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1In this Act

“direct sales contract” means an agreement for the direct sale of goods or services;(contrat de démarchage)

“direct selling” means the house-to-house selling, offering for sale or soliciting of orders for the sale of goods or services;(démarchage)

“direct seller” means a person who, whether at the request of a householder or not, direct sells;(démarcheur)

“Minister” means the Minister of Justice and Consumer Affairs and includes any person designated by the Minister to act on the Minister’s behalf;(Ministre)

“purchaser” means a person who agrees to purchase goods or services under a direct sales contract;(acheteur)

“salesman” means a direct seller acting as an authorized agent of a vendor;(représentant)

“services” include(services)

(a) the application or installation of goods sold under a direct sales contract, and

(b) the performance of work, labour or services of any type;

“vendor” means a person who is the seller under a direct sales contract.(vendeur)

1967, c.8, s.1; 1968, c.25, s.1; 1978, c.D-11.2, s.17; 1981, c.20, s.1; 1988, c.58, s.1; 1997, c.23, s.1; 2006, c.16, s.52

Vendor deemed direct seller

1.1For the purposes of this Act, a vendor shall be deemed to be direct selling whether he is direct selling personally or through a salesman.

1981, c.20, s.2

Administration

2The Minister shall administer this Act and may designate persons to act on his behalf.

1967, c.8, s.2

Application of Act

3(1)This Act applies only to direct sales contracts concluded after June 1, 1968.

3(2)This Act does not apply to a direct sales contract

(a) solicited, negotiated or concluded at

(i) the direct seller’s, vendor’s or salesman’s normal business premises, or

(ii) a market-place, auction, trade fair, agricultural fair or exhibition;

(b) made between a manufacturer or distributor and a wholesaler in respect of goods that the wholesaler intends to resell in the course of his business;

(c) made between a manufacturer, distributor or wholesaler and a retailer in respect of goods that the retailer intends to resell in the course of his business;

(d) under which a retailer is the buyer of goods intended to be used in his business but not for resale;

(e) under which the original buyer is a corporation;

(f) solicited, negotiated and concluded without any dealings in person between the purchaser and the direct seller or between the purchaser and the vendor or salesman;

(g) under which the goods to be delivered consist only of food or food products in a perishable state at the time of delivery; or

(h) where the consideration to be provided by the purchaser is of a value of one hundred dollars or less.

3(3)This Act does not apply to a direct sales contract where the direct seller

(a) has not initiated the dealings with the purchaser other than through advertising to the public; and

(b) has resided or has had business premises in the Province for a period of one year immediately prior to entering into the contract, or, if the direct seller is a corporation or partnership that has not had business premises in the Province for the required period, all its shareholders or partners have resided in the Province for a period of one year immediately prior to the contract.

3(4)This Act does not apply to the direct selling of any of the following goods or services:

(a) newspapers published periodically at intervals not exceeding seven days;

(b) gasoline or motive fuel within the meaning of the Gasoline and Motive Fuel Tax Act;

(c) primary forest products;

(d) coal;

(e) fishing equipment;

(f) farm implements;

(g) feed grain;

(h) feed supplements;

(i) fertilizer;

(j) weed spray;

(k) nursery stock;

(l) treatment of feed, seed grain or growing crops;

(m) breeding, care or treatment of livestock;

(n) custom tilling, seeding or harvesting;

(o) any goods or services prescribed by regulation.

3(5)This Act does not apply to a direct sales contract entered into by any person in the course of business that he is authorized to carry on under the Real Estate Agents Act, the Insurance Act, the Securities Act, the Private Occupational Training Act or the Motor Vehicle Act.

1967, c.8, s.3; 1981, c.20, s.3; 1983, c.26, s.1; 1987, c.6, s.19; 1996, c.71, s.18; 1997, c.23, s.2; 2004, c.S-5.5, s.222

Licences

4(1)A person shall not direct sell goods or services in the Province unless

(a) Repealed: 1981, c.20, s.4

(b) he has obtained a licence in accordance with this section.

4(2)The Minister may issue a licence to a person authorizing him to act as a salesman or vendor upon that person making application therefor in accordance with section 5.

4(3)Every application for a licence as a salesman under subsection (2) shall be accompanied by a notice given by a licensed vendor stating that the applicant, if granted a salesman’s licence, is authorized to act as a salesman representing that vendor.

4(4)A salesman’s licence shall specify the vendor who has given notice under subsection (3) as the principal of the licensee.

4(5)A person licensed to act as a salesman under this Act

(a) shall not act

(i) as a direct seller except when he is a bona fide agent of a vendor, or

(ii) as a vendor; and

(b) shall act as a salesman only for the vendor specified in his salesman’s licence.

4(6)A person licensed to act as a vendor under this Act

(a) shall not act as a salesman of another vendor; and

(b) may act as a direct seller.

4(7)A person licensed under subsection (2) is subject to the terms, conditions and restrictions that may be prescribed for the licence by regulation.

4(8)The Minister may restrict a licence issued under subsection (2) to the sale of goods and services specified therein and the person receiving that licence shall sell only those goods and services so specified.

4(9)Repealed: 1988, c.58, s.3

1967, c.8, s.4; 1981, c.20, s.4; 1988, c.58, s.3

Licences

4.1(1)A licence issued to a vendor under subsection 4(2) expires on the last day of the twelfth month following the issuance of the licence.

4.1(2)Notwithstanding subsection (1), every licence issued to a vendor under subsection 4(2) at a time when such licence expired on the thirty-first day of December of the calendar year in which it was issued and which is valid immediately before the commencement of subsection (1) expires on the last day of the month in which the first licence was issued under this Act to that vendor that next follows December 31, 1989.

1988, c.58, s.4

Licences

4.2(1)A licence issued to a salesman of a vendor under subsection 4(2) expires on the day that the licence issued to the vendor for whom the salesman is authorized to act expires.

4.2(2)Every licence issued to a salesman of a vendor under subsection 4(2) at a time when such licence expired on the thirty-first day of December of the calendar year in which it was issued and which is valid immediately before the commencement of subsection (1) expires on the day that the licence issued to the vendor for whom the salesman is authorized to act expires.

1988, c.58, s.4

Licences

5(1)A person may apply in writing to the Minister for a licence under this Act.

5(2)Fees for a licence under subsection (1) may be prescribed by regulation.

5(3)The Minister may require a person who makes an application under subsection (1) to verify by affidavit or by any other means any statement made by him in his application.

1967, c.8, s.5

Address for service

6(1)Every applicant under subsection 5(1) shall state in his application an address for service in the Province, and any notice given under this Act is deemed for all purposes to be served if delivered or sent by registered mail to the licensee at the address for service stated in his application, unless the licensee has notified the Minister in writing of a change of address for service under section 12.

6(2)Where a licensee has notified the Minister under section 12, any notice given under this Act is deemed to be served if delivered or sent by registered mail to the licensee at the latest address for service of which the Minister has been notified.

6(3)Except as otherwise provided in subsection 17.1(3), subsections (1) and (2) do not apply to a notice of cancellation given under section 17.1.

1967, c.8, s.6; 1997, c.23, s.3

Minister’s signature

6.1The signature of the Minister on a licence issued under this Act may be printed, stamped or otherwise mechanically reproduced on the licence.

1988, c.58, s.6

Salesman deemed acting for vendor

7A person who is the holder of a salesman’s licence under this Act is deemed to be authorized by the vendor specified in the licence, to act as the agent of that vendor for the purposes specified in the licence.

1967, c.8, s.7

Licence not transferable

8A licence issued under this Act is not transferable.

1967, c.8, s.8

Requirements for direct sales contracts

8.1A direct sales contract to which this Act applies shall be in writing and shall

(a) be signed by the vendor or a salesman of the vendor and by the purchaser,

(b) be in such format and shall contain such information as may be required by the regulations,

(c) include a statement of cancellation rights in accordance with the regulations, and

(d) meet such other requirements as may be specified in the regulations.

1997, c.23, s.4

Delivery of direct sales contract

9A person direct selling to a purchaser shall provide to the purchaser a copy of the direct sales contract in accordance with section 8.1 and the regulations at the time the contract is made.

1967, c.8, s.9; 1981, c.20, s.5; 1997, c.23, s.5

Repealed

10Repealed: 1997, c.23, s.6

1967, c.8, s.10; 1997, c.23, s.6

Assignment of direct sales contract

11Any vendor who assigns or subcontracts his obligation under a direct sales contract shall provide the purchaser with the name and address of the assignee or subcontractor in writing within three days of that assignment or subcontracting.

1967, c.8, s.11; 1981, c.20, s.6

Notice of change of address

12A person who holds a vendor’s licence under this Act shall notify the Minister in writing of any change in his address for service.

1967, c.8, s.12

List of names and addresses of parties to direct sales contract

12.1(1)The Minister may request a vendor to provide a list of the names and addresses of the persons with whom the vendor has entered into a direct sales contract.

12.1(2)Where the Minister makes a request under subsection (1), the Minister shall specify the period of time in respect of which the names and addresses are to be provided.

1988, c.58, s.9

List of names and addresses of parties to direct sales contract

12.2Every vendor shall, when requested to do so by the Minister under section 12.1, provide a list of the names and addresses of the persons with whom the vendor has entered into a direct sales contract.

1988, c.58, s.9

Cancellation of licence

13(1)Where a person who holds a licence under this Act

(a) violates any provision of this Act or fails to comply with any of the terms, conditions or restrictions to which his licence is subject,

(b) makes a material mis-statement in the application for his licence or in any information or material submitted by him to the Minister under section 14,

(c) is guilty of misrepresentation or fraud in the business in respect of which his licence was issued, or

(d) in the opinion of the Minister, has demonstrated his incompetency or untrustworthiness to carry on the business in respect of which his licence was granted,

the Minister may suspend or cancel that licence.

13(2)Where the licence of a vendor issued under this Act is suspended or cancelled, the licences of all salesmen of the vendor are also suspended or cancelled.

1967, c.8, s.13; 1983, c.26, s.5

Additional information from licensee

14The Minister may at any time require further information or material to be submitted within a specified time by an applicant for a licence or a licensee and may require verification by affidavit, or by any other means, of any information or material then or previously submitted.

1967, c.8, s.14

Delivery and forfeiture of bond

15(1)Prior to direct selling, every vendor, other than a direct seller referred to in paragraph 3(3)(b), shall deliver to the Minister a bond in the amount and form prescribed by regulation.

15(2)Notwithstanding that the Province has not suffered any loss or damage, every bond delivered to the Minister under subsection (1) shall be construed as being a penal bond and where any such bond is forfeited pursuant to subsection (3), the amount due and owing as a debt to the Province by the person bound thereby shall be determined as if the Province suffered such loss or damage as would entitle the Province to be indemnified to the maximum amount of liability prescribed by the bond.

15(3)A bond delivered under subsection (1) shall be forfeited where

(a) the person in respect of whose conduct the bond is conditioned or any representative, agent or salesman of that person has been convicted of

(i) an offence under this Act or the regulations, or

(ii) an offence involving fraud or theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, where that offence arises out of the business of direct selling;

(b) a judgment has been given in respect of a claim arising out of a direct sales contract against the person in respect of whose conduct the bond is conditioned or against any representative, agent or salesman of that person and that judgment has not been satisfied; or

(c) the person in respect of whose conduct the bond is conditioned commits an act of bankruptcy, whether or not proceedings have been taken under the Bankruptcy Act, chapter B-3 of the Revised Statutes of Canada, 1970;

and such conviction, judgment or order has become final by reason of lapse of time or of having been confirmed by the highest court to which any appeal may be taken.

15(4)Where a bond secured by the deposit of collateral security with the Minister is forfeited under subsection (3), the Minister may sell the collateral security at the current market price.

15(5)Subject to subsection (5.1), the Lieutenant-Governor in Council may order that any money recovered under a bond delivered under subsection (1), or realized from the sale of any collateral security be

(a) paid over

(i) in trust for those persons who may become judgment creditors of the person named in the bond in respect of claims arising out of direct sales contracts to the clerk of The Court of Queen’s Bench of New Brunswick for the judicial district in which those persons reside, or

(ii) to any trustee, custodian, interim receiver, receiver or liquidator of the person named in the bond,

in accordance with and upon the conditions set forth in the order; or

(b) paid over to such persons as may be deemed to be entitled thereto in respect of direct sales contracts concluded with the person named in the bond or any representative, agent or salesman of that person.

15(5.1)Where money has been recovered by the Minister under a bond delivered under subsection (1) or has been realized by him from the sale of any collateral security, the Minister may deduct from that money and retain the amount of the costs incurred by him in connection with the recovery or realization of the money and the distribution thereof, including the costs of any investigation of a claim made upon the money.

15(6)Any money not deducted by the Minister under subsection (5.1) nor paid over under the order of the Lieutenant-Governor in Council under subsection (5) shall be refunded to the surety or obligor under the bond.

1967, c.8, s.15; 1969, c.29, s.1; 1979, c.41, s.39; 1981, c.20, s.7; 1983, c.26, s.6, 7; 1984, c.22, s.1

Liability under bond

15.1A bond given under this Act shall be deemed to be in effect for a period of two years following the date on which the bond would otherwise terminate by lapse, expiry or cancellation, but liability under the bond is limited to acts or omissions prior to that date of the person in respect of whose conduct the bond is conditioned or any representative, agent or salesman of that person; and a clause to this effect shall be deemed to be inserted in every bond given for the purposes of this Act.

1983, c.26, s.8

Appeal

16(1)Any person may appeal a decision made under section 4, 13, 15 or 19.1 to a judge of The Court of Queen’s Bench of New Brunswick within thirty days of the date of the decision.

16(2)An appeal under subsection (1) shall be by notice of motion and a copy of the notice of motion of appeal shall be served on the Minister within thirty days of the date of the decision being appealed but not less than ten days before the day on which the motion is returnable.

16(3)An appeal under subsection (1) shall be made in the manner prescribed by regulation.

1967, c.8, s.16; 1979, c.41, s.39; 1988, c.58, s.11

Cancellation of direct sales contract

17(1)A purchaser may cancel a direct sales contract at any time within ten days after the purchaser is provided with a copy of the direct sales contract under section 9.

17(2)A purchaser may cancel a direct sales contract within one year after entering into the contract where

(a) the vendor or the salesman of the vendor was not licensed under this Act at the time the purchaser entered into the direct sales contract,

(b) the vendor or the salesman of the vendor has in respect of the direct sales contract failed to comply with any terms, conditions or restrictions to which his or her licence is subject,

(c) the vendor or the salesman of the vendor does not provide to the purchaser a direct sales contract and statement of cancellation rights that are in accordance with section 8.1 and the regulations, or

(d) the vendor or the salesman of the vendor fails to

(i) deliver the goods within thirty days after

(A) the delivery date specified in the direct sales contract or such amended delivery date as may be specified in a subsequent written agreement, or

(B) if the delivery date is not specified in the direct sales contract or a subsequent written agreement, the date the direct sales contract is made, or

(ii) begin to provide the services within thirty days after

(A) the commencement date specified in the direct sales contract or such amended commencement date as may be specified in a subsequent written agreement, or

(B) if the commencement date is not specified in the direct sales contract or a subsequent written agreement, the date the direct sales contract is made.

17(3)A purchaser who accepts delivery of goods or the provision of services under a direct sales contract after the thirty-day period referred to in paragraph (2)(d) is not entitled to cancel the direct sales contract under that paragraph.

17(4)Where in the opinion of a court it is inequitable that paragraph (2)(d) should apply, the court may make such order as it considers appropriate.

17(5)The cancellation rights under this section in respect of a direct sales contract are in addition to and do not affect any other rights or remedy the purchaser has under or in respect of the direct sales contract or at law in the province or territory in which the purchaser resides.

17(6)Where credit is extended or arranged by a vendor or a salesman of the vendor in connection with a direct sales contract and the credit agreement is conditional on the direct sales contract, a cancellation of the direct sales contract under this section has the effect of cancelling the credit agreement.

1967, c.8, s.17; 1968, c.25, s.2; 1981, c.20, s.8; 1983, c.26, s.9; 1997, c.23, s.7

Notice of cancellation

17.1(1)A direct sales contract is cancelled under section 17 when the purchaser gives a notice of cancellation in accordance with this section.

17.1(2)A purchaser may give a notice of cancellation to the direct seller, vendor or a salesman of the vendor by

(a) delivering it personally to the direct seller, vendor or salesman of the vendor, or

(b) sending it to the direct seller, vendor or salesman of the vendor by registered mail, prepaid courier, telephone transmission producing a facsimile or any other method that permits the purchaser to provide evidence of the cancellation.

17.1(3)A notice of cancellation shall be deemed to be given to the direct seller, vendor or a salesman of the vendor if

(a) it is delivered or sent to the address for notice specified for that purpose in the direct sales contract, or

(b) where an address for notice is not specified in the direct sales contract, the notice of cancellation is delivered or sent to the address for service provided for in section 6.

17.1(4)A notice of cancellation that is given in accordance with paragraph (2)(b) shall be deemed to be given when it is sent.

17.1(5)Subject to subsections (2), (3), and (4), a notice of cancellation is adequate if it indicates the intention of the purchaser to cancel the direct sales contract.

1997, c.23, s.8

Obligations on cancellation

17.2(1)Where a direct sales contract is cancelled under section 17,

(a) the direct seller or vendor shall, within fifteen days after the notice of cancellation has been delivered or sent,

(i) refund the money received under the direct sales contract to the purchaser, and

(ii) if goods were taken by the direct seller or vendor as a trade-in, return them to the purchaser in as good a condition as they were in when they were taken in trade, or if the direct seller or vendor is not able to do that, pay to the purchaser the greater of

(A) the market value of the goods at the time they were taken in trade, and

(B) the price or value of the goods specified in the direct sales contract, and

(b) in the case of a direct sales contract respecting goods, on receiving everything to be refunded, returned or paid to the purchaser under paragraph (a), the purchaser shall deliver up the goods to the direct seller or vendor in as good a condition as they were in when they were delivered.

17.2(2)Where a direct sales contract is cancelled under section 17, the direct seller or vendor is entitled to reasonable compensation for the portion of the goods consumed by the purchaser and for the services partially performed by the direct seller or vendor but the direct seller’s or vendor’s rights do not arise under this subsection until he or she complies with subsection (1).

1997, c.23, s.8

Enforcement

18For the purposes of any investigation that the Minister deems necessary for the effective administration of this Act, the Lieutenant-Governor in Council may appoint a person designated in writing by the Minister a commissioner under the Inquiries Act.

1967, c.8, s.18

Inspection and removal of records

18.1(1)The Minister may during normal business hours enter upon the business premises of a vendor or a direct seller and may inspect any book, record, account or document that relates to or may relate to direct sales contracts.

18.1(2)During an inspection referred to in subsection (1), the vendor or the direct seller shall produce for inspection all books, records, accounts and documents that relate to or that may relate to direct sales contracts.

18.1(3)The Minister may, after giving the vendor or the direct seller a receipt to that effect, remove any book, record, account or document so as to examine or photocopy it.

18.1(4)Where the Minister removes any book, record, account or document under subsection (3), the Minister shall, on the request of the vendor or the direct seller and without charge, furnish the vendor or the direct seller with a copy of the book, record, account or document.

18.1(5)The Minister shall return any book, record, account or document removed as soon as practicable.

1988, c.58, s.13

Production of licence upon request

19A person licensed under this Act shall produce his licence for inspection when requested to do so by any person with whom he negotiates a direct sales contract.

1967, c.8, s.19

Contract regarding goods or services not in compliance with any Act or regulation

19.1(1)No direct seller, salesman of a vendor or vendor shall enter into a direct sales contract in relation to any

(a) goods that do not on delivery, or

(b) services that do not on completion

comply with any Act or regulation of the Legislature or of the Government of Canada.

19.1(2)Where the Minister has reason to believe that a person who holds a licence under this Act has violated subsection (1), the Minister may suspend or cancel that licence.

19.1(3)Where a person applies for a licence under section 5 and the Minister has reason to believe that if a licence is issued under this Act a violation of subsection (1) may occur, the Minister may refuse to issue the licence.

1988, c.58, s.14

Certificate evidence

20A certificate signed by the Minister stating that on a specified day

(a) a vendor or a salesman or any other person named in the certificate was or was not licensed under this Act,

(b) a licence was issued under this Act to a vendor or a salesman, or

(c) the licence of a vendor or salesman issued under this Act was suspended, cancelled or reinstated,

is admissible in evidence as prima facie proof of the facts stated therein without proof of the signature or official position or authority of the person signing the certificate.

1967, c.8, s.21

Onus of proof

20.1In any proceeding in which a question arises as to whether or not this Act applies to a direct sales contract, the onus is on the direct seller to establish that the Act does not apply to that contract.

1981, c.20, s.9

Waiver of provisions of Act

21Any agreement, oral or written, express or implied, that any of the provisions of this Act or the regulations do not apply or that any benefit or remedy provided by this Act or the regulations is not available, or that in any way limits, modifies or abrogates or in effect limits, modifies or abrogates any such benefit or remedy, is void and money paid under or by reason of any such agreement is recoverable in any court of competent jurisdiction.

1967, c.8, s.22

Direct sales contract for several items

22Where several items of goods or several services are purchased as part of one transaction, that transaction is deemed to be one of direct sales contract for the purposes of this Act.

1967, c.8, s.23

Repealed

23Repealed: 1981, c.20, s.10

1967, c.8, s.24; 1981, c.20, s.10

Regulations

24The Lieutenant-Governor in Council may make regulations

(a) prescribing licensing requirements under this Act;

(b) prescribing fees payable for licences under this Act;

(c) exempting any person or class of persons from any provision of this Act;

(d) prescribing conditions, terms and restrictions of licences under this Act;

(e) respecting direct sales contracts including, without limiting the generality of the foregoing, the format and content of direct sales contracts, the information to be included in direct sales contracts, the statement of cancellation rights to be included in direct sales contracts and any other requirements in relation to direct sales contracts and statements of cancellation rights;

(f) exempting any goods or services from the provisions of this Act; and

(g) for the better administration of this Act.

1967, c.8, s.25; 1981, c.20, s.11; 1997, c.23, s.9

Offences and penalties

25(1)A person who violates or fails to comply with a provision of the regulations commits an offence.

25(2)A person who violates or fails to comply with a provision of this Act that is listed in Column I of Schedule A commits an offence.

25(3)For the purposes of Part II of the Provincial Offences Procedure Act, each offence listed in Column I of Schedule A is punishable as an offence of the category listed beside it in Column II of Schedule A.

1967, c.8, s.26; 1975, c.19, s.1; 1983, c.26, s.11; 1990, c.61, s.34

Limitation period for prosecution

26No prosecution for an offence under this Act or the regulations shall be commenced after one year from the date of the offence.

1967, c.8, s.27

SCHEDULE A

Column I Section		Column II Category of Offence
Column I Section		Column II Category of Offence

	4(1)..............		E
	4(5)(a)..............		C
	4(5)(b)..............		C
	4(6)..............		C
	9..............		E
	11..............		C
	12..............		B
	12.2..............		C
	15(1)..............		E
	17.2(1)(a)..............		E
	19..............		C
	19.1(1)..............		E
	25(1)..............		B

1990, c.61, s.34; 1997, c.23, s.10

N.B. This Act is consolidated to September 1, 2011.

D-10 - Direct Sellers Act

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