Second Session, 48th General Assembly
66 Elizabeth II, 2017
AN ACT TO AMEND THE PREPAID FUNERAL SERVICES ACT
Received and Read the First Time................................................................
HONOURABLE SHERRY GAMBIN-WALSH
Minister of Service
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Prepaid Funeral Services Act to create the position of Registrar of Prepaid Funeral Services and to change the person responsible for the administration and enforcement of the Act from the minister to the registrar.
AN ACT TO AMEND THE PREPAID FUNERAL SERVICES ACT
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. The Prepaid Funeral Services Act is amended by deleting the word "and" at the end of paragraph 2(l) and by adding immediately after that paragraph the following:
(l.1) "registrar" means the Registrar of Prepaid Funerals; and
2. The Act is amended by adding immediately after section 2 the following:
2.1 (1) The Lieutenant-Governor in Council shall appoint a Registrar of Prepaid Funerals to administer and enforce this Act and the regulations.
(2) The Lieutenant-Governor in Council may appoint a deputy registrar who shall, when the registrar is absent or unable to act, when the registrar considers it necessary to delegate his or her authority, or when the office of the registrar is vacant, perform the functions of and have all the powers and authority of the registrar.
3. Subsections 3(1) to (4) of the Act are repealed and the following substituted:
3. (1) A person may, in writing, apply to the registrar for and the registrar may issue to that person a licence to be a seller.
(2) A person applying under subsection (1) shall provide to the registrar
(a) copies of proposed prepaid funeral contracts;
(b) the required fee; and
(c) other records and documents that are required by regulation.
(3) The registrar may refuse to issue a licence to a person and may cancel the licence of a licensee where the registrar is of the opinion that a
(a) person has made a false or misleading statement in the application for a licence or in documents in support of that application; or
(b) person applying for a licence or a licensee cannot meet or no longer meets the requirements of this Act with respect to the assurance fund, a trust fund or other requirements under this Act.
(3.1) The registrar may attach to a licence those restrictions, limitations and conditions the registrar considers appropriate.
(4) Where the registrar is satisfied that a seller does not comply with this Act or is not able to carry out the obligations imposed upon the seller under this Act, he or she may order that seller to take the remedial action that is necessary to bring the licensee into compliance with this Act and for that purpose may direct that an auditor perform an audit and inspect the books, documents and other records of the seller that relate to prepaid funeral contracts.
4. Subsection 3.1(2) of the Act is repealed and the following substituted:
(2) Notwithstanding subsection (1), the registrar may issue a licence for a period of time the registrar considers appropriate.
5. (1) Subsection 5(3) of the Act is repealed and the following substituted:
(3) The minister shall direct the registrar, the association, or the board established under subsection (4) to be responsible for the financial management and administration of and disbursement of payments from the assurance fund in accordance with the regulations.
(2) Subsection 5(7) of the Act is repealed and the following substituted:
(7) The costs and expenses in administering the assurance fund may, in accordance with the regulations, be paid out of the assurance fund to
(a) the minister, where the registrar is administering the fund;
(b) the association, where it is administering the fund; or
(c) the board, where it is administering the fund.
(3) Subsection 5(9) of the Act is repealed and the following substituted:
(9) The registrar, association or board, whichever is directed by the minister to administer the fund, may borrow money for the purpose of deposit to the fund.
(9.1) Notwithstanding subsection (9), the registrar shall not borrow money for the purpose of deposit to the fund without the prior written approval of the minister.
6. Subsection 6(4) of the Act is repealed and the following substituted:
(4) A seller shall annually prepare and submit to the registrar a report on the prepaid funeral contracts entered into and the trust funds established under this section for the year immediately preceding that date.
7. Subsection 7(5) of the Act is repealed and the following substituted:
(5) A seller shall annually carry out an audit of the trust funds established by the seller under section 6 and provide to the registrar a copy of an audited statement of the prepaid funeral contracts, and the funds,
(a) collected with respect to those contracts during the preceding fiscal year;
(b) paid out from the trust accounts established under subsection 6(1) during the preceding fiscal year;
(c) contained in the trust accounts established under subsection 6(1); and
(d) payable to trust accounts established under subsection 6(1).
8. Section 11.1 of the Act is repealed and the following substituted:
Appointment of examiners and investigators
11.1 The registrar may appoint persons as examiners and investigators to conduct examinations and investigations under this Act.
9. (1) Subsection 12(1) of the Act is repealed and the following substituted:
12. (1) Where it is reasonably necessary to ensure compliance with this Act, a person appointed by the registrar under section 11.1, may, for the purpose of conducting an examination, at reasonable times enter the premises of a seller and
(a) require the production of books, records or other documents applicable to prepaid funeral contracts sold by that seller or its agent or salesperson and may examine those books, records or documents or remove them for the purpose of making copies of them;
(b) interview employees and agents of a seller to determine if the seller is complying with this Act; and
(c) inquire into all matters relating to prepaid funeral contracts, funeral goods and funeral services related to those contracts.
(2) Subsection 12(4) of the Act is repealed and the following substituted:
(4) The registrar may require the annual examination of a seller under this section or more frequent examinations where he or she considers it necessary.
10. Subsection 13(1) of the Act is repealed and the following substituted:
Search and seizure with warrant
13. (1) Where a person appointed by the registrar under section 11.1 believes on reasonable grounds that a person is contravening or has contravened this Act, the person may, with a warrant issued under subsection (2), enter those premises and seize anything that may provide evidence of the contravention.
11. Subsection 13.1(1) of the Act is repealed and the following substituted:
Powers of examiner or investigator
13.1 (1) A person appointed by the registrar under section 11.1 to conduct an examination or an investigation has the same power to summon and enforce the attendance of a person and to compel him or her to testify on oath or otherwise, and to summon and compel a person or company to produce documents and other things, that is vested in a judge of the Trial Division, and the refusal of the person to attend or to answer questions or of a person or company to produce documents or other things that are in his, her or its custody or possession makes the person or company liable to be committed for contempt by a judge of the Trial Division as if in breach of an order of that court.
12. Subsection 13.2(2) of the Act is repealed and the following substituted:
(2) An order referred to in subsection (1) shall require the document or data to be produced within the time, at the place and in the form specified and to be given to a person appointed by the registrar under section 11.1.
13. (1) Subsection 13.3(1) of the Act is repealed and the following substituted:
13.3 (1) Where the registrar considers it necessary for the administration of this Act, the registrar may direct a person, having on deposit or under his or her control or for safekeeping funds of a seller, to retain those funds and to hold them until the registrar in writing revokes the direction or consents to release a particular fund from the direction, or until a judge of the Trial Division orders otherwise.
(2) Subsections 13.3(3) and (4) of the Act are repealed and the following substituted:
(3) As soon as practicable, and not later than 7 days after a direction is issued under subsection (1), the registrar shall apply to a judge of the Trial Division to continue the direction or for another order that the judge considers appropriate.
(4) A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent immediately by means that the registrar may determine to all persons named in the direction.
14. Section 13.4 of the Act is repealed and the following substituted:
Protection of trust funds
13.4 (1) Where the registrar believes that the business of a seller is neglected to the prejudice of a person or that the interests of the clients of the seller are not being protected or that the seller has converted trust funds, the registrar may act as trustee or, by order, appoint a person to act as trustee to take possession of property or an undertaking in the possession of or under the control of the seller for the purpose of preserving, carrying on or winding up the business of the seller.
(2) The registrar shall deliver to the seller a copy of his or her decision to act as trustee or the order appointing a person to act as trustee under subsection (1).
(3) The registrar or a person appointed under subsection (1) shall be the trustee in respect of a trust property of the seller and shall in respect of that trust property take the place of a personal representative, committee or other representative of the seller.
(4) A seller may appeal to the Trial Division in accordance with the Rules of the Supreme Court, 1986, from the decision of the registrar to act as trustee or an order made by the registrar appointing a person as trustee within 30 days after the delivery of a copy of the decision or order to the seller.
(5) The registrar may, in an order appointing a person as trustee under subsection (1), make provision for the remuneration, disbursements and indemnification of the trustee out of that money or otherwise as the registrar may specify.
15. Section 16.1 of the Act is repealed and the following substituted:
16.1 A prosecution under this Act and the regulations shall not be started more than 2 years from the date the offence was discovered by the registrar.
16. The Act is amended by adding immediately after section 16.1 the following:
Immunity of registrar
16.2 An action or other proceeding for damages shall not be instituted against the registrar or any of his or her employees, agents or delegates for an act done in good faith in the performance of a duty or in the exercise or the intended exercise of a power under this Act or the regulations, or for a neglect or default in the performance or exercise in good faith of that duty or power.
17. (1) Subsection 17(1) of the Act is repealed and the following substituted:
17. (1) Notwithstanding that a seller entered into a prepaid funeral contract before the coming into force of this Act, that seller shall, not later than a time required by the regulations,
(a) provide to the registrar an audited statement and record of those prepaid funeral contracts entered into before the coming into force of this Act for which no funeral goods or funeral services have been provided; and
(b) pay into the trust account required under section 6 an amount of money determined in accordance with the amount of outstanding prepaid funeral contract liability of the seller immediately before the coming into force of this Act.
(2) Subsection 17(3) of the Act is repealed and the following substituted:
(3) Notwithstanding subsections (1) and (2), the registrar may, where, due to the extenuating circumstances of the seller, the registrar is of the opinion that payment into the trust account as required under section 6 and this section would cause unusual hardship to the seller, vary the amount of money to be paid into the trust account and extend the time required to make the payments into the trust account.
18. Nothing in this Act affects a licence issued, action taken or an appointment, direction or order made by the minister before the coming into force of this Act and the registrar may vary, enforce, suspend or otherwise deal with those licences, actions, appointments, directions and orders as though they were made, taken or issued by the registrar after the coming into force of this Act.