the leased goods;

            (tt)  "scheduled payments credit agreement" means a credit agreement for fixed credit under which the amount advanced is to be repaid in accordance with a specified schedule of payments and that schedule may be subject to adjustment to accommodate contingencies including changes in the interest rate;

          (uu)  "security interest" means an interest in property that secures the borrower’s obligations under a credit agreement;

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

                      (i)  are married to each other,

                     (ii)  are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or

                    (iii)  have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year;

         (ww)  "term", with respect to a lease, unless the context indicates otherwise, means the period during which the lessee is entitled to retain possession of the leased goods;

            (xx)  "total cost of credit" means the difference between the value given or to be given within the meaning of subsection (4) by the borrower with respect to a credit agreement and the value received or to be received, within the meaning of subsection (2) by the borrower with respect to the credit agreement, disregarding the possibility of prepayment or default; and

          (yy)  "total lease cost" means the total of non-refundable payments that the lessee will be required to make in the ordinary course of events.

             (2)  The following constitute value received or to be received by a borrower with respect to a credit agreement:

             (a)  money transferred or to be transferred by the credit grantor to the borrower or to the order of the borrower under the credit agreement;

             (b)  the cash price of a product purchased or to be purchased under the credit agreement;

             (c)  the amount of a pre-existing monetary obligation of the borrower that is paid, discharged or consolidated by the credit grantor under the credit agreement;

             (d)  the cash value of goods under a lease;

             (e)  the amount of money obtained or to be obtained or the cash price of a product obtained or to be obtained through the use of a credit card obtained under the credit agreement;

              (f)  a following expense if the credit grantor incurred or is to incur the expense for the purpose of arranging, documenting, insuring or securing the credit agreement:

                      (i)  fees to a third party to record or register a document or information in, or to obtain a document or information from, a public registry of interest in real or personal property,

                     (ii)  fees for professional services required for the purpose of confirming the value, condition, conformity to law or location of property that serves as security for a credit agreement, if the borrower is given a report signed by the person providing the professional services and is free to give the report to other persons,

                    (iii)  premiums for

                            (A)  insurance that protects the credit grantor against default on a high-ratio mortgage,

                            (B)  casualty insurance on the subject matter of a security interest if the borrower is a beneficiary of the insurance and the insured amount is the full insurable value of the subject matter, and

                            (C)  insurance provided or paid for by the credit grantor with respect to a credit agreement if the insurance is optional, and

                    (iv)  an application fee for insurance referred to in clause (iii)(A);

             (g)  service provided or to be provided by the credit grantor to maintain a tax account on a high-ratio mortgage, expressed in the amount of a reasonable fee for that service, whether the tax account is required with respect to the credit agreement or is requested by the borrower; and

             (h)  anything designated under the regulations as value received by the borrower for the purpose of this subsection.

             (3)  Notwithstanding subsection (2), the following do not constitute value received or to be received by a borrower with respect to a credit agreement unless they relate to an optional service, expense, service or thing under paragraph (2)(f) or (g):

             (a)  money paid or to be paid, an expense incurred or to be incurred or anything done or to be done by the credit grantor for the purpose of arranging, documenting, securing, administering or renewing the credit agreement;

             (b)  insurance provided or paid for or to be provided or paid for by the credit grantor with respect to the credit agreement; and

             (c)  another thing that may be prescribed by regulation for the purpose of this subsection.

             (4)  The following constitutes value given or to be given by a borrower with respect to a credit agreement:

             (a)  money transferred or to be transferred from the borrower to the credit grantor with respect to the credit agreement;

             (b)  money transferred or to be transferred from the borrower to a person other than the credit grantor with respect to a charge for services that the credit grantor requires the borrower to obtain or pay for with respect to the credit agreement, unless the charge

                      (i)  is for an expense to which paragraph (2)(f) or (h) would have applied if the expense had been incurred initially by the credit grantor and then charged directly to the borrower,

                     (ii)  is for services provided by a lawyer chosen by the borrower, or

                    (iii)  is for charges for shares in a credit union that a borrower shall buy as a condition of entering into a credit agreement with the credit union; and

             (c)  another thing that may be prescribed by regulation for the purpose of this subsection.

Division 1
Application

Application

      46. (1) This Part applies to a

             (a)  credit agreement where

                      (i)  the borrower is an individual who enters into a credit agreement for primarily personal, family or household purpose, and

                     (ii)  either

                            (A)  the credit grantor enters into the agreement in the ordinary course of business, or

                            (B)  the credit agreement is arranged by a loan broker; and

             (b)  borrower, credit agreement, credit grantor or loan broker or a class of borrowers, credit agreements, credit grantors or loan brokers prescribed in the regulations.

             (2)  For the purpose of subparagraph (1)(a)(i), a credit grantor is entitled to rely on a statement in a credit agreement or other document regarding the purpose for which a borrower enters into a credit agreement, if the statement is signed by the borrower and the credit grantor believes in good faith that the statement is true.

             (3)  Notwithstanding subsection (1), this Part does not apply to

             (a)  a credit sale where all of the following occur:

                      (i)  the credit sale anticipates a single payment in the full amount for the product within a certain period after a written invoice or statement of account is delivered to the buyer,

                     (ii)  the credit sale is unconditionally interest-free during the payment period referred to in subparagraph (i),

                    (iii)  the credit sale is unsecured, apart from a lien on the product that may arise by operation of law,

                    (iv)  the credit sale is not assigned in the ordinary course of the credit grantor’s business otherwise than as security, and

                     (v)  the credit sale does not provide for non-interest finance charges; or

             (b)  a borrower, credit agreement, credit grantor or loan broker, or a class of borrowers, credit agreements, credit grantors or loan brokers, exempted under the regulations.

Delivery of disclosure statements

      47. (1) A credit grantor who has entered into or is negotiating to enter into a credit agreement with an individual who is the borrower under that agreement shall deliver to the borrower a disclosure statement with respect to that credit agreement before the earlier of the date on which the borrower

             (a)  enters into the credit agreement; or

             (b)  makes a payment in connection with the credit agreement.

             (2)  Notwithstanding subsection (1), a credit grantor who has entered into or who is negotiating to enter into a credit agreement to provide a mortgage loan to an individual who is the borrower under that agreement shall deliver a disclosure statement with respect to that credit agreement to the borrower in accordance with the regulations.

Disclosure

      48. (1) A credit grantor who is required to provide a disclosure statement or a statement of account under this Part shall ensure that the statement

             (a)  is in writing or another form that is consented to, in writing by the borrower, and the credit grantor shall retain that statement and consent as a record for future use;

             (b)  contains the information required under this Part; and

             (c)  expresses that information clearly, concisely, in a logical order and in a manner that is likely to bring the information to the borrower’s attention.

             (2)  A disclosure statement or a statement of account may be a separate document or part of another document provided to the borrower.

             (3)  Information disclosed under this Part whether in a disclosure statement, advertisement or otherwise may be based on an estimate or assumption if the

             (a)  disclosure depends on information that is not ascertainable by the credit grantor at the time of the disclosure; and

             (b)  estimate or assumption is reasonable and is clearly identified in the document effecting the disclosure as an estimate or assumption.

             (4)  Where an advertisement is published and information is disclosed in that advertisement that, under this Part, requires other information to be included in that advertisement, the credit grantor who publishes or on whose behalf the advertisement is published shall disclose the information in the manner required by regulation.

             (5)  Where information in a disclosure statement is inconsistent with information or a provision set out in the credit agreement, the credit agreement is presumed to incorporate the information or provision that is more favourable to the borrower, unless it is proven that the less favourable information or provision reflects the borrower’s actual understanding of the provisions of the agreement.

Delivery

      49. (1) Where there is more than one borrower under a credit agreement, a disclosure statement or other document that is required to be delivered to the borrowers may be delivered to one of the borrowers, and it is unnecessary to deliver a separate copy to each borrower.

             (2)  A document sent by ordinary mail to a borrower at the mailing address provided by the borrower to the credit grantor shall be considered, in the absence of evidence to the contrary, to have been delivered to the borrower 7 days after it was sent.

Division 2
Rights and Obligations

Insurer

      50. (1) A borrower who is required by a credit grantor to purchase insurance may purchase it from an insurer authorized to provide that type of insurance in the province but the credit grantor may, on reasonable grounds, reserve the right to disapprove an insurer selected by the borrower.

             (2)  A credit grantor who offers to provide or to arrange insurance referred to in subsection (1) shall, at the time of that offer, clearly disclose to the borrower in writing that the borrower may, in accordance with subsection (1), purchase the required insurance through an insurance agent and insurer of the borrower’s choice.

Cancellation of optional services

      51. (1) A borrower may cancel an optional service of a continuing nature that is provided by the credit grantor or an associate of the credit grantor by giving 30 or more days notice or a shorter period of notice where that shorter notice is provided for by the agreement under which the service is provided.

             (2)  A borrower who cancels an optional service under subsection (1) is

             (a)  not liable for charges relating to a portion of the service that has not been provided at the time of the effective date of the cancellation; and

             (b)  entitled to a refund of an amount already paid for those charges.

Prepayment of credit

      52. (1) This section does not apply to mortgage loans.

             (2)  A borrower is entitled to prepay the full outstanding balance owing under a credit agreement without a prepayment charge or penalty.

             (3)  Where a prepayment under subsection (2) is made with respect to a credit agreement for fixed credit, the credit grantor shall refund or credit to the borrower the portion of non-interest charges paid by the borrower or added to the outstanding balance as prescribed by regulation.

             (4)  A borrower is entitled, on a scheduled payment date or at least monthly, to prepay less than the full outstanding balance owing under a credit agreement for fixed credit, without a prepayment charge or penalty, but, in that event, is not entitled to a refund or credit of non-interest finance charges.

Default charges

      53. A credit agreement shall not impose default charges other than reasonable charges

             (a)  with respect to legal costs incurred in collecting or attempting to collect payment;

             (b)  with respect to costs, including legal costs, incurred in realising a security interest or protecting the subject matter of a security interest after default; and

             (c)  that reflect costs incurred by the credit grantor because a cheque or other payment instrument given by the borrower to the credit grantor was dishonoured.

Invitation to defer payment and acceleration clause

      54. (1) Where a credit grantor invites a borrower to defer making a payment that would otherwise be due under a credit agreement, the credit grantor shall, in that invitation, clearly disclose whether or not interest will accrue on the unpaid amount during the period for which the payment is deferred.

             (2)  Where an invitation referred to in subsection (1) does not disclose whether or not interest will accrue on the unpaid amount during the period for which payment is deferred, the credit grantor shall be considered to have waived the interest that would otherwise accrue during that period.

             (3)  Notwithstanding anything in a credit agreement, the whole or part of the outstanding balance does not become payable or otherwise accelerated, and an interest rate made specially applicable to the outstanding balance does not become effective in accordance with the acceleration clause, until written notice of the default or other event

             (a)  is served personally on the borrower; or

             (b)  is sent by registered mail to the borrower at the borrower’s latest address as shown on the records of the credit grantor.

             (4)  Notwithstanding subsection (3), if the credit grantor sends a notice under paragraph (3)(b), the whole or part of the outstanding balance does not become payable or otherwise accelerated, and an interest rate made specially applicable to the outstanding balance does not become effective until 10 days after the date the notice was sent to the borrower.

             (5)  In this section, "acceleration clause" means a clause in a credit agreement that provides that on default by the borrower or on the occurrence of another event, and whether or not at the option of the credit grantor, the whole or a part of the outstanding balance becomes immediately payable or is otherwise accelerated.

Non-business credit grantors

      55. Where a loan broker secures for a borrower an extension of credit from a credit grantor who does not provide credit in the ordinary course of carrying on business,

             (a)  the provisions of this Part and the regulations that impose a duty on a credit grantor shall be read as imposing that duty on the loan broker rather than on the credit grantor; and

             (b)  where the borrower pays or is required to pay a brokerage fee, the loan broker shall ensure that the initial disclosure statement for the credit agreement

                      (i)  discloses the amount of the brokerage fee, and

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

Business credit grantors

      56. (1) Where a loan broker secures for a borrower an extension of credit from a credit grantor who does provide credit in the ordinary course of carrying on business,

             (a)  if the credit grantor deducts a brokerage fee from the value received or to be received by the borrower in accordance with subsections 45(2) and (3), the credit grantor shall ensure that the initial disclosure statement for the credit agreement

                      (i)  discloses the amount of the brokerage fee, and

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

             (b)  if the loan broker takes a loan application from the borrower and forwards it to the credit grantor, the loan broker shall give to the borrower

                      (i)  a disclosure statement containing the information referred to in paragraph (a), and

                     (ii)  other information that, under this Part, is required to be disclosed in the initial disclosure statement for the credit agreement.

             (2)  Where a loan broker gives a borrower a disclosure statement under paragraph (1)(b), the credit grantor may

             (a)  adopt that disclosure statement as its own, in which case the credit grantor is jointly and individually liable with the loan broker for the content of that statement; or

             (b)  elect to deliver to the borrower a separate disclosure statement containing the information that is required to be disclosed under this Part.

Division 3
Fixed Credit

Application

      57. (1) This Division applies only to credit agreements that extend fixed credit.

             (2)  Where this Division applies to a credit sale, the credit grantor shall ensure that the credit agreement is a scheduled payments credit agreement.

Advertising

      58. (1) This section applies only to advertisements that

             (a)  offer credit to which this Division applies; and

             (b)  state the interest rate or amount of a payment.

             (2)  A credit grantor shall ensure that every advertisement to which this section applies that is published by or on behalf of the credit grantor discloses the APR and the term with respect to the proposed credit agreement.

             (3)  A credit grantor to which subsection (2) applies shall ensure that if the advertisement is for a credit sale of a specifically identified product,

             (a)  the advertisement discloses the cash price of that product; or

             (b)  in connection with which a non-interest finance charge is to be payable, the advertisement discloses the

                      (i)  cash price of the product, and

                     (ii)  total cost of credit.

Advertising interest-free periods

      59. (1) An advertisement that states or implies that no interest is payable for a certain period with respect to a transaction shall disclose whether

             (a)  the transaction is unconditionally interest-free during the period; or

             (b)  interest accrues during the period but will be forgiven under certain conditions.

             (2)  Where interest accrues during a period but will be forgiven under certain conditions, the advertisement shall also disclose

             (a)  those conditions; and

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

             (3)  An advertisement to which subsection (1) applies that does not disclose the information required under paragraph (1)(b) and subsection (2) shall be considered to represent that the transaction is unconditionally interest-free during the relevant period.

Disclosure statements

      60. (1) A credit grantor who has entered into or who is negotiating to enter into a scheduled payments credit agreement shall ensure that the disclosure statements for that credit agreement disclose the information required by regulation.

             (2)  A credit grantor who has entered into or is negotiating to enter into a credit agreement that is not a scheduled payment credit agreement shall ensure that the disclosure statements for that credit agreement disclose the information required by regulation.

Interest change disclosure

      61. (1) In addition to the disclosure statement required under section 60, where the interest rate is a floating rate, the credit grantor shall, at least once every 12 months, deliver to the borrower a disclosure statement that contains the information required by regulation.

             (2)  In addition to the disclosure statement required under section 60, where the interest rate is not a floating rate but is subject to change, the credit grantor shall, within 30 days after the date on which the annual interest rate becomes one percent or more higher than the rate most recently disclosed to the borrower in writing, deliver to the borrower a disclosure statement that contains the following information:

             (a)  the date of the statement;

             (b)  the new annual interest rate and the date that the new annual interest rate takes effect; and

             (c)  the new amount, and timing, of payments to be made after the date referred to in paragraph (b).

Increases in outstanding principal

      62. (1) In addition to another document that the credit grantor is required to deliver to the borrower, the credit grantor shall deliver to the borrower a notice, in writing, in accordance with subsection (2) where,

             (a)  the outstanding principal on a scheduled payments credit agreement increases, as a result of

                      (i)  the compounding of interest on a missed or late payment, or

                     (ii)  the imposition of a default charge; and

             (b)  as a result of the increases in outstanding principal, the total amount of the payments the borrower is scheduled to make over a payment period does not cover the interest that will accrue during that payment period.

             (2)  A notice under subsection (1) shall

             (a)  be delivered to the borrower not more than 30 days after the most recently missed or late payment or default payment imposed; and

             (b)  specify

                      (i)  that the outstanding principal has increased and why,

                     (ii)  that, because of the increase in principal, the subsequent scheduled payments will not cover the interest that will accrue in each payment period, and

                    (iii)  what the total outstanding balance will be at the end of the term if the amount of subsequent scheduled payments is not adjusted.

Amendments

      63. (1) Where a credit agreement is amended, the credit grantor shall deliver a supplementary disclosure statement to the borrower not later than 30 days after the amendment is made.

             (2)  The credit grantor shall ensure that a supplementary disclosure statement sets out the changed information but that statement need not repeat information that is unchanged since the previous disclosure statement.

             (3)  This section does not apply to changes effected by a renewal to which section 64 applies.

Mortgage renewal disclosure

      64. (1) Where the amortization period for a mortgage loan under a scheduled payments credit agreement is longer than the term of the mortgage, the credit grantor shall notify the borrower, in writing, not fewer than 21 days before the end of the term, whether or not the credit grantor is willing to renew the mortgage for a further term.

             (2)  A credit grantor who is willing to renew a mortgage shall include, with the notice referred to in subsection (1), a disclosure statement, based upon the assumption that the borrower will make payments that are due under the current mortgage that includes the information required by regulation.

             (3)  Where a credit grantor fails to provide the borrower with a renewal statement for a mortgage loan 21 or more days before the effective date of the renewal agreement, the borrower’s rights under the original loan agreement continue to apply until 21 days after the renewal statement is provided to the borrower.

             (4)  Subsection (3) does not apply where

             (a)  a credit grantor delivers to a borrower a disclosure statement with respect to the renewed mortgage not fewer than 21 days before the effective date of the renewed mortgage; and

             (b)  that statement does not reflect the terms of the renewed mortgage by reason only that the

                      (i)  outstanding balance of the mortgage loan on the effective date of the renewed mortgage differs from that stated in the disclosure statement because of one or more missed, late, early or extra payments,

                     (ii)  interest rate under the renewed mortgage is lower than the interest rate stated in the disclosure statement, or

                    (iii)  amortization period or frequency of payments under the renewed mortgage differs from what was stated in the disclosure statement.

             (5)  Where subsection (4) applies, the credit grantor shall, not more than 30 days after the effective date of the renewed mortgage, deliver to the borrower a revised disclosure statement that reflects the terms of the renewed mortgage.

Division 4
Open Credit

Application

      65. This Division applies to credit agreements that extend open credit.

Advertising

      66. A credit grantor including a credit grantor associated with a credit card shall ensure that an advertisement that is published by or on behalf of the credit grantor shall disclose

             (a)  the current annual interest rate; and

             (b)  initial or periodic non-interest finance charges.

Interest free periods

      67. (1) An advertisement that states or implies that no interest is payable for a certain period with respect to a transaction under a credit agreement shall disclose whether

             (a)  the transaction is unconditionally interest free during the period; or

             (b)  interest accrues during the period but will be forgiven under certain conditions.

             (2)  Where interest accrues during the period but will be forgiven under certain conditions, the advertisement shall also disclose

             (a)  those conditions; and

             (b)  the annual interest rate for the period, assuming those conditions are not met.

             (3)  An advertisement to which subsection (1) applies that does not disclose the information required under paragraph (1)(b) and subsection (2) shall be considered to represent that the transaction is unconditionally interest free during the relevant period.

Open credit disclosure

      68. A credit grantor who has entered into or who is negotiating to enter into a credit agreement shall ensure that the initial disclosure statement for that credit agreement discloses the information required by regulation.

Statements of account

      69. (1) A credit grantor shall, at least monthly, deliver to the borrower a statement of account containing the

             (a)  period covered by the statement and that period shall run from the date of the first advance or, where a statement has been delivered under this section, from the date of the statement of account most recently delivered to the borrower;

             (b)  outstanding balance at the beginning of the statement period;

             (c)  posting date, description and amount of each transaction or charge added to the outstanding balance during the statement period;

             (d)  posting date and amount of each payment or credit subtracted from the outstanding balance during the statement period;

             (e)  annual interest rate or rates in effect during the statement period or a part of the period;

              (f)  total of all amounts added to the outstanding balance during the statement period;

             (g)  total of all amounts subtracted from the outstanding balance during the statement period;

             (h)  outstanding balance at the end of the statement period;

              (i)  credit limit;

              (j)  minimum payment;

             (k)  due date for payment;

              (l)  amount that the borrower shall pay on or before the due date in order to take advantage of a grace period;

            (m)  borrower’s rights and obligations regarding the correction of billing errors; and

             (n)  telephone number required under subsection (3).

             (2)  Notwithstanding subsection (1), a credit grantor is not required to send a statement of account to a borrower at the end of a period during which there has been no advance of payment where

             (a)  there is no outstanding balance at the end of the period; or

             (b)  the borrower is in default and the credit grantor has

                      (i)  demanded payment of the outstanding balance, and

                     (ii)  given notice to the borrower that the borrower’s privileges to obtain advances under the agreement have been cancelled or suspended due to the default.

             (3)  A credit grantor shall provide a telephone number that the borrower can use to obtain information about the borrower’s account during the credit grantor’s ordinary business hours and without incurring charges for the call, and the credit grantor shall ensure that that information is available at that number during those hours.

Transaction description

      70. A transaction is sufficiently described if the description in the statement of account, along with a transaction record included with the statement of account or made available to the borrower at the time of the transaction, can reasonably be expected to enable the borrower to verify the transaction.

Credit card by application

      71. (1) A credit card issuer shall not issue a credit card to an individual who has not applied for the card.

             (2)  Subsection (1) does not apply to a credit card issued to an individual to replace or renew a card that was applied for by and issued to that individual.

Application for credit card

      72. (1) A credit grantor who has entered into or who is negotiating to enter into a credit agreement for a credit card shall ensure that the application form for that credit card discloses the information required by regulation.

             (2)  Notwithstanding subsection (1), instead of disclosing the information required under that subsection, the application form may disclose a telephone number that the cardholder can use to obtain that information during the credit card issuer’s ordinary business hours and without incurring charges for the call, and the credit card issuer shall ensure that that information is available at that number during those hours.

             (3)  Notwithstanding subsection (2), where an individual applies for a credit card in person, by telephone or by electronic means, the credit card issuer shall disclose the information referred to in subsection (1) when the individual makes the application.

             (4)  An individual who applies for a credit card without signing an application form shall be considered, on using the credit card for the first time, to have entered into a credit agreement with respect to that card in the terms of the disclosure statement referred to in subsection (5).

             (5)  Nothing in this section relieves the credit card issuer from the requirement to deliver a disclosure statement in accordance with sections 54 and 73.

Additional credit card disclosure

      73. (1) In addition to the disclosure requirements of section 69, a credit card issuer shall disclose, in the initial disclosure statement for a credit card, the card holder’s maximum liability for unauthorised use of the credit card if it is lost or stolen.

             (2)  The credit card issuer shall notify the cardholder of a change in the information disclosed in a disclosure statement,

             (a)  in the case of a change to the following information, in the next statement of account following the change in information or in a document that is given to the cardholder with the next statement of account:

                      (i)  a change in the credit limit,

                     (ii)  a decrease in the interest rate or the amount of other charges,

                    (iii)  an increase in the length of an interest free period or grace period, and

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

             (b)  in another case, at least 30 days before the date that the change takes effect.

Limitation of liability

      74. (1) A cardholder who has, orally or in writing, reported a lost or stolen credit card, or the unauthorised use of the credit card or credit card number, to the credit card issuer is not liable for a debt incurred through the use of that card after the credit card issuer receives the report.

             (2)  The maximum total liability of a cardholder arising from unauthorised use of a lost or stolen credit card before the issuer receives notice under subsection (1) is the lesser of

             (a)  $50; or

             (b)  the maximum amount set by the credit agreement with respect to the credit card.

             (3)  Subsection (2) does not apply to the use of a credit card in conjunction with a personal identification number at a device commonly referred to as an automated teller machine.

Division 5
Leases of Goods

Application

      75. This Division applies only to a lease that is

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

             (b)  for an indefinite term or is renewed automatically until one of the parties takes positive steps to terminate it; or

             (c)  a residual obligation lease.

Advertising requirements

      76. A lessor shall ensure that every advertisement that is published by or on behalf of the lessor and that gives specific information about the cost of a lease discloses the following information:

             (a)  that the transaction is a lease;

             (b)  the term of the lease;

             (c)  the nature and amounts of payments that are payable by the lessee on or before the beginning of the term;

             (d)  the amount, timing and number of the periodic payments;

             (e)  the nature and amount of other payments that are payable by a lessee in the ordinary course of events;

              (f)  the lease APR; and

             (g)  where required under this or another Part or another Act, information regarding extra charges based on the usage of the leased goods.

Disclosure

      77. (1) A lessor who has entered into or who is negotiating to enter into a lease shall ensure that the initial disclosure statement for that lease discloses the information required by regulation.

             (2)  The lessor shall deliver the initial disclosure statement to the lessee before the lessee enters into the lease or makes a payment with respect to the lease.

Maximum liability for residual obligation lease

      78. Notwithstanding paragraph 45(1)(ss), the maximum liability of a lessee at the end of the term of a residual obligation lease after returning the leased goods to the lessor is the sum of the following amounts as calculated in accordance with the regulations:

             (a)  the estimated residual cash payment; and

             (b)  the estimated residual value less the realizable value of the leased goods.

Division 6
Compliance

Interpretation

      79. For the purpose of this Division, a credit grantor shall be considered to have a compliance procedure where that credit grantor

             (a)  requires its employees and agents to follow procedures or has implemented automated procedures designed to ensure that borrowers receive the information to which they are entitled at the time and in the form required under this Part; and

             (b)  monitors the effectiveness of the measures referred to in paragraph (a) and promptly remedies deficiencies in their design or implementation.

Recovery of overpayments and compensation

      80. (1) Notwithstanding an agreement to the contrary, where a borrower makes a payment to a credit grantor that the credit grantor is not entitled to receive, the credit grantor shall refund the payment to the borrower or, where the parties agree, credit the payment against the outstanding balance under the credit agreement as of the time the payment was made.

             (2)  A credit grantor who contravenes this Part shall compensate a borrower for a loss the borrower suffers because of the contravention and the compensation to which the borrower is entitled may be set off against the outstanding balance of the credit agreement or may be recovered from the credit grantor in an action in a court.

Remedies

      81. (1) A contravention of this Part is an excusable error where

             (a)  the credit grantor had a compliance procedure to prevent or identify a contravention when the contravention occurred;

             (b)  the contravention was accidental or the result of an employee’s or agent’s failure to follow the compliance procedure; and

             (c)  on discovering the contravention, the credit grantor promptly took steps to minimize its effect on an affected borrower.

             (2)  Where a credit grantor contravenes this Part in relation to a credit agreement and the contravention is not an excusable error, the borrower is entitled, in addition to another remedy to which the borrower may be entitled, to recover the damages provided for under this section from the credit grantor in an action in a court of competent jurisdiction.

             (3)  The damages for a contravention of this Part are the lesser of $500 and 5% of whichever of the following is applicable:

             (a)  for a credit agreement for fixed credit, the maximum outstanding balance;

             (b)  for a lease, the capitalized amount; and

             (c)  for a credit agreement for open credit,

                      (i)  with a specified credit limit, the credit limit, and

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

             (4)  Where a contravention of this Part relates to a statement of account for open credit, the damages are equal to the interest and non-interest finance charges for the period covered by the statement of account.

             (5)  A court may reduce the damages to which a borrower would otherwise be entitled under this section if the court is satisfied, in view of all the circumstances, including an undertaking as to future compliance that is given by the credit grantor, that it would be appropriate to do so.

             (6)  The damages to which a borrower is entitled may be set off against an amount otherwise payable by the borrower to the credit grantor.

             (7)  A remedy under this Part is in addition to and does not derogate from another legal, equitable or statutory remedy.

             (8)  A court may award exemplary damages to a borrower against a person who has deliberately contravened this Part or if the court considers that the conduct of that person justifies an award of exemplary damages.

Assignee

      82. (1) Except as otherwise provided in this section, a borrower may assert against a person to whom the rights of a credit grantor have been assigned, rights or remedies under section 49, 80 or 81 that the borrower could have asserted against the original credit grantor.

             (2)  The assignee’s maximum liability under a section referred to in subsection (1) is limited to the outstanding balance at the time of the assignment or the proportion of the outstanding balance that is assigned to the assignee.

             (3)  An assignee does not incur liability under this section for a credit grantor’s contravention of this Part unless

             (a)  the assignee knew of the contravention before the borrower received notice of the assignment;

             (b)  the contravention consists of the credit grantor’s failure to deliver a disclosure statement to the borrower; or

             (c)  the contravention is apparent on the face of the disclosure statement or is apparent by comparing the disclosure statement with the written terms of the credit agreement.

             (4)  An assignee is entitled to rely in good faith on a borrower’s signed acknowledgement of receipt of a disclosure statement.

Division 7
Regulations

Regulations

      83. (1) The Lieutenant-Governor in Council may make regulations for the purpose of this Part

             (a)  defining a word for the purpose of this Part where that word is not defined in this Part;

             (b)  respecting the calculation of

                      (i)  APR,

                     (ii)  lease APR,

                    (iii)  the penalty payable for the early termination of a lease, and

                    (iv)  another matter that under this Part is to be determined by calculation;

             (c)  respecting the criteria to be used in determining what constitutes an index rate;

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

             (e)  prescribing credit agreements or classes of credit agreements to which this Part applies or does not apply;

              (f)  respecting the information that shall be disclosed in a disclosure statement;

             (g)  respecting the form and manner in which information required to be disclosed under this Part is to be disclosed;

             (h)  defining for the purpose of advertisements, what constitutes a representative transaction and prescribing information that shall be disclosed in an advertisement that refers to one or more representative transactions;

              (i)  respecting high ratio mortgages and realizable value;

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

             (k)  respecting the manner in which the estimated residual cash payment and the realizable value of leased goods is to be calculated;

              (l)  respecting the determination that a thing received or to be received by a borrower as value received or to be received or as not constituting value received or to be received;

            (m)  designating anything given or to be given by a borrower as value given or to be given;

             (n)  prescribing expenses for the purpose of this Part;

             (o)  respecting the time by which a credit grantor shall disclose the cost of borrowing to the borrower and the terms and conditions under which a time period may be waived;

             (p)  prescribing the portion and manner of refunding and crediting non-interest finance charges;

             (q)  prescribing information respecting extra charges for the purpose of paragraph 76(g);

              (r)  respecting the form, contents and manner in which information and records may be disclosed or delivered under this Part and, for a prescribed manner of delivery, prescribing the time on which a record delivered in that manner is considered to be received by the person to whom it was delivered;

             (s)  requiring credit grantors and loan brokers or one or more classes of them to retain one or more records required under this Part for a specified period and prescribing when, how and to whom those records are to be made available for examination, extracts and copying;

              (t)  exempting, generally or in specified circumstances, certain classes of persons from all or a Division of this Part and the regulations;

             (u)  respecting designated expenses;

             (v)  prescribing the application or non application of this Part for the purpose of paragraphs 46(1)(b) and 46(3)(b);

            (w)  respecting the waiver or variation of time periods by agreement or otherwise; and

             (x)  generally, to give effect to the purpose of this Part.

             (2)  Regulations made under this section may be made with retroactive effect.

PART VIII
LICENCES

Definitions

      84. In this Part

             (a)  "credit reporting agency" means credit reporting agency as defined in paragraph 36(b); and

             (b)  "direct seller" means

                      (i)  a supplier who enters into a direct sales contract, solicits consumers to enter into a direct sales contract, or both, and includes a salesperson of a supplier, and

                     (ii)  a person, including an officer and a director, who performs services related to the management of the business of a supplier referred to in subparagraph (i).

Licence required

      85. (1) A person shall not carry on business as a direct seller unless he or she obtains a licence from the director.

             (2)  A person shall not carry on business as a credit reporting agency unless he or she obtains a licence from the director.

             (3)  An application for a licence under subsection (1) or (2) shall be in the form required by the director and the applicant shall pay the fee set by the director.

             (4)  The director may require further information or material to be submitted within a specified time by an applicant for a licence.

             (5)  The director may require a statement made in support of an application for a licence under subsection (1) or (2) to be verified by an affidavit.

Denial of licence

      86. (1) An applicant for a licence to carry on the business of a direct seller is entitled to be granted the licence unless in the opinion of the director

             (a)  his or her record of past conduct is such that it would not be in the public interest to grant it; or

             (b)  he or she is an undischarged bankrupt.

             (2)  An applicant for a licence to carry on business as a credit reporting agency is entitled to be granted the licence unless, in the opinion of the director,

             (a)  his or her financial responsibility or record of past conduct is such that it would not be in the public interest for the licence to be granted; or

             (b)  where the applicant is a corporation, its financial responsibility or the record of past conduct of the corporation or its officers or directors is such that it would not be in the public interest for the licence to be granted.

Terms and conditions of a licence

      87. (1) A licence issued under section 86 is subject to the terms, conditions and restrictions that may be consented to by the applicant, imposed by the director, or prescribed by the regulations.

             (2)  The director may, by written notice to a licensee, add to, remove or alter the terms, conditions or restrictions to which the licence is subject.

             (3)  A licensee shall comply with the terms, conditions and restrictions to which his or her licence is subject.

Suspension and cancellation of a licence

      88. (1) The director may suspend or cancel the licence of a direct seller or a credit reporting agency upon a ground on which he or she might have refused to grant the licence under section 86 or where he or she is satisfied that the licensee

             (a)  has contravened this Part or the regulations or has failed to comply with the terms, conditions or restrictions to which the licence was subject;

             (b)  has made a material misstatement in the application for a licence or in the information or material submitted to the registrar under subsection 85(4);

             (c)  has been guilty of misrepresentation, fraud, deceit or dishonesty;

             (d)  is not carrying on business in the province;

             (e)  being a corporation, has been dissolved or has been struck off the register under the Corporations Act;

              (f)  being a natural person, has died; or

             (g)  has become bankrupt.

             (2)  The registrar shall publish notice of the suspension or cancellation in the Gazette.

             (3)  Where the director suspends or cancels a licence, the holder of it shall immediately return it to the director.

             (4)  The director may reinstate a suspended or cancelled licence where he or she considers it appropriate to do so.

Production of licence

      89. A person licensed under this Part shall produce his or her licence for inspection when requested to do so by

             (a)  a person whom he or she has solicited as a direct seller; or

             (b)  by a person who is the subject of a credit report by a credit reporting agency.

Certificate of registrar

      90. A certificate signed by the director stating that on a specified day

             (a)  a person was or was not licensed under this Part;

             (b)  a licence was issued to a director seller or credit reporting agency; or

             (c)  the licence of a direct seller or credit reporting agency was suspended, cancelled or reinstated,

is admissible in evidence as, in the absence of evidence to the contrary, proof of the facts stated in the certificate.

Address for service

      91. (1) An applicant for a licence shall state in the application an address for service in the province.

             (2)  A notice given under this Part or the regulations shall for all purposes be considered to be sufficiently served if delivered or sent by registered mail to the licensee at the address for service stated in his or her application for a licence, unless the licensee has notified the director in writing of a change of address for service under section 92, in which case that notice shall be sufficiently served if delivered or sent by registered mail to the licensee at the latest address for service of which the director has been notified.

             (3)  Where a notice referred to in subsection (2) is sent by registered mail, it is considered to be served on the day it is deposited in the post office by the sender of the notice.

Notice of change

      92. A licensee shall notify the director in writing of

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

             (b)  a change in partners, in the case of a partnership; and

             (c)  a change in directors, in the case of a corporation.

Annual return

      93. (1) A person licensed under this Part shall file an annual return with the director.

             (2)  An annual return filed under subsection (1) shall contain the information the director may require.

Registration continues

      94. A registration remains in effect subject to the filing of an annual report and payment of an annual fee until it is withdrawn by the registered person or is suspended or cancelled under this Act.

Exception to licensing requirement

      95. A person is considered not to be carrying on the business of direct selling and is not required to be licensed under this Act where he or she is

             (a)  a person selling newspapers;

             (b)  a person selling dairy or bakery products, firewood or coal, where that person or his or her employer resides or has a place of business in the province;

             (c)  a person selling motor vehicles, farm implements, feed grain, feed supplements, fertilizer or weed spray, where he or she resides or has a place of business in the province;

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

             (e)  a person selling goods or services on behalf of an organization or corporation having objects of a benevolent, religious, charitable, philanthropic, educational, agricultural, scientific, artistic, social, political, professional, fraternal, sororal, sporting, athletic or other useful nature and not formed for gain;

              (f)  a person in respect of business for the carrying on of which he or she is required to be licensed under the Securities Act, the Insurance Adjusters, Agents and Brokers Act, the Insurance Companies Act or the Real Estate Trading Act; or

             (g)  a person or one of a class of persons exempted from the application of this Part by the regulations.

Bonds

      96. (1) The director shall require an applicant for a licence as a direct seller to deliver to him or her within a specified time a bond to the Crown in the form and amount that he or she may prescribe.

             (2)  The director may require a salesperson to deliver to him or her within a specified time

             (a)  a bond to the Crown in the form and amount that he or she may prescribe; or

             (b)  a certificate of a surety company that a surety bond previously filed on behalf of the applicant is in force.

             (3)  A bond given under this Part shall be forfeited and the amount shall be recoverable from the person bound by the bond as a debt due the Crown where,

             (a)  a conviction of an offence under this Act or the regulations or of an offence involving fraud, theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code has been made by a court;

             (b)  a judgment based on a finding of fraud has been given; or

             (c)  a winding-up or receiving order has been made under the Bankruptcy and Insolvency Act (Canada) or the Winding-up and Restructuring Act (Canada),

against the person in respect of whose conduct the bond was conditioned, or, where that person is a partnership, a partner of that partnership, and the conviction, judgment or order has become final.

             (4)  In respect of every act and omission occurring during the term of a licence, every bond shall continue in force for a period of 2 years after the licence to which it relates expires or is cancelled.

             (5)  The minister may, with the prior approval of the Lieutenant-Governor in Council and upon those terms and conditions that he or she may prescribe, assign a bond forfeited under this Part or may pay over money recovered under a bond to

             (a)  a person who may become, in respect of a claim arising out of a direct sales contract, a judgment creditor of the person bonded;

             (b)  the Registrar of the Supreme Court in trust for a person referred to in paragraph (a); or

             (c)  a trustee, custodian, interim receiver, receiver or liquidator of a person referred to in paragraph (a),

and every assignment of a bond or payment over of money made by the minister under this section shall be done in accordance with an order of the Lieutenant-Governor in Council relating to that assignment.

             (6)  Where the Crown becomes a creditor of a person under this Part, the debt may be recovered by action or other proceeding in a court as a debt due the Crown.

             (7)  When a bond has been forfeited under subsection (3) by reason of a conviction or judgment referred to in paragraph (3)(a) or (b) and 2 years have elapsed since

             (a)  that conviction or judgment; or

             (b)  the seller in respect of whom the bond was furnished ceased to carry on business,

and the minister has not received notice in writing of a claim against the proceeds of the bond or of a portion of the bond which remains in the possession of the minister, the Lieutenant-Governor in Council may direct the minister to pay to a person who, upon forfeiture of the bond, made payments under the bond, the proceeds, less the amount of expenses that have been incurred in connection with an investigation or otherwise relating to that direct seller.

PART IX
INVESTIGATION
AND ENFORCEMENT

Investigations

      97. (1) The director or a person authorized by the director may, where it is reasonably necessary to determine compliance with this Act, enter a place and demand the production of and inspect the business books, documents, correspondence and records that the director or authorized person believes on reasonable grounds are in respect of the person about whom the investigation is being made.

             (2)  Where the director believes on reasonable grounds that a person has contravened this Act or regulations or where the director believes on reasonable grounds that a person, is or is about to contravene this Act, the director or person authorized by the director may with a warrant issued under subsection (3) at a reasonable time enter a place and may investigate, inquire into and examine the affairs in relation to the actions in respect of which the investigation is being made and into books, documents, correspondence and records in relation to it.

             (3)  A Provincial Court judge who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is in a place anything that there are reasonable grounds to believe will give evidence with respect to a contravention of this Act or the regulations may issue a warrant authorizing the director or person authorized by the director named in the warrant to enter and search that place and to make those inquiries and copies of books, documents, correspondence and records that are necessary, subject to the conditions that may be specified in the warrant.

             (4)  The owner or person in charge of the place referred to in this section and a person found there shall give the director or person authorized by the director reasonable help to enable that person to carry out his or her duties and functions under this section and shall provide the information that that person may reasonably require.

Proof of documents

      98. A copy made under section 97 and certified to be a true copy by the person making the investigation is admissible in evidence as proof of the original records.

Freezing orders

      99. (1) Where the director has begun an investigation under section 97 and has reasonable grounds to believe that it is advisable for the protection of consumers dealing with a supplier the director may, in writing

             (a)  direct a person who the director believes has or may have on deposit, under his or her control, or for safekeeping property of the supplier to hold that property in trust for a person appointed as an interim receiver, custodian, receiver or liquidator of the supplier;

             (b)  direct a person who the director believes is indebted to a person being investigated under section 97 to hold money that may be payable in satisfaction of the debt in trust for a person appointed as the interim receiver, custodian, receiver or liquidator of the supplier; and

             (c)  direct a supplier who is being investigated under section 97 to refrain from withdrawing property that he or she has or may have on deposit with a person

until the director makes a written revocation of the direction or consents in writing to the release of a particular item of property, or a judge directs a different disposition of the property.

             (2)  Subsection (1) does not apply where the supplier being investigated under section 97 files with the director a bond in a form and amount that is satisfactory to the director.

             (3)  A supplier or another person in receipt of a direction under subsection (1) may apply to a judge for an order to cancel or vary the direction and the judge may make an order where the judge finds

             (a)  that the direction was not necessary either in whole or in part for the protection of consumers dealing with the supplier; or

             (b)  that the interests of other persons are unduly prejudiced by the direction.

Receiving order

   100. The director may apply to a judge for the appointment of an interim receiver, custodian, receiver or liquidator to take possession of and hold property of the supplier who is the subject of a direction under section 99 upon those terms and conditions that the judge may order.

Compliance

   101. (1) Where the director has reason to believe that a person is contravening, is about to contravene or has contravened this Act or the regulations, the director may enter into a written undertaking of voluntary compliance with the supplier instead of entering into or continuing an investigation under section 97 or taking or continuing another proceeding under this Act.

             (2)  An undertaking of voluntary compliance may be in a form and contain those terms that the director may determine and may include:

             (a)  an undertaking to comply with this Act and the regulations;

             (b)  an agreement that the supplier will refrain from engaging in certain acts or practices;

             (c)  an agreement to compensate customers who have suffered damage or loss as a result of the acts or practices;

             (d)  an agreement that future consumer transactions engaged in by the supplier will be carried on in accordance with the terms of the agreement;

             (e)  an agreement to provide a bond in a form and amount that may be set out in the agreement; and

              (f)  an agreement on the form and content of records, contracts, advertisements or other documents respecting consumer transactions engaged in by the supplier and the maintenance of trust accounts held by the supplier.

             (3)  An undertaking of voluntary compliance may be varied or terminated by the director upon the request of the supplier.

             (4)  A supplier may apply to a judge after he or she enters into an undertaking of voluntary compliance for an order

             (a)  terminating an undertaking of voluntary compliance where the judge is satisfied that the person did not contravene the Act or the regulations; and

             (b)  varying the undertaking of voluntary compliance where the judge is satisfied that the variance is in the best interests of consumers.

             (5)  An undertaking of voluntary compliance that is terminated or varied under this section does not invalidate anything done under that undertaking of voluntary compliance before its termination or variance.

             (6)  The director shall maintain a public record of undertakings of voluntary compliances that have been entered into.

Compliance orders

   102. (1) After giving a person an opportunity to be heard, the director may order the person to comply with this Act and the regulations if satisfied that the person is contravening, is about to contravene or has contravened this Act or the regulations.

             (2)  A compliance order shall

             (a)  name the person in respect of whom the order is issued,

             (b)  describe the person's act or practice that is contravening, is about to contravene or has contravened this Act or the regulations,

             (c)  identify the section of this Act or the regulations that is being contravened, is about to be contravened or has been contravened,

             (d)  be dated and signed by the director, and

             (e)  inform the recipient that the director may file the compliance order with the Trial Division and that a filed order is considered to be an order of the Trial Division.

             (3)  In a compliance order, the director may order a person to stop engaging in or not engage in a specified act or practice and to comply with this Act and the regulations.

             (4)  The director may include one or more of the following orders in a compliance order:

             (a)  that a person reimburse money or return other property or thing received to a consumer or a class of consumers;

             (b)  that a person compensate other persons or a class of persons who have suffered loss or damage as a result of a contravention of this Act or the regulations;

             (c)  that a person take specified action to remedy an act or practice by which the person is contravening, is about to contravene or has contravened this Act or the regulations; and

             (d)  that a person reimburse to the director all or a portion of the actual costs of an inspection, including actual legal costs, incurred by the director for the inspection of that person in respect of the contravention referred to in the compliance order.

             (5)  The director shall serve a copy of the compliance order on the person named in the order.

             (6)  Where a compliance order is made against 2 or more persons, all the persons against whom the order is made are jointly and individually responsible for complying with the order and are jointly and individually liable for the payment of amounts the persons are required to pay under the order.

Director's actions

   103. (1) Where the director is of the opinion that a supplier

             (a)  has contravened this Act or the regulations; or

             (b)  has not complied with the terms of an undertaking of voluntary compliance,

the director may begin and maintain an action against the supplier in a court.

             (2)  In an action brought under subsection (1) the court may make an order and grant the relief it considers appropriate including relief for the class of consumers affected by the contravention of this Act or the regulations.

Actions on behalf of consumer

   104. (1) Upon the written request of a consumer and where the director is of the opinion that it is in the public interest, the director may

             (a)  start and maintain an action on behalf of a consumer;

             (b)  maintain an action that has been started by a consumer, including an appeal of that action; and

             (c)  defend an action on behalf of a consumer where it appears to the director that this Act or the regulations have been contravened.

             (2)  In an action taken under this section, the director shall begin and maintain the action in the name of and on behalf of the consumer and the director has the same right to control the course of the action as the consumer would have had in respect of the action, including the right to settle the action on behalf of the consumer.

             (3)  In an action taken under this section,

             (a)  money paid to the director, excluding costs awarded, shall be paid by the director to the consumer;

             (b)  money awarded against the consumer is recoverable from the consumer and is not recoverable from the director or the province; and

             (c)  the costs of the action as awarded by the court shall be paid to or paid by the director.

Interim injunction

   105. (1) Upon the starting of an action under section 103 or 104 the director or consumer may apply to the court for an interim injunction restraining the supplier from continuing an act or practice that is alleged to be in contravention of this Act or the regulations.

             (2)  The court may grant an injunction where it is satisfied that

             (a)  the continuation of the alleged act or practice may detrimentally affect consumers who deal with the supplier; and

             (b)  the applicant has established a presumptive case of a contravention of this Act or the regulations.

PART X
REGULATIONS

Regulations

   106. The minister may make regulations for the purpose of this Act except Part VII

             (a)  exempting classes of persons from the application of this Act or the regulations;

             (b)  governing applications for licences and prescribing terms and conditions of licences;

             (c)  requiring credit reporting agencies or a class of them to be bonded in the form and terms as prescribed, and providing for the forfeiture of bonds and the disposition of the proceeds;

             (d)  respecting the suspension or cancellation of licences;

             (e)  respecting the books, accounts and records to be kept by a person licensed under this Act;

              (f)  requiring a person licensed under this Act to make returns and provide information to the director;

             (g)  requiring the use by a person licensed under this Act of forms approved by the director and prohibiting the use by a licensee of forms not approved by the director;

             (h)  respecting cancellation rights provisions in direct sales contracts;

              (i)  prohibiting the use of certain kinds of information in consumer reports; and

              (j)  generally, to give effect to the purpose of this Act.

PART XI
APPEALS

Appeals

   107. (1) A person may appeal to a judge of the Trial Division

             (a)  where the director has refused to issue a licence to the person or to renew his or her licence;

             (b)  against a term or condition to which the person's licence is made subject;

             (c)  where his or her licence has been suspended or cancelled, against the suspension or cancellation; and

             (d)  where the person is dissatisfied with a decision, order or direction that the director has made affecting the person.

             (2)  A person appealing under this section shall give notice of the appeal to the director at the time the appeal is filed with the court.

             (3)  An appeal under this section shall be started not later than 30 days after the happening of the event giving rise to the appeal.

Evidence

   108. Where, in a prosecution under this Act or the regulations, it is alleged that the accused engaged in an activity when he or she was not registered or licensed or otherwise authorized under this Act or the regulations to do so, evidence of one transaction is, in the absence of evidence to the contrary, proof that the accused engaged in the activity.

PART XII
OFFENCE

Offences

   109. (1) A person who

             (a)  fails to comply with or otherwise contravenes this Act or a regulation made under this Act;

             (b)  fails to comply with an order of the director;

             (c)  fails to comply with an undertaking of voluntary compliance; or

             (d)  provides false or misleading information in an application, form, return, account, record or other document

is guilty of an offence and liable on summary conviction to a fine of

             (e)  in the case of a natural person, not more than $10,000 nor less than $500, or in default of or in addition to a fine, to imprisonment for a period not in excess of one year;

              (f)  in the case of a corporation, not more than $100,000 nor less than $5,000.

             (2)  Every day or part of a day that an offence continues constitutes a separate offence.

             (3)  A director or officer of a corporation who knowingly concurs in an offence committed by a corporation under this section is guilty of an offence and liable on summary conviction to a fine of not more than $10,000 nor less than $500 or in default of or in addition to a fine, to imprisonment for a period not in excess of one year.

             (4)  A prosecution under this section may be started within 2 years from the date on which the offence was alleged to have been committed.

PART XIII
CONSEQUENTIAL AMENDMENTS, REPEAL
AND COMMENCEMENT

Transitional

   110. (1) Part VII applies to

             (a)  credit agreements for fixed credit and leases that are entered into, renewed or amended on or after the date of coming into force of the Part; and

             (b)  credit agreements for open credit that are in existence or that are entered into, renewed or amended on or after the date of coming into force of the Part.

             (2)  The Mortgage Brokers Act applies to credit agreements for fixed credit and leases entered into before the coming into force of this Part.

RSNL1990 cM-18 and CNLR 1006/96 Amdt.

   111. (1) Section 8 of the Mortgage Brokers Act is repealed.

             (2)  Section 4 of the Mortgage Brokers Regulations, Consolidated Newfoundland and Labrador Regulation 1006/96, is repealed.

Acts Repealed

   112. The following Acts are repealed:

             (a)  Consumer Protection Act;

             (b)  Consumer Reporting Agencies Act;

             (c)  Cost of Consumer Credit Disclosure Act;

             (d)  Direct Sellers Act;

             (e)  Trade Practices Act;

              (f)  Unconscionable Transactions Relief Act; and

             (g)  Unsolicited Goods and Credit Cards Act.

Commencement

   113. This Act comes into force on December 1, 2009.