Acts and Regulations

2011, c.126 - Collection and Debt Settlement Services Act

Full text
Current to 1 January 2024
2011, c.126
Collection and Debt Settlement Services Act
2017, c.26, s.1
Deposited May 13, 2011
1
DEFINITIONS AND APPLICATION
2016, c.36, s.1
Definitions
1The following definitions apply in this Act.
“collection agency” means a person, other than a collector, who(agence de recouvrement)
(a) carries on the business of collecting debts for other persons in consideration of the payment of a commission on the amount collected or otherwise, whether the head office of the collection agency is within or outside the Province, or
(b) provides debt settlement services, whether the head office of the collection agency is within or outside the Province.
“collector” means a person employed, appointed or authorized by a collection agency to solicit business for the agency, to collect debts for the agency or to provide debt settlement services on behalf of the agency.(agent de recouvrement)
“Commission” means the Financial and Consumer Services Commission continued under the Financial and Consumer Services Commission Act.(Commission)
“compliance officer” means a person appointed as a compliance officer under section 9.12.(agent de conformité)
“Court of King’s Bench” means The Court of King’s Bench of New Brunswick.(Cour du Banc du Roi)
“Court of Queen’s Bench” Repealed: 2023, c.17, s.32
“debt settlement services” means offering or undertaking to act for a debtor in arrangements or negotiations with the debtor’s creditors or receiving money from a debtor for distribution to the debtor’s creditors, if the services are provided in consideration of a fee, commission or other remuneration that is payable by the debtor.(services de règlement de dette)
“debt settlement services agreement” means an agreement under which a collection agency provides debt settlement services to a debtor.(convention de services de règlement de dette)
“Director” means the Director of Consumer Affairs appointed under the Financial and Consumer Services Commission Act and includes any person designated by the Commission or the Director to act on the Director’s behalf. (directeur)
“investigator” means a person appointed as an investigator under section 9.31.(enquêteur)
“Minister” Repealed: 2013, c.31, s.3
“prescribed” means prescribed by the regulations.(prescrit)
“regulated activity” means any activity governed by this Act or the regulations.(activité réglementée)
“regulation” means a regulation made under this Act and, unless the context otherwise indicates, includes a rule.(règlement)
“rule” means a rule made under section 11, or if the context requires, a rule made under the Financial and Consumer Services Commission Act.(règle)
“Tribunal” means the Tribunal as defined in the Financial and Consumer Services Commission Act.(Tribunal)
R.S.1973, c.C-8, s.1; 1975, c.14, s.1; 1978, c.D-11.2, s.6; 2006, c.16, s.36; 2012, c.39, s.44; 2013, c.31, s.3; 2016, c.36, s.1; 2017, c.26, s.2; 2023, c.6, s.6; 2023, c.17, s.32
Application
2(1)Subject to subsection (2), this Act does not apply to
(a) a member of the Bar of the Province of New Brunswick,
(a.1) assignees, custodians, liquidators, receivers, trustees or other persons licensed or acting under the Business Corporations Act, the Companies Act, the Judicature Act, the Bankruptcy and Insolvency Act (Canada) and the Winding-up and Restructuring Act (Canada), in respect of the provision of debt settlement services,
(b) an insurance agent licensed under the Insurance Act in respect of the collection of insurance premiums,
(c) a bank listed in Schedule I or II of the Bank Act (Canada), or its officials or employees, in respect of any business of the bank,
(d) a loan company or a trust company licensed under the Loan and Trust Companies Act, or its officials or employees, in respect of any business of the company,
(e) a credit union incorporated under the Credit Unions Act, or its officials or employees, in respect of any business of the credit union,
(f) any body corporate operated on a not-for-profit basis, in respect of any business of the body corporate, or
(g) any person or class of persons exempted from the application of this Act by an order of the Director made under subsection 2.1(1).
2(2)This Act applies to a member of the Bar of any province who carries on a collection agency in a name other than his or her own.
R.S.1973, c.C-8, s.8; 2017, c.26, s.3; 2023, c.2, s.165
Exemptions
2017, c.26, s.4
2.1(1)If the Director considers it appropriate to do so, the Director may, by order and subject to any terms and conditions the Director considers appropriate, exempt any person or class of persons from the application of this Act or any provision of it or from the application of the regulations or any provision of them.
2.1(2)An order under subsection (1) may be made on the Director’s own motion or on the application of an interested person.
2.1(3)The order may be retroactive in its operation.
2.1(4)A person to whom the order applies shall comply with the terms and conditions imposed by the Director under subsection (1).
2017, c.26, s.4
2
LICENCES
2016, c.36, s.1
Licence
3(1)No person shall carry on the business of a collection agency, operate a branch office of a collection agency, or act as a collector until the person has been licensed as provided by this Act and the regulations and has caused notice of the licence to be published in The Royal Gazette.
3(2)Repealed: 2016, c.36, s.1
R.S.1973, c.C-8, s.2; 1975, c.14, s.2; 2008, c.11, s.7; 2016, c.36, s.1
Application for licence
4(1)An application for a licence shall
(a) be made in writing,
(b) be accompanied by the prescribed fee, and
(c) furnish the information required by or in accordance with the regulations.
4(2)The Director may
(a) issue a licence to the applicant if the Director is satisfied that the applicant is suitable to be licensed and the proposed licence is not for any reason objectionable,
(b) at any time restrict a licence by imposing any terms and conditions that he or she considers appropriate on the licence,
(c) refuse to issue a licence to the applicant if the Director is of the opinion, after due investigation made by the Director or by a person the Director designates, that the applicant should not be issued a licence.
4(3)The holder of a licence shall comply with the terms and conditions imposed on the licence by the Director and to any terms and conditions for the licence established by the regulations.
4(4)The Director shall not refuse to issue a licence or impose terms and conditions on the licence without giving the applicant or holder of the licence an opportunity to be heard.
R.S.1973, c.C-8, s.3; 1975, c.14, s.3; 1985, c.7, s.2; 2013, c.31, s.3; 2016, c.36, s.1.
Prohibition regarding lack of licence
2016, c.36, s.1
5No collection agency or collector shall carry on business in the Province, either by correspondence or by serving written demands or making verbal demands on alleged debtors, without the licence required by this Act.
R.S.1973, c.C-8, s.4; 1975, c.14, s.4; 2008, c.11, s.7; 2016, c.36, s.1
Prohibition regarding use of unlicensed agency
2016, c.36, s.1
6No person shall employ a collection agency that does not have the licence required by this Act, or cause letters to be sent to or oral demands to be made on debtors or alleged debtors by a collection agency not having that licence.
R.S.1973, c.C-8, s.5; 2008, c.11, s.7; 2016, c.36, s.1
Offence regarding violation of regulations
Repealed: 2016, c.36, s.1
2016, c.36, s.1
7Repealed: 2016, c.36, s.1
1984, c.19, s.1; 2008, c.11, s.7; 2016, c.36, s.1
Examination of books and records
Repealed: 2016, c.36, s.1
2016, c.36, s.1
8Repealed: 2016, c.36, s.1
1985, c.7, s.3; 2013, c.31, s.3; 2016, c.36, s.1
Suspension or cancellation of licence
9(1)The Director may suspend or cancel a licence in accordance with the regulations or when the Director considers it in the public interest to do so.
9(2)No person whose licence has been cancelled is entitled to a new licence for one year after the cancellation.
9(3)A person who is directly affected by a decision of the Director under this section or section 4 may appeal the decision to the Tribunal within 30 days after the date of the decision.
9(3.1)Despite subsection (3), the Tribunal may extend the period for appealing a decision, before or after the expiration of the time, if it is satisfied that there are reasonable grounds for an extension.
9(4)When a licence has been suspended or cancelled under this Act, the holder of the licence shall return the licence to the Director without delay.
9(4.1)If money is held in trust by a person whose licence is suspended or cancelled under this Act, the Director may order a financial institution holding the money to refrain from paying out all or any part of the money for the period of the suspension or cancellation.
9(4.2)The Director shall not cancel or suspend a licence under this Act without providing the holder of the licence an opportunity to be heard.
9(5)Repealed: 2016, c.36, s.1
R.S.1973, c.C-8, s.6; 1975, c.14, s.5; 1979, c.41, s.17; 1985, c.7, s.4; 2008, c.11, s.7; 2013, c.31, s.3; 2016, c.36, s.1; 2017, c.48, s.2
2.1
DEBT SETTLEMENT SERVICES AGREEMENT
2017, c.26, s.5
Prohibited representations
2017, c.26, s.5
9.01A collection agency or collector shall not communicate or cause to be communicated any representation relating to a debt settlement services agreement that is specified as a prohibited representation by regulation.
2017, c.26, s.5
Debt settlement services agreement
2017, c.26, s.5
9.02(1)No collection agency shall provide debt settlement services to a debtor and no collector shall provide those services to a debtor on behalf of a collection agency unless the agency has
(a) entered into a debt settlement services agreement with the debtor
(i) that is in writing,
(ii) that contains a clear and detailed explanation of the effect that the debt settlement services agreement will have on the debtor’s credit rating, and
(iii) that meets the requirements prescribed, if any, and
(b) delivered a written copy of the agreement to the debtor.
9.02(2)No collection agency shall enter into more than one debt settlement services agreement with the same debtor while there is a debt settlement services agreement between the parties that has not expired.
2017, c.26, s.5
Restrictions on payments for services
2017, c.26, s.5
9.03(1)The following definition applies in this section.
“payment” means any compensation, however described, that a debtor is or will be required to pay a collection agency or any other person as a condition of entering into a debt settlement services agreement.
9.03(2)No collection agency or collector that provides debt settlement services shall require or accept any payment or any security for the payment, directly or indirectly, in advance of providing the services, except as prescribed, or in excess of the maximum amount prescribed or determined in accordance with the regulations.
9.03(3)Every arrangement by which a collection agency or collector takes security in contravention of subsection (2) is void.
2017, c.26, s.5
Prohibited activities
2017, c.26, s.5
9.04(1)No collection agency or collector shall offer, pay or provide any gift, bonus, premium, reward or other compensation or benefit of any kind in order to induce a debtor to enter into a debt settlement services agreement.
9.04(2)No collection agency or collector shall lend money or provide credit to a debtor.
2017, c.26, s.5
Refusal to accept settlement
2017, c.26, s.5
9.05If a creditor of a debtor refuses to accept a settlement of the debtor’s debt proposed by a collection agency or collector, the collection agency or collector shall inform the debtor within 30 days after the refusal.
2017, c.26, s.5
Cancellation: cooling-off period
2017, c.26, s.5
9.06(1)A debtor who is a party to a debt settlement services agreement may, without any reason and without charge, cancel the agreement at any time from the date of entering into it until 10 days after receiving a written copy of the agreement.
9.06(2)In addition to the right under subsection (1), a debtor who is a party to a debt settlement services agreement may, without charge, cancel the agreement within one year after the date of entering into it if the debtor does not receive a written copy of the agreement.
9.06(3)The cancellation of a debt settlement services agreement in accordance with this section operates to cancel the agreement as though it never existed.
2017, c.26, s.5
Notice of cancellation and obligations on cancellation
2017, c.26, s.5
9.07(1)A debt settlement services agreement is cancelled under section 9.06 when the debtor gives a notice of cancellation in accordance with this section.
9.07(2)A debtor may give a notice of cancellation to a collection agency by
(a) delivering it personally to the collection agency, or
(b) sending it to the collection agency by registered mail, prepaid courier, telephone transmission producing a facsimile or any other method that permits the debtor to provide evidence of the cancellation.
9.07(3)A notice of cancellation that is given in accordance with paragraph (2)(b) shall be deemed to be given when it is sent.
9.07(4)Subject to subsections (2) and (3), a notice of cancellation is adequate if it indicates the intention of the debtor to cancel the debt settlement services agreement.
9.07(5)If a debt settlement services agreement is cancelled under section 9.06, within 15 days after the notice of cancellation has been delivered or sent, the collection agency shall refund the money received under the agreement to the debtor.
2017, c.26, s.5
3
RECORD-KEEPING, ADVERTISING AND COMPLIANCE REVIEWS
2016, c.36, s.1
Record-keeping
2016, c.36, s.1
9.1(1)The following definition applies in this section.
“regulatory authority” means a person empowered by the laws of a jurisdiction to regulate the activities of a collection agency or of a person operating a branch office of a collection agency.
9.1(2)A collection agency or person operating a branch office of a collection agency shall keep books, records and documents that are necessary for the proper recording of its business and affairs and shall keep any other books, records and documents that are otherwise required under this Act or the regulations.
9.1(3)A collection agency or person operating a branch office of a collection agency shall keep the books, records and documents at a safe location and in a durable form.
9.1(4)A collection agency or person operating a branch office of a collection agency shall retain the books, records and documents for a minimum period of seven years after the date of the transaction to which the books, records or documents relate.
9.1(5)A collection agency or person operating a branch office of a collection agency shall deliver to the Director, or to any other employee of the Commission, at any time that the Director or other employee requires
(a) any of the books, records and documents that are required to be kept by the collection agency or person operating a branch office of a collection agency under this Act or the regulations, and
(b) any filings, reports or other communications made to any other regulatory authority.
2016, c.36, s.1
False or misleading advertisement
2016, c.36, s.1
9.11(1)No holder of a licence issued under this Act shall make any false, misleading or deceptive statements in any advertisement, circular, pamphlet or similar material prepared or used in respect of a regulated activity.
9.11(2)If, in the opinion of the Director, a holder of a licence issued under this Act has made a false, misleading or deceptive statement in any advertisement, circular, pamphlet or similar material referred to in subsection (1), the Director may order the holder of the licence to stop using that material immediately.
2016, c.36, s.1
Compliance review
2016, c.36, s.1
9.12(1)The Commission may appoint in writing a person as a compliance officer for the purpose of ensuring compliance with this Act and the regulations.
9.12(2)The Commission shall issue to every compliance officer a certificate of appointment and every compliance officer, in the execution of his or her duties under this Act or the regulations, shall produce his or her certificate of appointment on request.
9.12(3)For the purpose of determining whether this Act and the regulations are being complied with, a compliance officer, in carrying out a compliance review, may
(a) enter the premises of any collection agency or a person operating a branch office of a collection agency during normal business hours,
(b) require a collection agency or a person operating a branch office of a collection agency or an officer or employee of either of them to produce for inspection, examination, auditing or copying any books, records or documents relating to the business or affairs of the collection agency or person operating a branch office of a collection agency,
(c) inspect, examine, audit or copy the books, records or documents relating to the business or affairs of a collection agency or person operating a branch office of a collection agency, and
(d) question a collection agency or a person operating a branch office of a collection agency or an officer or employee of either of them in relation to the business or affairs of the collection agency or person operating a branch office of a collection agency.
9.12(4)In carrying out a compliance review, a compliance officer may
(a) use a data processing system at the premises where the books, records or documents are kept,
(b) reproduce any book, record or document, and
(c) use any copying equipment at the premises where the books, records or documents are kept to make copies of any book, record or document.
9.12(5)A compliance officer may carry out a compliance review within or outside the Province.
9.12(6)A compliance officer shall not enter a private dwelling under subsection (3) unless the compliance officer has the consent of the occupier or has obtained an entry warrant under the Entry Warrants Act.
9.12(7)Before or after attempting to enter or to have access to any premises, a compliance officer may apply for an entry warrant under the Entry Warrants Act.
9.12(8)The Commission may, in prescribed circumstances, require a collection agency or a person operating a branch office of a collection agency in respect of which a compliance review was carried out to pay the Commission any prescribed fee and to reimburse the Commission for any prescribed expenses.
2016, c.36, s.1
Removal of documents
2016, c.36, s.1
9.2(1)A compliance officer who removes books, records or documents to make a copy or extract of them or any part of them shall give a receipt to the occupier of the premises for the books, records or documents removed and return the books, records or documents as soon as possible after the making of copies or extracts.
9.2(2)A copy or extract of any book, record or document related to a compliance review and purporting to be certified by a compliance officer is admissible in evidence in any action, proceeding or prosecution and is proof, in the absence of evidence to the contrary, of the original without proof of the appointment, authority or signature of the person purporting to have certified the copy or extract.
2016, c.36, s.1
Misleading statements
2016, c.36, s.1
9.21No person shall knowingly make a false or misleading statement, either orally or in writing, to a compliance officer while the compliance officer is engaged in carrying out his or her duties under this Act or the regulations.
2016, c.36, s.1
Obstruction
2016, c.36, s.1
9.22(1)No person shall obstruct or interfere with a compliance officer who is carrying out or attempting to carry out a compliance review under this Part, or withhold, destroy, conceal, alter or refuse to produce any information or thing reasonably required by a compliance officer for the purposes of the compliance review.
9.22(2)A refusal of consent to enter a private dwelling is not and shall not be considered to be interfering with or obstructing within the meaning of subsection (1), except if an entry warrant has been obtained.
2016, c.36, s.1
4
INVESTIGATIONS
2016, c.36, s.1
Provision of information to Director
2016, c.36, s.1
9.3(1)The Director may make an order under subsection (2)
(a) for the administration of this Act or the regulations, or
(b) to assist in the administration of similar legislation of another jurisdiction.
9.3(2)By an order applicable generally or to one or more persons named or otherwise described in the order, the Director may require any of the following persons to provide information or to produce books, records or documents or classes of books, records or documents specified or otherwise described in the order within the time or at the intervals specified in the order:
(a) the holder of a licence issued under this Act;
(b) a former holder of a licence issued under this Act; or
(c) any person that does not hold a licence under this Act and that is, or the Director has reason to suspect is, carrying out a regulated activity.
9.3(3)The Director may require that the authenticity, accuracy or completeness of information provided or of a book, record or document or a class of books, records or documents produced pursuant to an order under subsection (2) be verified by affidavit.
9.3(4)The Director may require that the information provided or that the books, records or documents or classes of books, records or documents produced pursuant to an order made under subsection (2) be delivered in electronic form, if the information or the books, records or documents or classes of books, records or documents are already available in that form.
2016, c.36, s.1
Investigation order
2016, c.36, s.1
9.31(1)The Commission may, by order, appoint a person as an investigator to make any investigation that the Commission considers expedient
(a) for the administration of this Act or the regulations, or
(b) to assist in the administration of similar legislation of another jurisdiction.
9.31(2)In its order, the Commission shall specify the scope of an investigation to be carried out under subsection (1).
2016, c.36, s.1
Powers of investigator
2016, c.36, s.1
9.32(1)An investigator may, with respect to the person who is the subject of the investigation, investigate, inspect and examine
(a) the business or affairs of that person,
(b) any books, records, documents or communications connected with that person, and
(c) any property or assets owned, acquired or disposed of, in whole or in part, by that person or by a person acting on behalf of or as agent for that person.
9.32(2)For the purposes of an investigation under this Part, an investigator may inspect and examine any book, record, document or thing, whether in possession or control of the person in respect of whom the investigation is ordered or any other person.
9.32(3)An investigator making an investigation under this Part may, on production of the order appointing him or her,
(a) enter the business premises of any person named in the order during normal business hours and inspect and examine any book, record, document or thing that is used in the business of that person and that relates to the order,
(b) require the production of any book, record, document or thing referred to in paragraph (a) for inspection or examination, and
(c) on giving a receipt, remove the book, record, document or thing inspected or examined under paragraph (a) or (b) for the purpose of further inspection or examination.
9.32(4)Inspection or examination under this section shall be completed as soon as possible and the books, records, documents or things shall be returned promptly to the person who produced them.
9.32(5)No person shall withhold, destroy, conceal, alter or refuse to give any information or withhold, destroy, conceal, alter or refuse to produce any book, record, document or thing reasonably required under subsection (3) by an investigator.
2016, c.36, s.1
Power to compel evidence
2016, c.36, s.1
9.4(1)An investigator making an investigation under this Part has the same power to summon and enforce the attendance of witnesses, to compel witnesses to give evidence under oath or in any other manner and to compel witnesses to produce books, records, documents and things or classes of books, records, documents and things as the Court of King’s Bench has for the trial of civil actions.
9.4(2)On the application of an investigator to the Court of King’s Bench, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court of King’s Bench.
9.4(3)A person giving evidence at an investigation conducted under this section may be represented by legal counsel.
9.4(4)Testimony given by a person under this section shall not be admitted into evidence against that person in any prosecution other than for perjury in the giving of that testimony or the giving of evidence contradictory to that testimony.
2016, c.36, s.1; 2023, c.17, s.32
Investigators authorized as peace officers
2016, c.36, s.1
9.41Every investigator in carrying out his or her duties under this Act and the regulations is a person employed for the preservation and maintenance of the public peace and has and may exercise all the powers, authorities and immunities of a peace officer as defined in the Criminal Code (Canada).
2016, c.36, s.1
Seized property
2016, c.36, s.1
9.42(1)On request to the investigator by the person who, at the time of the seizure, was in lawful possession of books, records, documents or things seized under this Part, the books, records, documents or things seized shall, at a time and place mutually convenient to the person who was in lawful possession of them at the time of the seizure and the investigator, be made available for consultation and copying by the person.
9.42(2)If books, records, documents or things are seized under this Part and the matter for which the books, records, documents or things were seized is concluded, the investigator shall return those books, records, documents or things to the person who was in lawful possession of them at the time of the seizure within 60 days after the day that the matter is concluded.
9.42(3)If books, records, documents or things are seized under this Part and the person who was in lawful possession of the books, records, documents or things at the time of the seizure alleges that the books, records, documents or things are not relevant in respect of the matter for which they were seized, that person may apply by notice of motion to the Court of King’s Bench for the return of the books, records, documents or things.
9.42(4)On a motion under subsection (3), the Court of King’s Bench shall order the return of any books, records, documents or things that it determines are not relevant to the matter for which they were seized to the person who was in lawful possession of the books, records, documents or things at the time of the seizure.
2016, c.36, s.1; 2023, c.17, s.32
Report of investigation
2016, c.36, s.1
9.5(1)If an investigation has been made under this Part, the investigator shall, at the request of the Commission, provide a report of the investigation to the Commission or any transcripts of evidence or any material or other things in the investigator’s possession relating to the investigation.
9.5(2)A report that is provided to the Commission under this section is privileged and is inadmissible in evidence in any action or proceeding.
2016, c.36, s.1
Prohibition against disclosure
2016, c.36, s.1
9.51(1)For the purpose of protecting the integrity of an investigation under this Part, the Commission may make an order that applies for the duration of the investigation, prohibiting a person from disclosing to any person other than the person’s lawyer the following information:
(a) the fact that an investigation is being conducted;
(b) the name of any person examined or sought to be examined;
(c) the nature or content of any questions asked;
(d) the nature or content of any demands for the production of any document or other thing; or
(e) the fact that any document or other thing was produced.
9.51(2)An order under subsection (1) does not apply to disclosures authorized by the regulations or by the Director in writing.
9.51(3)An investigator making an investigation under this Part may make, or authorize the making of, any disclosure of information that may be required for the effectual conduct of the investigation.
2016, c.36, s.1
Non-compellability
2016, c.36, s.1
9.52None of the following persons is compellable to give evidence in any court or in any proceeding of a judicial nature concerning any information that comes to the knowledge of the person in the exercise of the powers or performance of the duties of that person in relation to an investigation under this Part:
(a) an investigator;
(b) the Commission;
(c) a member of the Commission;
(d) an employee of the Commission;
(e) a member of the Tribunal; and
(f) a person engaged by the Commission under section 18 of the Financial and Consumer Services Commission Act.
2016, c.36, s.1
5
ENFORCEMENT
2016, c.36, s.1
Offences generally
2016, c.36, s.1
9.6(1)A person who does any of the following commits an offence, and is liable on conviction, for each offence, if an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both, and if a person other than an individual, to a fine of not more than $250,000:
(a) makes a statement in any information or material submitted, provided, produced, delivered or given to or filed with the Commission, the Director, a compliance officer, an investigator or any person acting under the authority of the Commission or the Director that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;
(b) makes a statement in any information or material required to be submitted, provided, produced, delivered, given or filed under this Act or the regulations that is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;
(c) withholds, destroys, conceals, alters or refuses to produce any information or thing reasonably required for the purposes of an administrative proceeding under this Act or the regulations;
(d) violates or fails to comply with a provision of this Act that is listed in Schedule A;
(e) violates or fails to comply with a decision, ruling, order, temporary order or direction of the Commission, the Director or the Tribunal made or given under this Act or the regulations;
(f) violates or fails to comply with a written undertaking made by that person to the Commission, the Director or the Tribunal under this Act or the regulations; or
(g) violates or fails to comply with any provision of the regulations.
9.6(2)Without limiting the availability of other defences, no person commits an offence under paragraph (1)(a) or (b) if
(a) the person did not know and in the exercise of reasonable diligence could not have known that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading in light of the circumstances in which it was made, and
(b) on becoming aware that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading, the person notified the Commission.
2016, c.36, s.1
Misleading or untrue statements
2016, c.36, s.1
9.61In carrying on a regulated activity, no person shall make a statement that the person knows or reasonably ought to know is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading.
2016, c.36, s.1
Interim preservation of property
2016, c.36, s.1
9.62(1)On the application of the Commission, the Tribunal may make one or more of the following orders if the Tribunal considers it expedient for the administration of this Act or the regulations or to assist in the administration of similar legislation of another jurisdiction:
(a) an order directing a person having on deposit or under control or for safekeeping any funds, securities or property to retain the funds, securities or property and to hold them;
(b) an order directing a person to refrain from withdrawing the person’s funds, securities or property from any other person having any of them on deposit or under control or for safekeeping; or
(c) an order directing a person to hold all funds, securities or property of clients or others in the person’s possession or control in trust for any interim receiver, custodian, trustee, receiver, receiver and manager or liquidator appointed under the Business Corporations Act, the Companies Act, the Judicature Act, the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) or any other Act of the Legislature or of Canada.
9.62(2)An order under subsection (1) that names a financial institution shall apply only to the branches of the financial institution identified in the order.
9.62(3)An order under subsection (1) is effective for seven days after its making, but the Commission may apply to the Court of King’s Bench to continue the order or for any other order that the Court of King’s Bench considers appropriate.
9.62(4)An order under subsection (1) may be made ex parte but, in that event, copies of the order shall be sent without delay by any means that the Tribunal determines to all persons named in the order.
9.62(5)A person in receipt of an order under subsection (1) who is in doubt as to the application of the order to any funds, securities or property or as to a claim being made to that person by any person not named in the order may apply to the Tribunal for direction or clarification.
9.62(6)The Tribunal, on the application of the Commission or of a person directly affected by the order, may revoke an order under subsection (1) or permit the release of any funds, securities or property in respect of which the order was made.
9.62(7)A notice of an order under subsection (1) may be registered or recorded against the lands or claims identified in the order by submitting the notice to the appropriate registry office established under the Registry Act or to the appropriate land titles office established under the Land Titles Act.
9.62(8)The Tribunal may order a notice submitted under subsection (7) to be revoked or modified and, if an order is made, the Commission shall submit a copy of the revocation or modification to the appropriate registry office or land titles office.
9.62(9)On submission of a notice under subsection (7) or a copy of a written revocation or modification under subsection (8), the notice or the copy of the revocation or modification shall be registered or recorded in the registry office or land titles office, as the case may be, by the registrar and has the same effect as the registration or recording of a certificate of pending litigation.
2016, c.36, s.1; 2023, c.2, s.165; 2023, c.17, s.32
Orders in the public interest
2016, c.36, s.1
9.7(1)On the application of the Commission, the Tribunal, if in its opinion it is in the public interest to do so, may make one or more of the following orders:
(a) an order that a licence be suspended or restricted for the period specified in the order or be cancelled, or that terms and conditions be imposed on the licence;
(b) an order that any exemptions contained in this Act or the regulations do not apply to a person permanently or for any period specified in the order;
(c) an order that a person cease conducting all or any regulated activities;
(d) an order that a person submit to a review of the person’s practices and procedures relating to regulated activities and institute any changes directed by the Tribunal;
(e) if the Tribunal is satisfied that this Act or the regulations have not been complied with, an order that any document or statement described in the order
(i) be provided by a person,
(ii) not be provided to a person, or
(iii) be amended to the extent that amendment is practicable;
(f) an order that a person be reprimanded;
(g) an order that a person amend, in the manner specified in the order, any information or material of any kind described in the order that is disseminated to the public;
(h) an order that a person cease violating or comply with, and that the directors and officers of the person cause the person to cease violating or to comply with, this Act and the regulations;
(i) if a person has not complied with this Act or the regulations, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.
9.7(2)The Tribunal may impose any terms and conditions that the Tribunal considers appropriate on an order under this section.
9.7(3)A person who is the subject of an order made under this section shall comply with any terms and conditions imposed on the order.
9.7(4)Unless the parties and the Tribunal consent, no order shall be made under this section without a hearing.
9.7(5)Despite subsection (4), if in the opinion of the Tribunal the length of time required to hold a hearing could be prejudicial to the public interest, the Tribunal, without a hearing, may make a temporary order under paragraph (1)(a), (b), (c) or (f).
9.7(6)The temporary order shall take effect immediately and shall expire on the fifteenth day after its making unless extended by the Tribunal.
9.7(7)The Tribunal may extend a temporary order until the hearing is concluded if a hearing is commenced within the 15-day period.
9.7(8)The Commission shall without delay give written notice of an order or temporary order made under this section to any person directly affected by the order or temporary order.
2016, c.36, s.1
Administrative penalty
2016, c.36, s.1
9.71(1)On the application of the Commission and after conducting a hearing, the Tribunal may order a person to pay an administrative penalty of, in the case of an individual, not more than $25,000, and in the case of a person other than an individual, not more than $100,000, if the Tribunal
(a) determines that the person has violated or failed to comply with this Act or the regulations, and
(b) is of the opinion that it is in the public interest to make the order.
9.71(2)The Tribunal may make an order under this section despite the imposition of any other penalty on the person or the making of any other order by the Tribunal, the Commission or the Director related to the same matter.
2016, c.36, s.1
Directors and officers
2016, c.36, s.1
9.8If a person other than an individual violates or has not complied with this Act or the regulations, a director or officer of the person who authorized, permitted or acquiesced in the violation or non-compliance shall be deemed also to have violated or not complied with this Act or the regulations, whether or not any proceeding has been commenced against the person under this Act or the regulations or any order has been made against the person under section 9.7.
2016, c.36, s.1
Resolution of administrative proceedings
2016, c.36, s.1
9.81(1)Despite any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission, the Tribunal or the Director under this Act or the regulations may be disposed of by
(a) an agreement approved by the Commission, the Tribunal or the Director, as the case may be,
(b) a written undertaking made by a person to the Commission, the Tribunal or the Director that has been accepted by the Commission, the Tribunal or the Director, as the case may be, or
(c) a decision of the Commission, the Tribunal or the Director, as the case may be, made without a hearing or without compliance with a requirement of this Act or the regulations, if the parties have waived the hearing or compliance with the requirement.
9.81(2)An agreement, written undertaking or decision made, accepted or approved under subsection (1) may be enforced in the same manner as a decision made by the Commission, the Tribunal or the Director under any other provision of this Act or under the regulations.
2016, c.36, s.1
Limitation period
2016, c.36, s.1
9.9No proceeding under this Act or the regulations shall be commenced more than six years after the date of the occurrence of the last event on which the proceeding is based.
2016, c.36, s.1
6
GENERAL
2016, c.36, s.1
Conflict with the Right to Information and Protection of Privacy Act
2016, c.36, s.1
9.91If a provision of this Act is inconsistent or in conflict with a provision of the Right to Information and Protection of Privacy Act, the provision of this Act prevails.
2016, c.36, s.1
Administration
10The Commission is responsible for the administration of this Act.
1985, c.7, s.1; 2013, c.31, s.3
Regulations and rules
2017, c.26, s.6
11(1)The Lieutenant-Governor in Council may make regulations
(a) Repealed: 2017, c.26, s.7
(b) prescribing the fee to be charged for a licence;
(c) Repealed: 2017, c.26, s.7
(d) requiring the giving of security by a collection agency, respecting the nature, form, amount and conditions of forfeiture of that security, and regulating the disposition of the proceeds of that security on forfeiture;
(e) authorizing the Commission, when money is paid to the Commission in consequence of the forfeiture of any security required under the regulations, to deduct from the money and retain the amount of the costs incurred by the Commission in connection with the recovery and distribution of the money, including the costs of an investigation of a claim made on the money;
(f) respecting the manner in which collection agencies are to keep their accounts and the manner in which they are to hold, account for and pay over money collected by them;
(f.1) requiring, for the purposes of subsection 9.1(2), that certain books, records or documents be kept;
(g) Repealed: 2017, c.26, s.7
(h) prohibiting the use of any particular method in the collection of debts by collection agencies or collectors;
(i) respecting returns to be made and information to be provided by collection agencies;
(j) prohibiting the bringing of an action by a collection agency for the recovery of debt in a court of this Province;
(j.1) authorizing disclosures for the purposes of subsection 9.51(2);
(j.2) prescribing circumstances, fees and expenses for the purposes of subsection 9.12(8).
(k) Repealed: 2017, c.26, s.7
11(2)The Lieutenant-Governor in Council may make regulations and the Commission may make rules
(a) prescribing the requirements of an application for a licence under this Act and the form, terms and conditions of a licence;
(b) fixing the date of a licence and the period for which it may be issued;
(c) respecting the suspension and cancellation of a licence;
(d) specifying prohibited representations for the purposes of section 9.01;
(e) governing debt settlement services agreements, including
(i) prescribing requirements for the purposes of subparagraph 9.02(1)(a)(iii);
(ii) prescribing requirements for amending, renewing or extending a debt settlement services agreement;
(f) prescribing for the purposes of subsection 9.03(2) payments or security that may be accepted or required;
(g) prescribing the maximum amount of a payment or security for the purposes of subsection 9.03(2) or prescribing the method of determining that amount, including any formula, ratio or percentage to be used to calculate the amount;
(h) prescribing the nature of fees and other charges that collection agencies may recover or attempt to recover for their services from their clients or their clients’ debtors and the amount or maximum amount of the fees and charges;
(i) respecting forms.
11(3)The Lieutenant-Governor in Council may, by order, amend or repeal a rule made by the Commission.
11(4)Subject to the approval of the Minister of Finance and Treasury Board, the Commission, concurrently with making a rule, may make a regulation that amends or repeals any provision of a regulation made by the Lieutenant-Governor in Council under this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.
11(5)A regulation made under subsection (4) is not effective before the rule referred to in that subsection comes into force.
11(6)Subject to subsection (5), a regulation made under subsection (4) may be retroactive in its operation.
11(7)A regulation or rule authorized by this section may incorporate by reference, in whole or in part, any laws, any by-laws or other regulatory instruments or any codes, standards, procedures or guidelines as they are amended from time to time before or after the making of the regulation or the rule or as they read at a fixed time and may require compliance with any law, any by-law or other regulatory instrument or any code, standard, procedure or guideline so incorporated.
11(8)Regulations or rules may vary for or be made in respect of different persons, matters or things or different classes or categories of persons, matters or things.
11(9)A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.
11(10)The Regulations Act does not apply to the rules made under this Act.
11(11)If there is a conflict or an inconsistency between a regulation made by the Lieutenant-Governor in Council under this Act and a rule made under this Act, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.
R.S.1973, c.C-8, s.7; 1975, c.14, s.6; 1984, c.19, s.2; 1985, c.7, s.5; 2013, c.31, s.3; 2016, c.36, s.1; 2017, c.26, s.7; 2019, c.29, s.27
Notice and publication of rules
2017, c.26, s.8
12(1)As soon as the circumstances permit after a rule is made under section 11, the Commission shall
(a) publish the rule electronically, and
(b) publish in The Royal Gazette notice of the rule in accordance with the regulations made under the Financial and Consumer Services Commission Act.
12(2)Without delay after the Commission makes a rule, it shall make a copy of the rule available for public inspection at each of the Commission’s offices during the normal business hours of the Commission.
12(3)When notice of a rule has been published in The Royal Gazette in accordance with paragraph (1)(b), a person affected by the rule shall be deemed to have notice of it on the date the rule is published in accordance with paragraph (1)(a).
2017, c.26, s.8
Changes by Secretary of the Commission
2017, c.26, s.8
13The Secretary of the Commission may make changes respecting form, style, numbering and typographical, clerical or reference errors in a rule made by the Commission without changing the substance of the rule if the changes are made before the date the rule is published in accordance with paragraph 12(1)(a).
2017, c.26, s.8
Consolidated rules
2017, c.26, s.8
14(1)The Secretary of the Commission may maintain a consolidation of the rules made by the Commission.
14(2)In maintaining a consolidation of the rules, the Secretary of the Commission may make changes respecting form and style and respecting typographical errors without changing the substance of a rule.
14(3)The Commission may publish the consolidated rules in the frequency that it considers appropriate.
14(4)A consolidated rule does not operate as new law but shall be interpreted as a consolidation of the law contained in the original rule and any subsequent amendments.
14(5)In the event of an inconsistency between a consolidated rule published by the Commission and the original rule or a subsequent amendment, the original rule or amendment prevails to the extent of the inconsistency.
2017, c.26, s.8
SCHEDULE A
Number of provision
2.1(4)
3(1)
4(3)
5
6
9(4)
9.01
9.02(1)(a)
9.02(1)(b)
9.02(2)
9.03(2)
9.04(1)
9.04(2)
9.05
9.07(5)
9.1(2)
9.1(3)
9.1(4)
9.1(5)(a)
9.1(5)(b)
9.11(1)
9.21
9.22(1)
9.32(5)
9.61
9.7(3)
2016, c.36, s.1; 2017, c.26, s.9
N.B. This Act was proclaimed and came into force September 1, 2011.
N.B. This Act is consolidated to June 16, 2023.