[37] Bill 180 Royal Assent (PDF)

Bill 180 2002

An Act to enact,
amend or revise various Acts
related to consumer protection

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Consumer Protection Act, 2002 enacted

1. Schedule A to this Act is hereby enacted.

Motor Vehicle Dealers Act, 2002 enacted

2. Schedule B to this Act is hereby enacted.

Real Estate and Business Brokers Act, 2002 enacted

3. Schedule C to this Act is hereby enacted.

Travel Industry Act, 2002 enacted

4. Schedule D to this Act is hereby enacted.

Amendments to other Acts

5. Schedule E to this Act is hereby enacted.

Commencement

6. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same

(2) The Schedules to this Act come into force as provided in the commencement section at the end of each of the Schedules.

Same

(3) If a Schedule provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

7. The short title of this Act is the Consumer Protection Statute Law Amendment Act, 2002.

SCHEDULE A
CONSUMER PROTECTION
ACT, 2002

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

2.

3.

4.

5.

Interpretation

Application

Anti-avoidance

Consumer agreements

Disclosure of information

PART II
CONSUMER RIGHTS AND
WARRANTIES

6.

7.

8.

9.

10.

11.

12.

13.

Rights reserved

No waiver of substantial and procedural rights

Class proceedings

Quality of services

Estimates

Ambiguities to benefit consumer

Charging consumers for assistance

Unsolicited goods or services: relief from legal
obligations

PART III
UNFAIR PRACTICES

14.

15.

16.

17.

18.

19.

False, misleading or deceptive representation

Unconscionable representation

Renegotiation of price

Unfair practices prohibited

Rescinding agreement

Transition

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER
AGREEMENTS

Definitions and Application

20.

Interpretation

Future Performance Agreements

21.

22.

23.

24.

25.

26.

Application of sections

Requirements for future performance agreements

Cancelling future performance agreements

Rights in other goods not enforceable

No repossession after two-thirds paid except by leave of court

Late delivery

Time Share Agreements

27.

28.

Requirements for time share agreements

Cancellation: cooling-off period

Personal Development Services

29.

30.

31.

32.

33.

34.

35.

36.

Application

Requirements for personal development services agreements

Agreements for one year only

Only one agreement

Initiation fee

Instalment plans

Cancellation: cooling-off period

Trustee for payment for unavailable services

Internet Agreements

37.

38.

39.

40.

Application

Disclosure of information

Copy of internet agreement

Cancellation of internet agreement

Direct Agreements

41.

42.

43.

Application

Requirements for direct agreements

Cancellation: cooling-off period

Remote Agreements

44.

45.

46.

47.

Application

Disclosure of information

Copy of remote agreement

Cancellation of remote agreement

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

48.

49.

50.

51.

52.

53.

54.

Definitions

Requirements for consumer agreements

Advance payments prohibited

Cancellation: cooling-off period

Officers, directors

Prohibited representations

Transition

PART VI
REPAIRS TO
MOTOR VEHICLES AND
OTHER GOODS

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

Definitions

Estimates

Estimate fee

Authorization required

Authorization not in writing

Posting signs

Return of parts

Invoice

Warranty for vehicles

Consistent cost

Transition

PART VII
CREDIT AGREEMENTS

General

66.

67.

68.

69.

70.

71.

72.

73.

74.

75.

76.

Definitions

Non-application of Part

Agreement for credit card

Limiting liability for unauthorized charges

Consequence of non-disclosure

Correcting errors

Required insurance

Termination of optional services

Deferral of payments

Default charges

Prepayment

Disclosure

77.

78.

79.

80.

81.

Representations

Disclosure of brokerage fee

Initial disclosure statement

Subsequent disclosure: fixed credit

Subsequent disclosure: open credit

Assignment of Security for Credit

82.

83.

84.

85.

Assignment of negotiable instrument

Obligations of assignee of lender

Order to pay indemnity

Allowance for trade-in subject to adjustment

PART VIII
LEASING

86.

87.

88.

89.

90.

Definitions

Application of Part

Advertising

Disclosure statement

Compensation re: termination of lease

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

91.

92.

93.

94.

95.

96.

97.

98.

99.

100.

101.

Application

Form of consumer notice

Consumer agreements not binding

Cancellation

Effect of cancellation

Obligations on cancellation

Title to goods under trade-in arrangement

Illegal payments

Consumer's recourse re: credit card charges

Action in Superior Court of Justice

Waiver of notice

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

102.

103.

104.

Powers of Minister

Duties of Director

Fees

PART XI
GENERAL

105.

106.

107.

108.

109.

110.

111.

112.

113.

114.

115.

116.

117.

118.

119.

120.

121.

122.

123.

Ministry receives complaints and makes inquiries

Appointment of investigators

Search warrant

Searches in exigent circumstances

False, misleading or deceptive representation

Freeze order

Compliance order

Order for immediate compliance

Appeal

Undertaking of voluntary compliance

Restraining orders

Offences

Orders for compensation, restitution

Default in payment of fines

Liens and charges

Matters confidential

Service by the Director of notice or order

Certificate as evidence

Lieutenant Governor in Council regulations:
general

PART XII
COMMENCEMENT AND SHORT TITLE

124.

125.

Commencement

Short title

______________

PART I
INTERPRETATION AND APPLICATION

Interpretation

1. In this Act,

"consumer" means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes; ("consommateur")

"consumer agreement" means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment; ("convention de consommation")

"consumer transaction" means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement; ("opération de consommation")

"credit card" means a card or device under which a borrower can obtain advances under a credit agreement, as defined in Part VII, for open credit; ("carte de crédit")

"Director" means the person designated as the Director under the Ministry of Consumer and Business Services Act; ("directeur")

"future performance agreement" means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement; ("convention à exécution différée")

"goods" means any type of property; ("marchandises")

"initiation fee" means a fee in addition to an annual membership fee; ("droit d'entrée")

"loan broker" means,

(a) a supplier of loan brokering, or

(b) a person who holds themself out to be a person described in clause (a); ("courtier en prêts")

"loan brokering" means services or goods that are intended to assist a consumer in obtaining a loan of money, including obtaining a loan of money from the loan broker's own funds; ("courtage en prêts")

"loan of money" includes credit that is made available to the consumer; ("prêt d'argent")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act; ("ministre")

"Ministry" means the Ministry of Consumer and Business Services; ("ministère")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"open credit" means credit under a credit agreement, as defined in Part VII, that,

(a) anticipates multiple advances to be made as requested by the borrower in accordance with the agreement, and

(b) does not define the total amount to be advanced to the borrower under the agreement, although it may impose a credit limit; ("crédit en blanc")

"payment" means consideration of any kind, including an initiation fee; ("paiement")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"representation" means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumers; ("assertion")

"services" means anything other than goods, including any service, right, entitlement or benefit; ("services")

"supplier" means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier; ("fournisseur")

"trade-in allowance" means the greater of,

(a) the price or value of the consumer's goods or services as set out in a trade-in arrangement, and

(b) the market value of the consumer's goods or services when taken in trade under a trade-in arrangement; ("valeur de reprise")

"trade-in arrangement" means an arrangement under which a consumer agrees to sell his or her own goods or services to the supplier and the supplier accepts the goods or services as all or part of the consideration for supplying goods or services; ("convention de reprise")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; ("Tribunal")

"year" means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. ("année")

Application

2. (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

Exceptions

(2) This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Mortgage Brokers Act or the Loan and Trust Corporations Act;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Tenant Protection Act, 1997.

Same

(3) This Act does not apply to the supply of a public utility or to any charge for the transmission, distribution or storage of gas as defined in the Ontario Energy Board Act, 1998 if such charge has been approved by the Ontario Energy Board.

Marketers of gas, retailers of electricity

(4) Despite subsection (3), this Act applies to a transaction with,

(a) a gas marketer who is a supplier; and

(b) a retailer of electricity who is a supplier.

Definitions

(5) In this section,

"gas marketer" means a gas marketer as defined in Part IV of the Ontario Energy Board Act, 1998; ("agent de commercialisation de gaz")

"public utility" means water, artificial or natural gas, electrical power or energy, steam or hot water; ("service public")

"retailer of electricity" means a retailer as defined in the Electricity Act, 1998. ("détaillant en électricité")

Anti-avoidance

3. In determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form.

Consumer agreements

4. A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions that apply to each type of agreement for which it meets the criteria except where the application of the provisions is excluded as prescribed.

Disclosure of information

5. (1) If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent.

Delivery of information

(2) If a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer.

PART II
CONSUMER RIGHTS
AND WARRANTIES

Rights reserved

6. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law.

No waiver of substantive and procedural rights

7. (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

Limitation on effect of term requiring arbitration

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

Procedure to resolve dispute

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(5) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Class proceedings

8. (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding.

Procedure to resolve dispute

(2) After a dispute that may result in a class proceeding arises, the consumer, the supplier and any other person involved in it may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(3) A settlement or decision that results from the procedure agreed to under subsection (2) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(4) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (1) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Quality of services

9. (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

Quality of goods

(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.

Same

(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

Same

(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

Estimates

10. (1) If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than 10 per cent.

Performance of consumer agreement

(2) If a supplier charges an amount that exceeds the estimate by more than 10 per cent, the consumer may require that the supplier provide the goods or services at the estimated price.

Subsequent agreement

(3) Nothing in this section prevents a consumer and a supplier from agreeing to amend the estimate or price in a consumer agreement, if the consumer requires additional or different goods or services.

Ambiguities to benefit consumer

11. Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer.

Charging consumers for assistance

12. No person shall charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act, unless, before the consumer agrees to pay the charge, the person discloses the entitlement's existence and direct availability to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly.

Unsolicited goods or services:
relief from legal obligations

13. (1) Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal.

No payment for unsolicited goods or services

(2) No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft.

Request not inferred

(3) A request for goods or services shall not be inferred solely on the basis of payment, inaction or the passing of time.

Material change deemed unsolicited

(4) If a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in such goods or services, the goods or services shall be deemed 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.

Form of consent

(5) 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.

Demand

(6) If a supplier has received a payment in respect of unsolicited goods or services, the consumer who made the payment may demand a refund of the payment in accordance with section 92 within one year after having made the payment.

Refund

(7) A supplier who receives a demand for a refund under subsection (6) shall refund the payment within the prescribed period of time.

Consumer may commence action

(8) The consumer who made the payment may commence an action to recover the payment in accordance with section 100.

Definition

(9) In this section,

"unsolicited goods or services" means,

(a) goods that are supplied to a consumer who did not request them but does not include,

(i) goods that the recipient knows or ought to know are intended for another person,

(ii) a change to periodically supplied goods, if the change in goods is not a material change, or

(iii) goods supplied under a written future performance agreement that provides for the periodic supply of goods to the recipient without further solicitation, or

(b) services that are supplied to a consumer who did not request them but does not include,

(i) services that were intended for another person from the time the recipient knew or ought to have known that they were so intended,

(ii) a change to ongoing or periodic services that are being supplied, if the change in the services is not a material change, or

(iii) services supplied under a written future performance agreement that provides for the ongoing or periodic supply of services to the recipient without further solicitation.

PART III
UNFAIR PRACTICES

False, misleading or deceptive representation

14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.

5. A representation that the goods have been used to an extent that is materially different from the fact.

6. A representation that the goods or services are available for a reason that does not exist.

7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.

11. A representation that a specific price advantage exists, if it does not.

12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.

13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.

14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.

16. A representation that misrepresents the purpose of any charge or proposed charge.

17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.

Unconscionable representation

15. (1) It is an unfair practice to make an unconscionable representation.

Same

(2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person's employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer;

(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.

Renegotiation of price

16. It is an unfair practice for a person to use his, her or its custody or control of a consumer's goods to pressure the consumer into renegotiating the terms of a consumer transaction.

Unfair practices prohibited

17. (1) No person shall engage in an unfair practice.

One act deemed practice

(2) A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice.

Advertising excepted

(3) It is not an unfair practice for a person, on behalf of another person, to print, publish, distribute, broadcast or telecast a representation that the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business.

Rescinding agreement

18. (1) Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.

Remedy if rescission not possible

(2) A consumer is entitled to recover the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to damages, or both, if rescission of the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services is no longer possible; or

(b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value.

Notice

(3) A consumer must give notice within one year after entering into the agreement if,

(a) the consumer seeks to rescind an agreement under subsection (1); or

(b) the consumer seeks recovery under subsection (2), if rescission is not possible.

Form of notice

(4) The consumer may express notice in any way as long as it indicates the intention of the consumer to rescind the agreement or to seek recovery where rescission is not possible and the reasons for so doing and the notice meets any requirements that may be prescribed.

Delivery of notice

(5) Notice may be delivered by any means.

When notice given

(6) If notice is delivered other than by personal service, the notice shall be deemed to have been given when sent.

Address

(7) The consumer may send or deliver the notice to the person with whom the consumer contracted at the address set out in the agreement or, if the consumer did not receive a written copy of the agreement or the address of the person was not set out in the agreement, the consumer may send or deliver the notice,

(a) to any address of the person on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the person known by the consumer.

Commencement of an action

(8) If a consumer has delivered notice and has not received a satisfactory response within the prescribed period, the consumer may commence an action.

Same

(9) If a consumer has a right to commence an action under this section, the consumer may commence the action in the Superior Court of Justice.

Evidence

(10) In the trial of an issue under this section, oral evidence respecting an unfair practice is admissible despite the existence of a written agreement and despite the fact that the evidence pertains to a representation in respect of a term, condition or undertaking that is or is not provided for in the agreement.

Exemplary damages

(11) A court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section.

Liability

(12) Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the consumer is entitled under this section.

Limited liability of assignee

(13) If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment under such an agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the consumer.

Effect of rescission

(14) When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel, as if they never existed,

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended, arranged or facilitated by the person with whom the consumer reached the agreement, or

(ii) otherwise related to the agreement.

Waiver of notice

(15) If a consumer is required to give notice under this Part in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

Transition

19. (1) This Part applies to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Business Practices Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to consumer transactions that occurred before its repeal.

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER AGREEMENTS

Definitions and Application

Interpretation

20. (1) In this Part,

"direct agreement" means a consumer agreement that is negotiated or concluded in person at a place other than,

(a) at the supplier's place of business, or

(b) at a market place, an auction, trade fair, agricultural fair or exhibition; ("convention directe")

"internet" means the decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols; ("Internet")

"internet agreement" means a consumer agreement formed by text-based internet communications; ("convention électronique")

"membership fee" means the amount payable by a consumer for personal development services; ("droit d'adhésion")

"personal development services" means,

(a) services provided for,

(i) health, fitness, diet or matters of a similar nature,

(ii) modelling and talent, including photo shoots relating to modelling and talent, or matters of a similar nature,

(iii) martial arts, sports, dance or similar activities, and

(iv) other matters as may be prescribed, and

(b) facilities provided for or instruction on the services referred to in clause (a) and any goods that are incidentally provided in addition to the provision of the services; ("services de perfectionnement personnel")

"remote agreement" means a consumer agreement entered into when the consumer and supplier are not present together; ("convention à distance")

"time share agreement" means a consumer agreement by which a consumer,

(a) acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b) is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel. ("convention de multipropriété")

Limitations on cancellation

(2) Despite sections 95 and 96, in the prescribed circumstances, the effect of cancellation of a consumer agreement to which this Part applies by a consumer and the obligations arising as a result of the cancellation of the agreement may be subject to such limitations as may be prescribed.

Future Performance Agreements

Application of sections

21. (1) Sections 22 to 26 apply to future performance agreements if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Exception

(2) Sections 22 to 26 do not apply to agreements that are future performance agreements solely because of an open credit arrangement.

Transition

(3) Sections 22 to 26 apply to future performance agreements entered into on or after the day this section is proclaimed in force.

Same

(4) The Consumer Protection Act, as it existed immediately before its repeal under the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to executory contracts entered into before its repeal.

Requirements for future performance agreements

22. Every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancelling future performance agreements

23. A consumer may cancel a future performance agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements required by section 22.

Rights in other goods not enforceable

24. Any provision in any future performance agreement or in any security agreement incidental to such an agreement under which the supplier may acquire title to, possession of or any rights in any goods of the consumer, other than the goods passing to the consumer under the agreement, is not enforceable.

No repossession after two-thirds paid except by leave of court

25. (1) Where a consumer under a future performance agreement has paid two-thirds or more of his or her payment obligation as fixed by the agreement, any provision in the agreement, or in any security agreement incidental to the agreement, under which the supplier may retake possession of or resell the goods or services upon default in payment by the consumer is not enforceable except by leave obtained from the Superior Court of Justice.

Powers of court

(2) Upon an application for leave under subsection (1), the court may, in its discretion, grant leave to the supplier or refuse leave or grant leave upon such terms and conditions as the court considers advisable.

Late delivery

26. (1) A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier,

(a) does not make delivery within 30 days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing; or

(b) does not begin performance of his, her or its obligations within 30 days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing.

Delivery or commencement date not specified

(2) If the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into.

Forgiveness of failure

(3) If, after the period in subsection (1) or (2) has expired, the consumer agrees to accept delivery or authorize commencement, the consumer may not cancel the agreement under this section.

Deemed delivery or performance

(4) For the purposes of subsections (1) and (2), a supplier is considered to have delivered or commenced performance under a future performance agreement if,

(a) delivery was attempted but was refused by the consumer at the time that delivery was attempted or delivery was attempted but not made because no person was available to accept delivery for the consumer on the day for which reasonable notice was given to the consumer that there was to be delivery; or

(b) commencement was attempted but was refused by the consumer at the time that commencement was attempted or commencement was attempted but did not occur because no person was available to enable commencement on the day for which reasonable notice was given to the consumer that commencement was to occur.

Time Share Agreements

Requirements for time share agreements

27. Every time share agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

28. (1) A consumer may, without any reason, cancel a time share agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a time share agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 27.

Personal Development Services

Application

29. (1) Sections 30 to 36 apply in respect of personal development services or proposed personal development services for which,

(a) payment in advance is required; and

(b) the consumer's total potential payment obligation, excluding cost of borrowing, exceeds a prescribed amount.

Exceptions

(2) Sections 30 to 36 do not apply to personal development services that are provided,

(a) on a non-profit or co-operative basis;

(b) by a private club primarily owned by its members;

(c) as an incidental part of the goods or services that are being supplied to the consumer;

(d) by a supplier funded or run by a charitable or municipal organization or by the Province of Ontario or any of its agencies; or

(e) by a golf club.

Transition

(3) Sections 30 to 36 do not apply to a personal development services agreement in existence before this section is proclaimed in force but do apply if a pre-existing agreement is extended or renewed after this section is proclaimed in force.

Same

(4) Agreements that are in existence before sections 30 to 36 are proclaimed in force are governed by the Prepaid Services Act as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002.

Requirements for personal development services
agreements

30. (1) Every personal development services agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Payments not required or accepted

(2) No supplier shall require or accept payment for personal development services from a consumer with whom the supplier does not have an agreement that meets the requirements established under subsection (1).

Agreements for one year only

31. (1) No personal development services agreement may be made for a term longer than one year after the day that all the services are made available to the consumer.

Deemed separate agreement

(2) Any personal development services agreement that provides for a renewal or an extension of the agreement beyond one year shall be deemed to create a separate agreement for each renewal or extension of one year or less.

Renewal provision

(3) A personal development services agreement that provides for the renewal or extension of the agreement is not valid unless the supplier complies with the prescribed requirements.

Deemed non-renewal of agreement

(4) A personal development services agreement that provides for a renewal or extension of the agreement shall be deemed not to be renewed or extended if the consumer notifies the supplier, before the time for renewal or extension, that the consumer does not want to renew or extend.

Monthly renewals

(5) Subsections (2) and (3) do not apply to an agreement providing for successive monthly renewals if the consumer has the option of terminating on one month's notice or less.

Only one agreement

32. (1) No supplier shall enter into a new agreement for personal development services with a consumer with whom the supplier has an existing agreement for personal development services unless the new agreement is for personal development services that are distinctly different from the services provided under the existing agreement.

New agreement void

(2) Any new agreement entered into in contravention of subsection (1) is void.

Same

(3) For the purposes of subsection (1), a different term or a different commencement date does not constitute a distinct difference in the personal development services to be provided.

Renewals exempted

(4) Nothing in this section prevents a personal development services agreement from being renewed during the term of the agreement provided that the renewal meets the requirements under section 31.

Initiation fee

33. No supplier of personal development services shall,

(a) charge a consumer more than one initiation fee; or

(b) charge an initiation fee that is greater than twice the annual membership fee.

Instalment plans

34. (1) Every supplier of personal development services shall make available to consumers at least one plan for instalment payments of membership fees and initiation fees, if applicable, that allow consumers to make equal monthly payments over the term of the personal development services agreement.

Same

(2) No supplier shall provide an instalment payment plan through which the total amount paid by instalments exceeds the membership or initiation fee, if applicable, by more than 25 per cent.

Cancellation: cooling-off period

35. (1) A consumer may, without any reason, cancel a personal development services agreement at any time within 10 days after the later of receiving the written copy of the agreement and the day all the services are available.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a personal development services agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 30.

Trustee for payment for unavailable services

36. (1) No supplier shall receive payment from a consumer for personal development services that are not available at the time the payment is made except if the payment is made through a trust corporation registered under the Loan and Trust Corporations Act that has agreed to act as a trustee for the payment.

Exception

(2) Subsection (1) does not apply when one of the services that is not available is the use of a facility and the consumer has agreed in writing to use another facility provided by the supplier until the facility contracted for is available.

Facility not available

(3) If a facility is not available for use on the day specified in the agreement, the trustee shall refund all payment received from the consumer unless the consumer agrees in writing to permit the trustee to retain the payment.

Extension

(4) No permission given under subsection (3) applies for longer than 90 days but a subsequent permission may be given on the expiration of a permission.

Duties of trustee

(5) Where a supplier has a trustee under subsection (1),

(a) any notice to the trustee shall be deemed to be notice to the supplier; and

(b) any money payable by the supplier is payable by the trustee to the extent that the trustee holds sufficient trust funds for that purpose.

Same

(6) Every trustee under subsection (1) shall, upon receiving any payment from a consumer, provide the consumer with written confirmation of receipt of the payment and of the fact that the payment will be dealt with in accordance with sections 30 to 35 and with this section.

Same

(7) No trustee shall release to a supplier funds received from a consumer until the personal development services are available.

Same

(8) The trustee shall release the funds held under this section to the consumer if the consumer cancels the personal development services agreement in accordance with this Act.

Internet Agreements

Application

37. Sections 38 to 40 apply to an internet agreement if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Disclosure of information

38. (1) Before a consumer enters into an internet agreement, the supplier shall disclose the prescribed information to the consumer.

Express opportunity to accept or decline agreement

(2) The supplier shall provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it.

Manner of disclosure

(3) In addition to the requirements set out in section 5, disclosure under this section shall be accessible and shall be available in a manner that ensures that,

(a) the consumer has accessed the information; and

(b) the consumer is able to retain and print the information.

Copy of internet agreement

39. (1) A supplier shall deliver to a consumer who enters into an internet agreement a copy of the agreement in writing within the prescribed period after the consumer enters into the agreement.

Content of internet agreement

(2) The copy of the internet agreement shall include such information as may be prescribed.

Deemed supply of internet agreement

(3) For the purposes of subsection (1), a supplier is considered to have delivered a copy of the internet agreement to the consumer if the copy is delivered in the prescribed manner.

Cancellation of internet agreement

40. (1) A consumer may cancel an internet agreement at any time from the date the agreement is entered into until seven days after the consumer receives a copy of the agreement if,

(a) the supplier did not disclose to the consumer the information required under subsection 38 (1); or

(b) the supplier did not provide to the consumer an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it.

Same

(2) A consumer may cancel an internet agreement within 30 days after the date the agreement is entered into, if the supplier does not provide the consumer with a copy of the agreement pursuant to section 39.

Direct Agreements

Application

41. (1) Sections 42 and 43 apply to direct agreements if the consumer's total potential payment obligations under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Transition

(2) Sections 42 and 43 apply to direct agreements entered into on or after the day this section is proclaimed in force.

Same

(3) The Consumer Protection Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to direct sales contracts entered into before its repeal.

Requirements for direct agreements

42. Every direct agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

43. (1) A consumer may, without any reason, cancel a direct agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a direct agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 42.

Remote Agreements

Application

44. Sections 45 to 47 apply to remote agreements if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Disclosure of information

45. Before a consumer enters into a remote agreement, the supplier shall disclose the prescribed information to the consumer and shall satisfy the prescribed requirements.

Copy of remote agreement

46. (1) A supplier shall deliver to a consumer who enters into a remote agreement a copy of the agreement in writing within the prescribed period after the consumer enters into the agreement.

Content of remote agreement

(2) The copy of the remote agreement shall include such information as may be prescribed.

Deemed supply of remote agreement

(3) For the purposes of subsection (1), a supplier is considered to have delivered a copy of the remote agreement to the consumer if the copy is delivered in the prescribed manner.

Cancellation of remote agreement

47. (1) A consumer may cancel a remote agreement at any time from the date the agreement is entered into until seven days after the consumer receives a copy of the agreement if the supplier fails to comply with section 45.

Same

(2) A consumer may cancel a remote agreement within one year after the date the agreement is entered into if the supplier does not provide the consumer with a copy of the agreement pursuant to section 46.

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

Definitions

48. In this Part,

"consumer report", "credit information", "file" and "personal information" each have the same meaning as in section 1 of the Consumer Reporting Act; ("rapport sur le consommateur", "renseignements sur la solvabilité", "dossier", "renseignements personnels")

"credit repair" means services or goods that are intended to improve a consumer report, credit information, file or personal information, including a credit record, credit history or credit rating; ("redressement de crédit")

"credit repairer" means,

(a) a supplier of credit repair, or

(b) a person who holds themself out as a person described in clause (a); ("redresseur de crédit")

"regulated operator" means,

(a) a person who is a credit repairer or a loan broker, or

(b) a supplier who supplies such goods or services as may be prescribed or a person who holds themself out as a supplier of such goods or services. ("exploitant réglementé")

Requirements for consumer agreements

49. Every consumer agreement for loan brokering, credit repair or for the supply of such other goods or services as may be prescribed shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Advance payments prohibited

50. (1) No regulated operator shall require or accept any payment or any security for a payment, directly or indirectly, from or on behalf of a consumer unless and until,

(a) in respect of loan brokering, the consumer receives the loan of money that the loan broker has assisted to arrange;

(b) in respect of credit repair, the credit repairer causes a material improvement to the consumer report, credit information, file, personal information, credit record, credit history or credit rating of the consumer; or

(c) in respect of the supply of such other goods or services as may be prescribed, the prescribed requirements are met.

Security arrangement void

(2) Every arrangement by which a regulated operator takes security in contravention of subsection (1) is void.

Cancellation: cooling-off period

51. (1) A consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may, without any reason, cancel the agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may cancel the agreement within one year after the date of entering into it if the consumer does not receive a copy of the agreement that meets the requirements under section 49.

Officers, directors

52. The officers and directors of a regulated operator are jointly and severally liable for any remedy in respect of which a person is entitled to commence a proceeding against the operator.

Prohibited representations

53. A regulated operator shall not communicate or cause to be communicated any representation that is prescribed as a prohibited representation.

Transition

54. (1) Sections 48 to 53 apply to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Loan Brokers Act, 1994, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to all agreements to assist a consumer in obtaining a loan of money entered into before its repeal.

Same

(3) Sections 13.1 to 13.8 of the Consumer Reporting Act, as they existed immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to all consumer transactions that occurred before their repeal.

PART VI
REPAIRS TO MOTOR VEHICLES
AND OTHER GOODS

Definitions

55. In this Part,

"estimate" means an estimate of the total cost of work on and repairs to the goods being repaired; ("devis")

"repairer" means a supplier who works on or repairs vehicles or other prescribed goods; ("réparateur")

"vehicle" means a motor vehicle as defined in the Highway Traffic Act. ("véhicule")

Estimates

56. (1) No repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements.

Same

(2) Despite subsection (1), a repairer may charge for work or repairs without giving an estimate if,

(a) the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;

(b) the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and

(c) the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer.

Estimate fee

57. (1) Subject to subsection (3), no repairer shall charge a fee for an estimate unless the consumer is told in advance that a fee will be charged and the amount of the fee.

Same

(2) A fee for an estimate shall be deemed to include the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer.

Same

(3) A repairer shall not charge a fee for an estimate if the work or repairs in question are authorized and carried out.

Same

(4) Despite subsection (3), a repairer may charge a fee for an estimate if the repairer is unable to obtain, without unreasonable delay, authorization to proceed with the work or repairs and the goods are reassembled before being worked on or repaired so that the goods can be moved in order to free repair space.

Authorization required

58. (1) No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.

Exceeding estimate prohibited

(2) No repairer shall charge, for work or repairs for which an estimate was given, an amount that exceeds the estimate by more than 10 per cent.

Authorization not in writing

59. If an authorization required by section 56, 57 or 58 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements.

Posting signs

60. A repairer shall post the prescribed signs in accordance with the prescribed requirements.

Return of parts

61. (1) Every repairer shall offer to return to the consumer all parts removed in the course of work or repairs and shall return all such parts unless advised when the work or repairs are authorized that the consumer does not require their return.

Parts kept separate

(2) Every repairer shall keep parts removed from goods being repaired separate from the parts removed from any other goods and, if their return is requested by the consumer, shall return the parts in a clean container.

Exception

(3) Subsections (1) and (2) do not apply to,

(a) parts for which there has been no charge for the part or for work on or repair to the part; or

(b) parts replaced under warranty whose return to the manufacturer or distributor is required.

Invoice

62. The repairer shall, on completion of work or repairs, deliver to the consumer an invoice containing the prescribed information in the prescribed manner.

Warranty for vehicles

63. (1) On the repair of a vehicle, every repairer shall be deemed to warrant all new or reconditioned parts installed and the labour required to install them for a minimum of 90 days or 5,000 kilometres, whichever comes first, or for such greater minimum as may be prescribed.

Same

(2) The warranty in subsection (1) is in addition to the deemed and implied conditions and warranties set out in section 9.

Failure of work or repairs under warranty

(3) The person having charge of a vehicle that becomes inoperable or unsafe to drive because of the failure or inadequacy of work or repairs to which a warranty under this section applies may, when it is not reasonable to return the vehicle to the original repairer, have the failure or inadequacy repaired at the closest facility available for the work or repairs.

Recovery of cost of failed work or repairs

(4) When work or repairs are made under subsection (3), the person entitled to a warranty under this section is entitled to recover from the original repairer the original cost of the work or repairs and reasonable towing charges.

Loss of warranty

(5) A consumer who subjects any vehicle part to misuse or abuse is not entitled to the benefit of the warranty on that part.

Same

(6) No repairer shall refuse to reimburse a consumer because of the operation of subsection (5) unless the repairer has reasonable grounds to believe that the part under warranty was subjected to misuse or abuse.

Return of parts

(7) A consumer who is seeking reimbursement under this section shall return, upon the request and at the expense of the original repairer, the defective parts to the original repairer unless, in the circumstances, it is not reasonably possible for the consumer to do so.

Reimbursement

(8) An original repairer who is required to make a payment under this section is entitled to recover from the supplier of a defective part any amount paid to the consumer under subsection (4).

Consistent cost

64. No repairer shall give an estimate or charge an amount for work or repairs that is greater than that usually given or charged by that repairer for the same work or repairs merely because the cost is to be paid, directly or indirectly, by an insurance company licensed under the Insurance Act.

Transition

65. (1) Sections 55 to 64 apply to all consumer agreements for work or repair that are entered into on or after the day this section is proclaimed in force.

Same

(2) The Motor Vehicle Repair Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, applies to agreements for work or repair to a vehicle entered into before its repeal.

PART VII
CREDIT AGREEMENTS

General

Definitions

66. In this Part,

"advance" means value received by the borrower under a credit agreement as determined in the prescribed manner; ("avance")

"annual percentage rate" means the annual percentage rate in respect of a credit agreement that is determined in the prescribed manner; ("taux de crédit")

"borrower" means the consumer who is a party to a credit agreement or prospective credit agreement who, respectively, receives or will receive credit from the other party but does not include a guarantor; ("emprunteur")

"brokerage fee" means the payment that a borrower makes or agrees to make to a loan broker who assists or attempts to assist the borrower in arranging a credit agreement, and includes an amount that the lender deducts from an advance and pays to the broker; ("frais de courtage")

"cost of borrowing" means all amounts that a borrower is required to pay under or as a condition of entering into a credit agreement other than,

(a) a payment or repayment of a portion of the principal under the agreement as prescribed, and

(b) prescribed charges; ("coût d'emprunt")

"credit agreement" means a consumer agreement under which a lender extends credit to a borrower and includes a loan of money, a supplier credit agreement and a consumer agreement under which a loan of money or supplier credit agreement may occur in the future, but does not include an agreement under which a lender extends credit on the security of a mortgage of real property or consumer agreements of a prescribed type; ("convention de crédit")

"default charge" means a charge imposed on a borrower who does not make a payment as it comes due under a credit agreement or who does not comply with any other obligation under a credit agreement, but does not include interest on an overdue payment; ("frais de défaut")

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

"floating rate" means a rate that bears a specified mathematical relationship to a public index that meets the prescribed requirements; ("taux variable")

"lender" means a supplier who is a party to a credit agreement or prospective credit agreement who, respectively, extends or will extend credit to the borrower and includes a credit card issuer; ("prêteur")

"optional service" means a service that is offered to a borrower in connection with a credit agreement and that the borrower does not have to accept in order to enter into the agreement; ("service facultatif")

"supplier credit agreement" means a consumer agreement, other than a consumer agreement involving leases to which Part VIII applies, under which a supplier or an associate of the supplier, extends fixed credit to a consumer to assist the consumer in obtaining goods or services, other than credit, from the supplier; ("convention de crédit fournisseur")

"supplier creditor" means the supplier or an associate of a supplier in a supplier credit agreement. ("créancier fournisseur")

Non-application of Part

67. (1) This Part does not apply to a supplier credit agreement that,

(a) requires the borrower to make payment in full in a single payment within a certain period after the supplier delivers a written invoice or statement of account to the borrower;

(b) is unconditionally interest-free during the period for payment described in clause (a);

(c) does not provide for any non-interest charges;

(d) is unsecured apart from liens on the goods or services supplied through the agreement that may arise by operation of law; and

(e) the supplier cannot assign in the ordinary course of business other than as security.

Obligations of loan brokers

(2) If a loan broker assists or attempts to assist in the arrangement of credit and the creditor is not in the business of supplying credit, the obligations that this Part would impose on a lender shall be deemed to be obligations of the loan broker and not the creditor, except as prescribed.

Initial disclosure statement

(3) If the borrower pays or is liable to pay a brokerage fee, the initial disclosure statement for the credit agreement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Transitional

(4) Section 76 and subsection 79 (1) do not apply to a credit agreement that the parties have entered into before this section comes into force and sections 24, 25 and 28 of the Consumer Protection Act, as they read immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to that agreement.

Agreement for credit card

68. (1) Despite section 13, a consumer who applies for a credit card without signing an application form or who receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.

Liability

(2) A consumer described in subsection (1) is not liable to pay the lender any amount in respect of the credit card received in the circumstances described in that subsection until the consumer uses the card.

Limiting liability for unauthorized charges

69. The maximum liability of a borrower for unauthorized charges under a credit agreement for open credit may be limited as prescribed.

Consequence of non-disclosure

70. A borrower under a credit agreement is not liable to pay the lender,

(a) the cost of borrowing under a credit agreement if the borrower receives no statements required by this Part; or

(b) as part of the cost of borrowing, any amount in excess of the amounts specified in the statements that this Part requires to be delivered to the borrower in respect of the agreement.

Correcting errors

71. If there is an error in a statement of account issued under a credit agreement for open credit, the lender shall correct the error in accordance with the prescribed requirements.

Required insurance

72. (1) A borrower who is required under a credit agreement to purchase insurance may purchase it from any insurer who may lawfully provide that type of insurance, except that the lender may reserve the right to disapprove, on reasonable grounds, an insurer selected by the borrower.

Disclosure by lender

(2) A lender who offers to provide or to arrange insurance required under a credit agreement shall at the same time disclose to the borrower in writing that the borrower may purchase the insurance through an agent or an insurer of the borrower's choice.

Termination of optional services

73. (1) A borrower may terminate an optional service of a continuing nature provided by the lender or an associate of the lender on giving 30 days notice or such shorter period of notice as is specified in the agreement under which the service is provided.

Liability of borrower

(2) A borrower who terminates an optional service in accordance with subsection (1) is not liable for charges relating to any portion of the service that has not been provided at the time of termination and is entitled to a refund of amounts already paid for those charges.

Notice

(3) Notice under subsection (1) may be given in any way as long as it indicates the intention of the borrower to terminate the optional service and section 92 applies, with necessary modification, to such notice.

Deferral of payments

74. (1) If the lender under a credit agreement invites the borrower to defer making a payment that would otherwise be due under the agreement, the invitation must disclose whether or not interest will accrue on the unpaid amount during the period of the deferral and, if interest will accrue, the invitation must also disclose the interest rate.

Waiver of interest

(2) If the lender does not comply with subsection (1), the lender shall be deemed to have waived the interest that would otherwise accrue during the period.

Default charges

75. A lender is not entitled to impose on a borrower under a credit agreement default charges other than,

(a) reasonable charges in respect of legal costs that the lender incurs in collecting or attempting to collect a required payment by the borrower under the agreement;

(b) reasonable charges in respect of costs, including legal costs, that the lender incurs in realizing a security interest or protecting the subject-matter of a security interest after default under the agreement; or

(c) reasonable charges reflecting the costs that the lender incurs because a cheque or other instrument of payment given by the borrower under the agreement has been dishonoured.

Prepayment

76. (1) A borrower is entitled to pay the full outstanding balance under a credit agreement at any time without any prepayment charge or penalty.

Refund or credit to borrower

(2) If a borrower prepays the full outstanding balance under a credit agreement for fixed credit, the lender shall refund to the borrower or credit the borrower with the portion of the charges, other than charges on account of interest, that was paid by the borrower under the agreement or that was added to the balance under the agreement.

Determining refund or credit

(3) The portion of the charges, other than charges on account of interest, that is to be refunded or credited to the borrower under subsection (2) shall be determined in the prescribed manner.

Partial prepayment

(4) A borrower is entitled to prepay a portion of the outstanding balance under a credit agreement for fixed credit on any scheduled date of the borrower's required payments under the agreement or once in any month without any prepayment charge or penalty.

No credit to borrower

(5) A borrower who makes a payment under subsection (4) is not entitled to a credit for the charges, other than charges on account of interest, that the borrower was required to pay under the agreement or that were added to the outstanding balance under the agreement.

Disclosure

Representations

77. No lender shall make representations or cause representations to be made with respect to a credit agreement, whether orally, in writing or in any other form, unless the representations comply with the prescribed requirements.

Disclosure of brokerage fee

78. (1) If a lender deducts a brokerage fee from an advance, the lender's initial disclosure statement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Loan broker's statement

(2) If a loan broker takes an application from a borrower for a credit agreement and sends it to a lender, the loan broker shall deliver a statement to the borrower containing the information required in the initial disclosure statement referred to subsection (1), any other information required by this Part and any prescribed information.

Lender adopting loan broker's statement

(3) If a loan broker has delivered a statement to the borrower, the lender may adopt it as his, her or its own initial disclosure statement or may elect to deliver a separate initial disclosure statement to the borrower.

Initial disclosure statement

79. (1) Every lender shall deliver an initial disclosure statement for a credit agreement to the borrower at or before the time that the borrower enters into the agreement.

Contents of statement, fixed credit

(2) The initial disclosure statement for a credit agreement for fixed credit shall disclose the prescribed information.

Contents of statement, open credit

(3) The initial disclosure statement for a credit agreement for open credit shall disclose the prescribed information.

Brokerage fee

(4) If a loan broker assists in arranging a credit agreement, the initial disclosure statement shall disclose the prescribed information.

Subsequent disclosure: fixed credit

80. (1) If the interest rate in a credit agreement for fixed credit is a floating rate, the lender shall, at least once every 12 months after entering into the agreement, deliver to the borrower a disclosure statement for the period covered by the statement disclosing the prescribed information.

Increase in interest rate

(2) If the interest rate in a credit agreement for fixed credit is not a floating rate and the agreement allows the lender to change the interest rate, the lender shall, within 30 days after increasing the annual interest rate to a rate that is at least 1 per cent higher than the rate most recently disclosed to the borrower, deliver to the borrower a disclosure statement disclosing the prescribed information.

Insufficient scheduled payments

(3) The lender shall deliver to the borrower notice if the amount of the borrower's scheduled payments required by a credit agreement for fixed credit is no longer sufficient to cover the interest accrued under the agreement because the principal set out in the agreement has increased as a result of default charges or the failure of the borrower to make payments under the agreement.

Notice

(4) The notice under subsection (3) shall be in writing, shall disclose the situation and shall be delivered within 30 days after the point when the amount of the scheduled payments is no longer sufficient to cover the accrued interest.

Amendments

(5) If information disclosed in a disclosure statement delivered under this section changes because the parties have agreed to amend a credit agreement, the lender shall deliver a supplementary disclosure statement to the borrower within 30 days after the amendment is made setting out the changed information, subject to subsection (6).

Exception

(6) If an amendment to a credit agreement consists only of a change in the schedule of required payments by the borrower, it is not necessary for the supplementary disclosure statement to disclose any change to the annual percentage rate or any decrease in the total required payments by the borrower or the total cost of borrowing under the agreement.

Subsequent disclosure: open credit

81. (1) Subject to subsection (2), the lender under a credit agreement for open credit shall deliver a statement of account to the borrower at least once monthly after entering into the agreement.

Exception

(2) The lender is not required to deliver a statement of account to the borrower at the end of any period when, since the most recent statement of account, the borrower has received no advances and made no payments under the agreement and,

(a) at the end of the period the outstanding balance payable by the borrower under the agreement is zero; or

(b) the borrower is in default and has been notified that the lender has cancelled or suspended his or her right to obtain advances under the agreement and has demanded payment of the outstanding balance.

Information about account

(3) The lender shall provide to the borrower a telephone number at which the borrower can make inquiries about the borrower's account during the lender's ordinary business hours without incurring any charges for the telephone call.

Contents of statement of account

(4) A statement of account for a credit agreement for open credit shall disclose the prescribed information.

Change in interest rate

(5) A lender under a credit agreement for open credit who, pursuant to the agreement, changes the interest rate under the agreement shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, in the case of a credit agreement that is not for a credit card; and

(b) at least 30 days before the change, in the case of a credit agreement that is for a credit card where the interest rate is not a floating rate.

Other changes

(6) A lender under a credit agreement for open credit who, pursuant to the agreement, changes any of the matters prescribed under subsection 79 (3), other than the interest rate under the agreement, shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, if the change is not a material change, as prescribed; and

(b) at least 30 days before the change, if the change is a material change, as prescribed.

Assignment of Security for Credit

Assignment of negotiable instrument

82. (1) If a person assigns a negotiable instrument given to secure credit, the person shall deliver to the assignee with the negotiable instrument a copy of the statement required by section 79 and, if the person is a supplier creditor, a copy of the consumer agreement for the goods or services that were obtained with credit.

Reassignment of negotiable instrument

(2) Every assignee of a negotiable instrument who reassigns the instrument shall deliver to the person to whom the instrument is being reassigned the statement and the consumer agreement, if any, received by the assignee in respect of the instrument.

Indemnity

(3) If an assignee of a negotiable instrument to which subsection (2) applies is entitled to recover on the instrument from the maker, the maker is entitled to be indemnified by any assignor of the instrument who has not complied with subsection (1) or (2), as the case may be.

Obligations of assignee of lender

83. (1) The assignee of any rights of a person who extends credit has no greater rights than and is subject to the same obligations, liabilities and duties as the assignor, and the provisions of this Act apply equally to such assignee.

Same

(2) Despite subsection (1), a borrower shall not recover from, or be entitled to set off against, an assignee of the person who extended credit an amount greater than the balance owing on the consumer agreement at the time of the assignment, and, if there have been two or more assignments, the borrower shall not recover from an assignee who no longer holds the benefit of the consumer agreement an amount that exceeds the payments made by the borrower to that assignee.

Order to pay indemnity

84. (1) If an assignor of a negotiable instrument is convicted of a contravention of section 82, the Ontario Court of Justice making the conviction may order that the person convicted is liable to indemnify the maker under subsection 82 (3).

Filing indemnity order in court

(2) If an indemnity order is made under subsection (1) in favour of a person who is or becomes liable under a judgment of a court to an assignee of the negotiable instrument in respect of which the indemnity order was made, the person entitled to the indemnity may file the indemnity order in the court office of the court in which the judgment was issued.

Default judgment

(3) Upon the filing of the indemnity order, the local registrar or clerk of the court shall issue a default judgment in favour of the person entitled to the indemnity and against the person required by the indemnity order to give the indemnity, and the amount of the default judgment shall be the amount of the judgment referred to in subsection (1) and costs together with the costs of issuing the default judgment, or such lesser amount as the person entitled to the indemnity by requisition requests.

Setting aside or variation of default judgment

(4) Upon application, the court in which the default judgment is issued may set aside the default judgment or may determine the amount of the indemnity or make an order of reference for the purpose and may vary the amount of the default judgment.

Allowance for trade-in subject to adjustment

85. (1) If the amount to be paid by a consumer under a consumer agreement is determined after an allowance for a trade-in and is stated in the consumer agreement to be subject to adjustment after the existence or amount of liens against the trade-in is ascertained or confirmed, any statements of the terms of payment and the cost of borrowing, as required under this Act, shall be based upon the amount as determined upon the information provided by the consumer.

Further adjustments

(2) If there is an additional adjustment to the amount to be paid by a consumer under a consumer agreement to which subsection (1) applies after the adjustment under subsection (1), the consumer agreement shall not be adjusted to change,

(a) the percentage rate by which the cost of borrowing is expressed;

(b) the total number of instalments required to pay the total indebtedness; or

(c) the price shown in the consumer agreement.

PART VIII
LEASING

Definitions

86. In this Part,

"lease" means a consumer agreement for the lease of goods, other than a consumer agreement for the lease of goods in connection with a residential tenancy agreement, and "lessor" and "lessee" have a corresponding meaning; ("convention de location", "bailleur", "preneur")

"lease term" means the period during which the lessee is entitled to retain possession of the leased goods; ("durée de la convention")

"residual obligation lease" means a lease under which the lessor may require the lessee at the end of the lease term to pay the lessor an amount based in whole or in part on the difference, if any, between,

(a) the estimated wholesale value of the leased goods at the end of the lease term, and

(b) the realizable value of the leased goods at the end of the lease term. ("convention à obligation résiduelle")

Application of Part

87. This Part applies to,

(a) leases for a fixed term of four months or more;

(b) leases for an indefinite term or that are renewed automatically until one of the parties takes positive steps to terminate them; and

(c) residual obligation leases.

Advertising

88. Any person who makes representations or causes representations to be made about the cost of a lease, whether orally, in writing or in any other form, shall do so in accordance with the prescribed requirements.

Disclosure statement

89. (1) Every lessor shall deliver a disclosure statement for a lease to the lessee before the earlier of,

(a) the time that the lessee enters into the lease; and

(b) the time that the lessee makes any payment in connection with the lease.

Contents of statement

(2) The disclosure statement for a lease shall disclose the prescribed information.

Compensation re: termination of lease

90. (1) The maximum amount of compensation that may be charged to a lessee by a lessor for termination of a lease before the end of the lease term may be limited as prescribed.

Residual obligation lease

(2) The maximum liability of the lessee at the end of the term of a residual obligation lease after returning the leased goods to the lessor shall be the amount calculated in the prescribed manner.

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

Application

91. This Part does not apply to remedies claimed in respect to unfair practices under Part III.

Form of consumer notice

92. (1) If this Act requires a consumer to give notice to a supplier to request a remedy, the consumer may do so by giving notice in accordance with this section.

Same

(2) The notice may be expressed in any way, as long as it indicates the intention of the consumer to seek the remedy being requested and complies with any requirements that may be prescribed.

Delivery of notice

(3) The notice may be delivered by any means.

Notice given when sent

(4) If notice is given other than by personal service, the notice shall be deemed to be given when sent.

Address

(5) The consumer may send or deliver the notice to the address set out in a consumer agreement or, if the consumer did not receive a written copy of a consumer agreement or the address was not set out in the written agreement, the consumer may send or deliver the notice,

(a) to any address of the supplier on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the supplier known by the consumer.

Consumer agreements not binding

93. A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations.

Cancellation

94. (1) If a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel the agreement by giving notice in accordance with section 92.

Effective time

(2) The cancellation takes effect when the consumer gives notice.

Effect of cancellation

95. The cancellation of a consumer agreement in accordance with this Act operates to cancel, as if they never existed,

(a) the consumer agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the consumer agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the consumer agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended arranged or facilitated by the person with whom the consumer reached the consumer agreement, or

(ii) otherwise related to the consumer agreement.

Obligations on cancellation

96. (1) If a consumer cancels a consumer agreement, the supplier shall, in accordance with the prescribed requirements,

(a) refund to the consumer any payment made under the agreement or any related agreement; and

(b) return to the consumer in a condition substantially similar to when they were delivered all goods delivered under a trade-in arrangement or refund to the consumer an amount equal to the trade-in allowance.

Repossession or return of goods

(2) Upon cancelling a consumer agreement, the consumer, in accordance with the prescribed requirements and in the prescribed manner, shall permit the goods that came into the consumer's possession under the agreement or a related agreement to be repossessed, shall return the goods or shall deal with them in such manner as may be prescribed.

Reasonable care

(3) If a consumer cancels a consumer agreement, the consumer shall take reasonable care of the goods delivered to the consumer under the agreement or a related agreement for the prescribed period.

To whom obligation owed

(4) The consumer owes the obligation described in subsection (3) to the person entitled to possession of the goods at the time in question.

No further obligation

(5) Compliance with this section discharges the consumer from all obligations relating to the goods and the consumer is under no other obligation, whether arising by contract or otherwise, to take care of the goods.

Right of action

(6) If a consumer has cancelled a consumer agreement and the supplier has not met the supplier's obligations under subsection (1), the consumer may commence an action.

Title to goods under trade-in arrangement

97. If the consumer recovers an amount equal to the trade-in allowance under subsection 96 (1) and the title of the consumer to the goods delivered under the trade-in arrangement has not passed from the consumer, the title to the goods vests in the person entitled to the goods under the trade-in arrangement.

Illegal payments

98. (1) If a supplier has received a payment in contravention of this Act, the consumer who made the payment may demand a refund of the payment by giving notice in accordance with section 92 within one year after making the payment.

Refund of illegal payment

(2) A supplier who receives a notice demanding a refund of a payment that was received in contravention of this Act, shall refund the payment within the prescribed period of time.

Right of action

(3) The consumer who made a payment that was received in contravention of this Act may commence an action to recover the payment in accordance with section 100.

Consumer's recourse re: credit card charges

99. (1) A consumer who has charged to a credit card account all or any part of a payment described in subsection (2) may request the credit card issuer to cancel or reverse the credit card charge and any associated interest or other charges.

Types of payment

(2) Subsection (1) applies to,

(a) a payment in respect of a consumer agreement that has been cancelled under this Act;

(b) a payment that was received in contravention of this Act; and

(c) a payment that was collected in respect of unsolicited goods or services for which payment is not required under section 13.

Timing of request

(3) A consumer may make a request under subsection (1) if the consumer has cancelled a consumer agreement or demanded a refund in accordance with this Act, and the supplier has not refunded all of the payment within the required period.

Form and delivery of notice

(4) A request under subsection (1) shall be in writing and shall be delivered to the credit card issuer, in the prescribed period, in accordance with section 92.

Obligation of credit card issuer

(5) The credit card issuer shall,

(a) acknowledge the consumer's request within the prescribed period; and

(b) if the request meets the requirements of subsection (4),

(i) cancel or reverse the credit card charge and any associated interest or other charges within the prescribed period, or

(ii) send a written notice to the consumer, after having conducted an investigation, explaining the reasons why the credit card issuer is of the opinion that the consumer is not entitled to cancel the consumer agreement or to demand a refund under this Act.

Right of action

(6) A consumer may commence an action against a credit card issuer to recover a payment and associated interest and other charges to which the consumer is entitled under this section.

Other prescribed payment systems

(7) If a consumer charges all or part of a payment described in subsection (2) to a prescribed payment system, the consumer may request that the charge be cancelled or reversed and this section applies with necessary modifications to the cancellation or reversal of such a charge.

Action in Superior Court of Justice

100. (1) If a consumer has a right to commence an action under this Act, the consumer may commence the action in the Superior Court of Justice.

Judgment

(2) If a consumer is successful in an action, unless in the circumstances it would be inequitable to do so, the court shall order that the consumer recover,

(a) the full payment to which he or she is entitled under this Act; and

(b) all goods delivered under a trade-in arrangement or an amount equal to the trade-in allowance.

Same

(3) In addition to an order under subsection (2), the court may order exemplary or punitive damages or such other relief as the court considers proper.

Waiver of notice

101. If a consumer is required to give notice under this Act in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

Powers of Minister

102. (1) The Minister may,

(a) disseminate information for the purpose of educating and advising consumers;

(b) provide information to consumers about the use of alternate dispute resolution techniques as a means of resolving disputes arising out of consumer transactions; and

(c) enforce this Act and other legislation for the protection of consumers.

Delegation of powers and duties

(2) The Minister may delegate in writing any of his or her powers or duties under subsection (1) to the Deputy Minister of Consumer and Business Services or to any persons employed in a specified capacity in the Ministry.

Same

(3) The Deputy Minister of Consumer and Business Services may in writing delegate any of the powers or duties delegated to the Deputy Minister by the Minister under subsection (2) to any person employed in a specified capacity in the Ministry.

Enforcement agreements

(4) For the purpose of enforcing this Act and other legislation for the protection of consumers, the Minister may,

(a) enter into agreements with law enforcement agencies in Canada and other jurisdictions; and

(b) for the purposes of clause (a), share and exchange information concerning breaches or possible breaches of this Act or other legislation for the protection of consumers.

Duties of Director

103. (1) The Director shall perform such duties and exercise such powers as are given to or conferred upon the Director under this or any other Act.

Same

(2) The Director shall maintain, in accordance with the prescribed requirements, a public record of the following:

1. Undertakings of voluntary compliance entered into under this Act.

2. Compliance orders issued under this Act.

3. Orders made under section 109.

4. Any other prescribed document or information.

Same

(3) The Director shall publish such documents or information as are prescribed.

Transition

(4) Records that the Director maintained available for public inspection as required by section 5 of the Business Practices Act before its repeal are deemed to be records that are to be maintained for purposes of subsection (2).

Fees

104. (1) The Minister may by order require the payment of fees for the inspection of public records maintained under section 103 and may approve the amount of those fees.

Same

(2) Orders made under subsection (1) are not regulations within the meaning of the Regulations Act.

PART XI
GENERAL

Ministry receives complaints and makes inquiries

105. The Ministry may,

(a) receive complaints concerning conduct that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether the conduct constitutes an offence or not; and

(b) make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate, concerning any matter that comes to its attention that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether the matter constitutes an offence or not.

Appointment of investigators

106. (1) The Director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 107 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

107. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 106 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling, unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

108. (1) Although a warrant issued under section 107 would otherwise be required, an investigator may exercise any of the powers described in subsection 107 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

False, misleading or deceptive representation

109. (1) If the Director believes on reasonable grounds that any person is making a false, misleading or deceptive representation in respect of any consumer transaction in an advertisement, circular, pamphlet or material published by any means, the Director may,

(a) order the person to cease making the representation; and

(b) order the person to retract the representation or publish a correction of equal prominence to the original publication.

Real property

(2) Despite clause 2 (2) (f), this section applies to any representations involving real property.

Order effective

(3) The order takes effect immediately upon being made.

Service

(4) The Director shall serve the order, together with written reasons for it, on the person named in it.

Request for a hearing

(5) The order shall inform the person named in it that the person may request a hearing before the Tribunal by
mailing or delivering a written notice of request for a hearing to the Director and the Tribunal within 15 days after service of the order.

Hearing date

(6) If the person gives a notice of request for a hearing within the allowed time, the Tribunal shall hold a hearing.

Stay of order

(7) The Tribunal may stay the order until it confirms or sets aside the order under subsection (9).

Parties

(8) The Director, the person who requested the hearing and the persons whom the Tribunal specifies are parties to the hearing.

Powers of Tribunal

(9) After holding the hearing, the Tribunal may,

(a) confirm the order with the amendments, if any, that the Tribunal considers proper to give effect to the purposes of the Act; or

(b) set aside the order.

Same

(10) In confirming or setting aside the order, the Tribunal may substitute its opinion for that of the Director.

Appeal

(11) Even if the person named in an order made under this section appeals it under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Freeze order

110. (1) If the conditions in subsection (2) are met, the Director may, in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a supplier or former supplier to hold those funds or assets;

(b) order a supplier or former supplier to refrain from withdrawing any asset or trust fund from a person having them on deposit or controlling them; or

(c) order a supplier or former supplier to hold any asset or trust fund of a consumer or other person in trust for the person entitled to it.

Conditions

(2) The Director may make an order under subsection (1) if he or she believes that it is advisable for the protection of consumers and,

(a) a search warrant has been issued under this Act;

(b) an order has been made under section 111 or 112; or

(c) there has been an undertaking of voluntary compliance under section 114.

Person engaged in unfair practice

(3) Subsections (1) and (2) apply with necessary modifications to any person, whether or not the person is or was a supplier, if the person has engaged or is engaging in unfair practices under this Act.

Limitation

(4) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(5) The Director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(6) Subsection (1) does not apply if the person files with the Director, in such manner and amount as the Director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(7) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund subject to the order.

Notice

(8) If an order is made under this section, the Director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice and the notice has the same effect as the registration of a certificate of pending litigation except that the Director may in writing revoke or modify the notice.

Cancellation or discharge application

(9) A person in respect of whom an order has been made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (8) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(10) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part, if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of consumers or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(11) The applicant, the Director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(12) If the Director has made an order under subsection (1) or registered a notice under subsection (8), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(13) An application by the Director under this section may be made without notice to any other person.

Compliance order

111. (1) The Director may propose to make an order directing a person to comply with the Act if the Director believes on reasonable grounds that the person has engaged or is engaging in any activity that contravenes any provision under this Act, whether the activity constitutes an offence or not.

Notice

(2) If the Director proposes to make an order under subsection (1), the Director shall serve notice of the proposed order, together with written reasons, on the person.

Request for hearing

(3) The notice shall state that the person is entitled to a hearing by the Tribunal if the person mails or delivers, within 15 days after the notice under subsection (2) is served, notice in writing requiring a hearing to the Director and the Tribunal.

No hearing required

(4) If the person does not require a hearing in accordance with subsection (3), the Director may make the order.

Hearing

(5) If the person requires a hearing in accordance with subsection (3), the Tribunal shall hold the hearing and may order the Director to make the proposed order or to refrain from making the proposed order or may make an order of its own in substitution for that of the Director.

Conditions

(6) The Tribunal may attach such conditions to its order as it considers proper.

Parties

(7) The Director and the person who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.

Order for immediate compliance

112. (1) Despite section 111, the Director may make an order requiring immediate compliance with this Act if, in the Director's opinion, it is the public interest to do so and subject to subsection (2), such an order takes effect immediately.

Notice of order

(2) If the Director makes an order for immediate compliance, he or she shall serve on the person named in the order a notice that includes the order and the written reasons for making it and the information required in a notice referred to in subsection 111 (3).

Hearing

(3) When a person named in the order requires a hearing in accordance with the notice under subsection (2), the Tribunal shall hold the hearing and may confirm or set aside the order or exercise such other powers as may be exercised in a proceeding under section 111.

Expiration of order

(4) If a hearing by the Tribunal is required,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(5) Despite subsection (4), if it is satisfied that the conduct of the person named in the order has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Parties

(6) The Director and the person who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.

Appeal

113. Even if, under section 11 of the Licence Appeal Tribunal Act, 1999, a party to a proceeding before the Tribunal appeals an order of the Tribunal made under section 111 or 112, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Undertaking of voluntary compliance

114. (1) At any time before all rights of appeal are exhausted or the time for appeals has expired without an appeal being commenced, any person against whom the Director has made or is considering making an order to comply under section 111 or 112 may enter into a written undertaking of voluntary compliance,

(a) to not engage in the specified act after the date of the undertaking;

(b) to provide compensation to any consumer who has suffered a loss;

(c) to publicize the undertaking or the actions being undertaken as a result of the undertaking;

(d) to pay any cost incurred in investigating the person's activities, any legal costs incurred in relation to the person's activities and any cost associated with the undertakings; and

(e) to take any such action as the Director considers appropriate in the circumstances.

Undertaking deemed order

(2) When an undertaking of voluntary compliance is accepted by the Director, the undertaking has and shall be given for all purposes of this Act the force and effect of an order made by the Director.

Security for any undertaking

(3) The Director may require any person who is giving an undertaking of voluntary compliance to provide, in such manner and amount as the Director determines, security in the form of,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Release of security

(4) The bond and any collateral security required under subsection (3) shall not be released until the Director is satisfied that the person has fulfilled the undertaking.

Restraining orders

115. (1) If it appears to the Director that a person is not complying with this Act or the regulations or an order made under this Act, the Director may apply to the Superior Court of Justice for an order directing that person to comply and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the Director, whether or not the Director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offences

116. (1) A person is guilty of an offence if the person,

(a) fails to comply with any order, direction or other requirement under this Act; or

(b) contravenes or fails to comply with,

(i) in respect of Part II, Consumer Rights and Warranties, subsection 10 (1), section 12 and subsections 13 (2) and (7),

(ii) in respect of Part III, Unfair Practices, subsection 17 (1),

(iii) in respect of Part IV, Rights and Obligations Respecting Specific Consumer Agreements, subsection 30 (2), clauses 33 (a) and (b), subsections 34 (1) and (2) and 36 (1),

(iv) in respect of Part V, Sectors Where Advance Fee Prohibited, section 49, subsection 50 (1) and section 53,

(v) in respect of Part VI, Repairs to Motor Vehicles and Other Goods, subsections 56 (1), 57 (1) and (3), 58 (1) and (2), section 60, subsections 61 (1) and (2) and sections 62 and 64,

(vi) in respect of Part VII, Credit Agreements, subsection 67 (3), section 71, subsections 72 (2) and 76 (2), section 77 and subsections 78 (1) and (2), 79 (1), 80 (1), (2), (3) and (5), 81 (1), (3), (5) and (6) and 82 (1) and (2),

(vii) in respect of Part VIII, Leasing, section 88 and subsection 89 (1), and

(viii) in respect of Part IX, Procedures for Consumer Remedies, subsections 96 (1), 98 (2) and 99 (5).

Same

(2) A person who contravenes or fails to comply with a provision of a regulation made under this Act is guilty of an offence.

Corporation

(3) An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1) or (2).

Attempt

(4) Any person who attempts to commit any offence referred to in subsection (1) or (2) is guilty of an offence.

Penalties

(5) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(6) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Director.

Orders for compensation, restitution

117. If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

Default in payment of fines

118. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the Director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

Where payment made

(2) Within 10 days after the Director has notice that the fine has been paid in full, the Director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Business Practices Act, the Consumer Protection Act, the Loan Brokers Act, 1994, the Motor Vehicle Repair Act or the Prepaid Services Act despite the repeal of the Act, the Director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

119. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the Director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the Director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the Director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the Director under subsection (1) relates to real property, the Director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The Director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the Director shall ensure the funds he or she receives as result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the Director has knowledge of the payment in full of the fine, the Director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

Matters confidential

120. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation that protects consumers or to any other entity to which the administration of legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose of the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service by the Director of notice or order

121. (1) Any notice or order required to be given or served by the Director under this Act is sufficiently given or served if,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the Director can prove receipt of the notice or order.

Deemed service

(2) Where service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsection (1), the Tribunal may order any other method of service.

Certificate as evidence

122. (1) For all purposes in any proceeding, a statement purporting to be certified by the Director is, without proof of the office or signature of the Director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the filing or non-filing of any document or material required or permitted to be filed; or

(b) the time when the facts upon which the proceedings are based first came to the knowledge of the Director.

Same

(2) A statement purporting to be certified by an official acting under legislation that protects consumers in another jurisdiction, as prescribed, shall have the same force and effect as a certificate of the Director issued under subsection (1).

Proof of document

(3) Any document made under this Act that purports to be signed by the Director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the Director without proof of the office or signature of the Director.

Lieutenant Governor in Council regulations:
general

123. (1) The Lieutenant Governor in Council may make regulations,

(a) prescribing anything in this Act that is referred to as being prescribed;

(b) prescribing the form and content of consumer agreements, notices, invoices or any documents required under this Act;

(c) exempting any supplier, consumer transaction, goods or services, any combination of any of them or any class of any of them from any provision of this Act or the regulations, and prescribing conditions or restrictions that apply in respect of an exemption;

(d) governing trade-ins and trade-in arrangements made under consumer agreements or arising from consumer agreements;

(e) respecting what constitutes a material change in the periodic supply or ongoing supply of goods or services;

(f) requiring suppliers to make returns and furnish information to the Director as is prescribed;

(g) requiring information that is required or permitted to be furnished to the Director or that is contained in any form or return to be verified by affidavit;

(h) governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act;

(i) providing for any transitional matter necessary for the effective implementation of this Act or the regulations.

Lieutenant Governor in Council regulations: Part I

(2) The Lieutenant Governor in Council may make regulations,

(a) prescribing a tribunal for the purposes of this Act;

(b) prescribing professional services that are exempted from the application of this Act;

(c) excluding the application of provisions of this Act to consumer agreements that meet the criteria of more than one type of agreement for purposes of section 4.

Lieutenant Governor in Council regulations: Part II

(3) The Lieutenant Governor in Council may make regulations prescribing the period in which a supplier is to refund a payment to a consumer who has demanded a refund.

Lieutenant Governor in Council regulations: Part III

(4) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for the notice to rescind an agreement or the notice to seek recovery under Part III;

(b) prescribing the period in which to respond to a consumer who has given notice to rescind an agreement or notice to seek recovery.

Lieutenant Governor in Council regulations: Part IV

(5) The Lieutenant Governor in Council may make regulations,

(a) prescribing the total potential payment obligations, excluding the cost of borrowing, that must be exceeded for Part IV to apply to consumer agreements included in that Part;

(b) prescribing the circumstances under which the effect of the cancellation of a consumer agreement to which Part IV applies and the obligations arising as a result of the cancellation of the agreement will be limited and prescribing the nature of the limitations;

(c) for consumer agreements to which Part IV applies, governing disclosure, contents of consumer agreements and requirements for making, renewing, amending or extending consumer agreements;

(d) prescribing matters as being personal development services;

(e) governing remote agreements;

(f) governing internet agreements.

Lieutenant Governor in Council regulations: Part V

(6) The Lieutenant Governor in Council may make regulations,

(a) prescribing goods and services for the purposes of Part V;

(b) prescribing conditions that must be met to permit payment for the supply of prescribed goods and services;

(c) prescribing requirements for making an agreement to which Part V applies;

(d) prescribing prohibited representations for the purposes of Part V.

Lieutenant Governor in Council regulations: Part VI

(7) The Lieutenant Governor in Council may make regulations,

(a) prescribing goods for the purposes of Part VI;

(b) prescribing requirements with which estimates must comply;

(c) prescribing requirements for authorizations that are not given in writing;

(d) prescribing signs that a repairer must post, prescribing requirements for posting the signs and prescribing the contents of the signs and the manner in which the contents are to be presented;

(e) prescribing the information to be contained in an invoice and the manner in which the information is to be presented;

(f) prescribing the minimum warranty for new and reconditioned parts and for labour for the purposes of subsection 63 (1).

Lieutenant Governor in Council regulations: Part VII

(8) The Lieutenant Governor in Council may make regulations,

(a) prescribing the manner in which to determine the value received by a borrower under a credit agreement;

(b) prescribing the manner in which to determine the annual percentage rate;

(c) prescribing payments and repayments and charges that are not included in the cost of borrowing;

(d) excluding types of consumer agreements from credit agreements;

(e) prescribing requirements that must be met by an index for the index to qualify as a public index;

(f) exempting obligations of a lender from application to a loan broker if the loan broker assists or attempts to assist in the arrangement of credit and the creditor is not in the business of supplying credit;

(g) prescribing requirements for correcting errors in statements of account issued under credit agreements for open credit;

(h) prescribing the manner for determining charges that are to be refunded or credited to a borrower;

(i) prescribing requirements for representations made in respect of credit agreements;

(j) prescribing information that is to be included in a loan broker's statement to a borrower;

(k) governing disclosure statements under Part VII;

(l) prescribing the information to be included in a statement of account for a credit agreement for open credit;

(m) prescribing whether or not a change is a material change;

(n) prescribing the maximum liability of a borrower under a credit agreement for a credit card in cases where the borrower has not authorized the use of the card.

Lieutenant Governor in Council regulations: Part VIII

(9) The Lieutenant Governor in Council may make regulations,

(a) in respect of representations made about the cost of a lease;

(b) governing information to be contained in a disclosure statement for a lease, including disclosure of the annual percentage rate in respect of the lease and prescribing the manner of determining the annual percentage rate;

(c) prescribing the manner of determining the maximum liability of a lessee at the end of a term of a residual obligation lease;

(d) limiting the amount of compensation that a lessor may charge the lessee for termination of the lease before the end of the lease term.

Lieutenant Governor in Council regulations: Part IX

(10) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for notices to cancel consumer agreements;

(b) governing obligations of suppliers and consumers arising as the result of the cancellation of a consumer agreement;

(c) prescribing the period of time within which suppliers must refund a payment that was collected in contravention of this Act;

(d) in respect of cancelling or reversing credit card charges;

(e) prescribing other payment systems for the purposes of section 99.

Lieutenant Governor in Council regulations: Part X

(11) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for the public record that must be maintained by the Director and prescribing documents and information that must be kept in such a record;

(b) prescribing information that shall be published by the Director.

Lieutenant Governor in Council regulations: Part XI

(12) The Lieutenant Governor in Council may make regulations,

(a) prescribing Acts under which the Ministry may receive complaints and make inquiries;

(b) prescribing other jurisdictions from which statements may be certified;

(c) prescribing forms of security;

(d) prescribing entities or organizations to which confidential matters may be disclosed.

Retroactive

(13) A regulation under this section may, if it so provides, be effective to a period before it is filed so long as that period commences no earlier than the day this section is proclaimed in force.

General or particular

(14) A regulation under this section may be general or particular in its application.

PART XII
COMMENCEMENT AND SHORT TITLE

Commencement

124. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

125. The short title of the Act set out in this Schedule is the Consumer Protection Act, 2002.

SCHEDULE B
MOTOR VEHICLE
DEALERS ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Application

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

Prohibition

Exemption

PART IV
REGISTRATION

6.

7.

8.

9.

10.

11.

12.

13.

Registration

Registration of motor vehicle dealers

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Temporary suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

14.

15.

16.

17.

18.

19.

20.

21.

22.

Complaints

Inspection by registrar

Inspection of applicant

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Appointment of receiver and manager

Freeze order

PART VI
CONDUCT AND OFFENCES

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

Duty of motor vehicle dealers

Notice of change to registrar

Trust account

Falsifying information

Furnishing false information

False advertising

Order of registrar re: false advertising

Disclosure by motor vehicle dealers

Restraining orders

Offence

33.

34.

35.

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

36.

37.

38.

39.

40.

41.

Matters confidential

Service

Fees

Certificate as evidence

Names of and information concerning registrants

Transition

PART VIII
MOTOR VEHICLE DEALERS
COMPENSATION
FUND

42.

Compensation fund

PART IX
REGULATIONS

43.

44.

Minister's regulations

Lieutenant Governor in Council regulations

PART X
COMMENCEMENT AND SHORT TITLE

45.

46.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Application

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"employ" means to employ, appoint, authorize or otherwise arrange to have another person act on one's behalf, including as an independent contractor; ("employer")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Fund" means the Motor Vehicle Dealers Compensation Fund continued under section 42; ("Fonds")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act is assigned under the Executive Council Act; ("ministre")

"motor vehicle" means an automobile, truck or other vehicle propelled or driven otherwise than by muscular power, including a motorcycle, but not including a motorized snow vehicle or a farm tractor or other self-propelled machinery primarily intended for farming or construction purposes; ("véhicule automobile")

"motor vehicle dealer" means a person who trades in motor vehicles, whether for the person's own account or the account of any other person, or who holds himself, herself or itself out as trading in motor vehicles; ("commerçant de véhicules automobiles")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and the assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"registrant" means a motor vehicle dealer or salesperson that is registered under this Act; ("personne inscrite")

"salesperson" means an individual who is employed by a motor vehicle dealer to trade in motor vehicles on behalf of the motor vehicle dealer; ("vendeur")

"trade" includes buying, selling, leasing, advertising or exchanging an interest in a motor vehicle or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle, and "trade" when used as a noun has a corresponding meaning; ("faire le commerce", "opération", "commerce")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed. ("Tribunal")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed and a maximum of two deputy registrars may be appointed,

(a) by the board of the designated administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar has been appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition

4. (1) No person shall,

(a) act as a motor vehicle dealer unless the person is registered as a motor vehicle dealer under this Act; or

(b) act as a salesperson unless he or she is registered as a salesperson.

Name and place of business

(2) A motor vehicle dealer shall not,

(a) carry on business in a name other than the name in which the motor vehicle dealer is registered; or

(b) invite the public to deal in a place other than the place that is authorized in the registration of the motor vehicle dealer.

Unregistered salesperson

(3) A motor vehicle dealer shall not retain the services of a salesperson unless the salesperson is registered in that capacity.

Supply to unregistered person

(4) A motor vehicle dealer shall not supply motor vehicles to another motor vehicle dealer for the purpose of trading in motor vehicles unless the other motor vehicle dealer is registered in that capacity.

Salespersons

(5) A salesperson shall not trade a motor vehicle on behalf of a motor vehicle dealer unless the salesperson is registered to that dealer.

Exemption

5. An individual who trades in a motor vehicle on his or her own account or on the account of a member of the individual's family is exempt from the registration requirements under section 4, if the motor vehicle is used primarily for the personal use of the individual or a member of his or her family.

PART IV
REGISTRATION

Registration

6. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 9, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Interested person

(4) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of motor vehicle dealers

7. (1) When it registers and on each renewal of its registration, a motor vehicle dealer that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Refusal to register or renew, suspension, etc.

8. (1) Subject to section 9, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 6 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 9, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

9. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration; or

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 37.

Where no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Temporary suspension

10. (1) If the registrar proposes to suspend or revoke a registration under section 9 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 9,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

11. (1) A request for a hearing under section 9 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

12. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

13. (1) In addition to the disclosure required under section 7, every motor vehicle dealer that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the motor vehicle dealer; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

14. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Require the motor vehicle dealer or salesperson to take further educational courses.

4. Refer the matter, in whole or in part, to the discipline committee.

5. Take an action under section 8, subject to section 9.

6. Take further action as he or she considers appropriate in accordance with this Act.

Inspection by registrar

15. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 14; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents, records, motor vehicles and motor vehicle parts of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents, records, motor vehicles or motor vehicle parts that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Inspection of applicant

16. (1) The registrar or a person designated in writing by the registrar may at any reasonable time conduct an inspection of the business premises of an applicant for registration, other than any part of the premises used as a dwelling, for the purpose of ensuring the applicant is entitled to registration under this Act.

Same

(2) Subsections 15 (2) to (7) apply with necessary modifications to an inspection under this section.

Discipline proceedings

17. (1) The board of the administrative authority or, if there is no designated administrative authority, the Minister may establish a discipline committee to hear and determine, in accordance with the prescribed procedures, issues concerning whether registrants have failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) If a discipline committee is established, an appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following, as appropriate:

1. Require the registrant to take further educational courses.

2. In accordance with the terms that may be specified by the committee, require the motor vehicle dealer to fund educational courses for salespersons employed by the dealer or to arrange and fund such educational courses.

3. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

4. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

5. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(6) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(7) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Taking of educational course

(8) The registrant shall take the educational course required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Arranging and funding educational
courses

(9) The motor vehicle dealer shall arrange and fund the educational courses for salespersons employed by the dealer as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(10) The motor vehicle dealer shall fund the educational course for salespersons employed by the dealer as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Public access

(11) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

18. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 19 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

19. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 18 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

20. (1) Although a warrant issued under section 19 would otherwise be required, an investigator may exercise any of the powers described in subsection 19 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Appointment of receiver and manager

21. (1) The director may apply to the Superior Court of Justice for the appointment of a receiver and manager to take possession and control of the business of a registrant if,

(a) an investigation of the registrant has been undertaken under this Act;

(b) the director has made or is about to make an order under section 22;

(c) the director has reasonable grounds to believe that a registrant has failed or is about to fail to provide a contracted and paid for motor vehicle to a customer;

(d) the director is advised that the registrar has proposed to suspend or revoke a registration under section 9 or to temporarily suspend a registration under section 10; or

(e) the director is advised that an investigation under section 5.1 of the Ministry of Consumer and Business Services Act has been ordered.

Order to appoint

(2) The court may make an order for the appointment of a receiver and manager, if it is satisfied that it is in the public interest to have a receiver and manager take control of the business of a registrant.

Notice

(3) The court may make an order under subsection (2) without notice, or if it considers that notice should be given, upon such notice as the court stipulates.

Appointment not longer than 60 days

(4) The order of the court shall provide for the term of the receiver and manager but the term shall not be longer than 60 days.

60-day extensions

(5) Despite subsection (4), the director may, without notice, apply to the court to extend the receiver and manager's term for further terms of not more than 60 days each.

Duties of receiver and manager

(6) The receiver and manager shall,

(a) take possession and control of the assets of the registrant's business;

(b) conduct the business of the registrant; and

(c) take such steps that are, in the opinion of the receiver and manager, necessary for the rehabilitation of the business.

Powers of receiver and manager

(7) The receiver and manager has all the powers of the board of directors of the corporation, if the registrant is a corporation, or of a sole proprietor or all partners if the registrant is not a corporation.

May exclude directors, etc.

(8) Without limiting the generality of subsection (7), the receiver and manager may exclude the directors, officers, employees and agents of the business, interested persons in respect of the business and any other persons connected with the business from the premises and property of the business.

Interested persons

(9) Subsection 6 (4) applies to this section except that the opinion as to whether a person is deemed to be interested in respect of another person is that of the receiver and manager.

Freeze order

22. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund that is subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order is made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Duty of motor vehicle dealers

23. A motor vehicle dealer shall ensure that every salesperson that the motor vehicle dealer employs is carrying out his or her duties in compliance with this Act and the regulations.

Notice of changes to registrar

24. (1) Every motor vehicle dealer shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service;

(b) in the case of a corporation or partnership, any change in the officers or directors; and

(c) the date of commencement or termination of the employment of every salesperson and, in the case of termination of employment of a salesperson, the reason for the termination.

Same

(2) Every salesperson shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; and

(b) the commencement or termination of his or her employment by a motor vehicle dealer and the date of the commencement or termination.

Timing

(3) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(4) Every motor vehicle dealer shall, when required by the registrar with the approval of the director, file a financial statement, certified by a person licensed under the Public Accountancy Act, showing the matters specified by the registrar and signed by the motor vehicle dealer in the case of a sole proprietorship or by an officer of the motor vehicle dealer where the motor vehicle dealer is a partnership or corporation.

Confidential

(5) The information contained in a financial statement filed under subsection (4) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Trust account

25. Every motor vehicle dealer shall maintain, in Ontario, in accordance with the prescribed conditions, an account designated as a trust account in a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a loan or trust corporation, a credit union, as defined in the Credit Unions and Caisses Populaires Act, 1994 or the Province of Ontario Savings Office in which shall be deposited all money that is required to be held in trust, as prescribed, and shall keep at all times the money separate and apart from money belonging to the motor vehicle dealership and shall disburse it in accordance with the conditions as may be prescribed.

Falsifying information

26. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to a trade in motor vehicles.

Furnishing false information

27. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to a trade in a motor vehicle.

False advertising

28. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to trading in motor vehicles.

Order of registrar re: false advertising

29. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 9 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Disclosure by motor vehicle dealers

30. (1) Motor vehicle dealers shall disclose in writing to customers and to motor vehicle dealers such information as may be prescribed and shall make the disclosure at such time as may be prescribed.

Remedies

(2) If a motor vehicle dealer fails to make a disclosure as required under subsection (1) or fails to do so in a timely way, in addition to any other remedies that may be available, the person to whom disclosure should have been made is entitled to such other remedies as may be prescribed.

Restraining orders

31. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

32. (1) A person is guilty of an offence if the person,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 17, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under this Act other than a code of ethics established under section 43.

Corporations

(2) An officer or director of a motor vehicle dealer is guilty of an offence who fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Minimum penalty

(4) The minimum fine upon conviction for an offence under subsection 4 (1) is $2,500.

Limitation

(5) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

33. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer or the Fund, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer or the Fund, as the case may be.

Default in payment of fines

34. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Motor Vehicle Dealers Act, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

35. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

36. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

37. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

38. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

39. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names of and information concerning
registrants

40. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

41. Despite the repeal of the Motor Vehicle Dealers Act, any person who was registered as a motor vehicle dealer or salesperson under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a motor vehicle dealer or salesperson, as the case may be, under this Act until the person is required to renew his, her or its registration under this Act.

PART VIII
MOTOR VEHICLE DEALERS
COMPENSATION
FUND

Compensation Fund

42. (1) The Motor Vehicle Dealers Compensation Fund established under the Motor Vehicle Dealers Act is continued.

Board of trustees

(2) A board of trustees for the Fund shall be appointed in accordance with the prescribed procedures and the board shall manage the Fund in the prescribed manner.

Fund supported by registrants and held in trust

(3) The Fund shall be supported by such levies and payments imposed on registrants as may be prescribed and the Fund shall be held in trust in accordance with the prescribed requirements for the benefit of persons entitled to the payment of claims.

Claims against Fund

(4) A customer of a registrant may make a claim for compensation from the Fund in the prescribed manner.

Entitlement to compensation

(5) If a customer makes a claim for compensation under subsection (4), the customer's entitlement to compensation shall be determined using the prescribed criteria in accordance with the prescribed procedures.

Payments by motor vehicle dealers

(6) In the circumstances as prescribed, a motor vehicle dealer or former motor vehicle dealer shall be required to reimburse the Fund for money paid out to customers as a result of claims against the motor vehicle dealer or former motor vehicle dealer.

Publishing decisions

(7) Decisions in respect of claims to the Fund may be made available to the public in such manner as may be prescribed, but in no case shall the publication of such decisions disclose the identity of an individual making a claim without the individual's prior approval.

Payment of money owed to Fund

(8) The registrar may make such arrangements with registrants or former registrants as may be prescribed for the payment of money owed to the Fund and may impose such penalties and interest, as may be prescribed for the failure to pay money owed to the Fund or the failure to do so in a timely fashion.

Refusal to renew registration

(9) If a registrant is in default of such levies or payments to the Fund as have been prescribed or has failed to reimburse the Fund in the prescribed circumstances and has failed to make arrangements for payment under subsection (8) or has failed to comply with those arrangements, subject to section 9, the registrar may refuse to renew the registrant's registration.

PART IX
REGULATIONS

Minister's regulations

43. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 17 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matters that may be delegated by the Lieutenant Governor in Council under section 44.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the designated administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 44, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

44. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons or class of trades from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

4. prescribing a maximum fine to be imposed for contravention of the code of ethics;

5. prescribing classes and subclasses of registrant and respecting conditions that are applicable to the classes and subclasses;

6. requiring registrants to provide proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

7. respecting educational requirements for registration and renewal of registration and designating entities authorized to develop educational requirements and programs;

8. governing the documents, records and trust accounts that must be kept by motor vehicle dealers, including the manner and location at which they are kept and authorizing the registrar to specify the location at which they must be kept;

9. prescribing procedures and other matters related to complaints under section 14;

10. respecting inspections and investigations under this Act;

11. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

12. governing the disclosure of names of registrants and of other information concerning registrants;

13. prescribing forms of security;

14. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

15. varying the manner in which a notice under subsection 22 (7) or a lien under subsection 35 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

16. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

17. governing the keeping of books and records by registrants, including prescribing the types and classes of information to be retained by registrants and time periods for retaining types and classes of information;

18. prescribing conditions for keeping a trust account;

19. prescribing the information that motor vehicle dealers must disclose to a customer concerning a trade in a motor vehicle and the time or times when disclosures must be made and remedies available to the person to whom such disclosure should have been made;

20. prescribing the period during which a registrant must submit statements in respect of advertising for pre-approval;

21. prohibiting specified alterations of a motor vehicle or any part of a motor vehicle and requiring disclosure of certain alterations or types of alterations;

22. governing contracts for the trade of a motor vehicle;

23. governing remedies for failure to meet prescribed conditions of contracts for the trade of a motor vehicle and governing remedies available to a customer if a motor vehicle dealer fails to disclose prescribed information or fails to disclose it in a timely fashion;

24. prescribing entities or organizations to which confidential matters may be disclosed;

25. respecting the management of the Fund;

26. respecting the appointment, composition, quorum, powers and duties of the board of trustees of the Fund;

27. respecting the manner in which a claim for compensation from the Fund can be made;

28. prescribing the procedures and criteria to be used in determining whether a customer is eligible for compensation from the Fund;

29. governing payments out of the Fund;

30. prescribing the circumstances under which a motor vehicle dealer or former motor vehicle dealer is required to reimburse the Fund and prescribing requirements respecting the time and manner for the reimbursement and the imposition of penalties and interest;

31. respecting the cancellation of a motor vehicle dealer as a participant in the Fund;

32. respecting the obligations of motor vehicle dealers on ceasing to be participants in the Fund;

33. governing procedures and obligations if a participant is in default in making a payment to the Fund;

34. governing the circumstances and manner in which decisions in respect of claims to the Fund are made available to the public;

35. respecting arrangements made between the registrar and registrants or former registrants regarding the payment of money owed to the Fund including the consequences for failure to abide by the arrangements;

36. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

37. regulating advertising and representations or promises intended to induce the purchase, sale or exchange of motor vehicles;

38. requiring registrants or classes of registrants to maintain business premises that comply with the prescribed requirements;

39. respecting the terms and sale of motor vehicle warranties, guarantees, service plans and similar protection and the rights and obligations of customers and motor vehicle dealers in respect of them;

40. delegating any matter that may be the subject of a regulation under this section to the Minister;

41. prescribing rules relating to addresses for service under the Act;

42. prescribing any matter or thing that this Act refers to as being prescribed;

43. providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

44. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act.

Residual authority to act

(2) Despite any delegation to the Minister under paragraph 40 of subsection (1) and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART X
COMMENCEMENT AND SHORT TITLE

Commencement

45. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

46. The short title of the Act set out in this Schedule is the Motor Vehicle Dealers Act, 2002.

SCHEDULE C
REAL ESTATE AND
BUSINESS BROKERS ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Application

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

6.

7.

8.

9.

Prohibition against trade in real estate unless
registered

Exemptions

Notification of registration required

Prohibition against multiple offices unless registered

Specialist certification

Registration a requirement to bring action

PART IV
REGISTRATION

10.

11.

12.

13.

14.

15.

16.

17.

18.

Registration

Registration of brokerage

Broker of record

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Immediate suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

19.

20.

21.

22.

23.

24.

25.

Complaints

Inspection by registrar

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Freeze order

PART VI
CONDUCT AND OFFENCES

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

Duty of brokerage

Trust account

Notice of changes to registrar

Carrying on business as sole proprietor

Restrictions re: employees

Restrictions re: brokers and salespersons

Statement respecting interest

Prohibition re: breaking contract

Falsifying information

Furnishing false information

36.

37.

38.

39.

40.

41.

42.

43.

Commission and remuneration, scale

False advertising

Order of registrar re: false advertising

Restraining orders

Offence

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

44.

45.

46.

47.

48.

49.

Matters confidential

Service

Fees

Certificate as evidence

Names of and information concerning registrants

Transition

PART VIII
REGULATIONS

50.

51.

Minister's regulations

Lieutenant Governor in Council regulations

PART IX
COMMENCEMENT AND SHORT TITLE

52.

53.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Application

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"broker" means an individual who has the prescribed qualifications to be registered as a broker under this Act and who is employed by a brokerage to trade in real estate; ("courtier")

"brokerage" means a corporation, partnership, sole proprietor, association or other organization or entity that, on behalf of others and for compensation or reward or the expectation of such, trades in real estate or holds himself, herself or itself out as such; ("maison de courtage")

"business" means an undertaking carried on for gain or profit and includes any interest in such undertaking; ("entreprise")

"employ" means to employ, appoint, authorize or otherwise arrange to have another person act on one's behalf, including as an independent contractor; ("employer")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom administration for this Act is assigned under the Executive Council Act; ("ministre")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office and the manager of the real estate department of a trust corporation; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"real estate" includes leasehold interests and businesses, whether with or without premises, and fixtures, stock-in-trade and goods connected with the operation of a business; ("bien immobilier")

"registrant" means a brokerage that is registered under this Act or a broker or salesperson who is registered under this Act; ("personne inscrite")

"salesperson" means an individual who has the prescribed qualifications to be registered as a salesperson under this Act and who is employed by a brokerage to trade in real estate; ("agent immobilier")

"trade" includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for purchase and sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition, acquisition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb "trade" has a corresponding meaning; ("opération", "mener des opérations")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; ("Tribunal")

"year" means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. ("année")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed for the purposes of this Act and a maximum of two deputy registrars may be appointed,

(a) by the board of the administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or a deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director, and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar is appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition against trade in real estate unless registered

4. (1) No person shall,

(a) trade in real estate as a brokerage unless the person is registered as a brokerage;

(b) trade in real estate as a broker unless he or she is registered as a broker of a brokerage;

(c) trade in real estate as a salesperson unless he or she is registered as a salesperson of a brokerage; or

(d) trade in real estate unless registered under this Act.

Unregistered persons

(2) A person who is not registered as a brokerage, broker or salesperson shall not,

(a) directly or indirectly hold himself, herself or itself out as being a brokerage, broker or salesperson, respectively; or

(b) perform any of the functions of a brokerage, broker or salesperson as provided in this Act.

Change in partnership

(3) A change in the membership of a partnership shall be deemed to create a new partnership for the purpose of registration.

Change in corporation

(4) A change in the officers or directors of a corporation registered as a brokerage may be made only with the consent of the registrar.

Exemptions

5. (1) Despite section 4, registration shall not be required in respect of any trade in real estate by,

(a) an assignee, custodian, liquidator, receiver, trustee or other person acting under the Bankruptcy and Insolvency Act (Canada), the Corporations Act, the Business Corporations Act, the Courts of Justice Act, the Winding-up and Restructuring Act (Canada), or a person acting under the order of any court, or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust;

(b) an auctioneer if the trade is made in the course of and as part of the auctioneer's duties as auctioneer;

(c) a person who is registered under the Securities Act if the trade is made in the course of and as part of the person's business in connection with a trade in securities;

(d) a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union as defined in the Credit Unions and Caisses Populaires Act, 1994 or a loan, trust or insurance corporation trading in real estate owned or administered by the corporation;

(e) a person in respect of any mine or mining property within the meaning of the Mining Act or in respect of the real estate included in a Crown grant or lease, a mining claim or mineral lands under the Mining Act or any predecessor of that Act;

(f) a full-time salaried employee of a party to a trade if the employee is acting for or on behalf of his or her employer in respect of land situate in Ontario;

(g) a solicitor of the Superior Court of Justice who is providing legal services if the trade in real estate is itself a legal service or is incidental to and directly arising out of the legal services;

(h) a person, on the person's own account, in respect of the person's interest in real estate unless,

(i) the trade results from an offer of the person to act or a request that the person act in connection with the trade or any other trade, for or on behalf of the other party or one of the other parties to the trade, or

(ii) the interest of the person in the real estate was acquired after the offer or request referred to in subclause (i) whether or not the trade is the result of the offer or request;

(i) a person in respect of the provision for another, for remuneration other than by commission, of all consultations, undertakings and services necessary to arrange for the routing of a right of way including the acquisition of land or interests in land for the purpose, and the person's employees engaged in the project;

(j) a person who trades in real estate solely for the purpose of arranging leases to which the Tenant Protection Act, 1997 applies; or

(k) such persons or classes of persons that are prescribed as exempt from registration in respect of any class of trades in real estate.

Independent contractor not an employee

(2) An independent contractor is not an employee for the purpose of clauses (1) (f) and (i).

Notification of registration required

6. Subject to subsection 14 (8), no brokerage, broker or salesperson shall trade in real estate until notified in writing by the registrar that the brokerage, broker or salesperson, as the case may be, is registered.

Prohibition against multiple offices
unless registered

7. (1) No brokerage shall conduct a business of trading in real estate from more than one place to which the public is invited unless the brokerage is registered in respect of each place, one of which shall be designated as the main office and the remainder as branch offices.

Branch offices

(2) Every branch office of a brokerage shall be under the supervision of a broker and each such office having more than one salesperson shall be under the direct management of a broker or of a salesperson who has been registered for at least two years and who is under the supervision of a broker.

Specialist certification

8. (1) No registrant shall hold himself, herself or itself out as a specialist in trading in any type of real estate unless,

(a) the trading in that type of real estate is prescribed as an area of specialization; and

(b) the registrant is certified, as prescribed, as a specialist in trading in that area of specialization.

Brokerage categories

(2) A regulation under this section may differentiate among brokerages and between brokerages and brokers and salespersons and may provide that brokerages that are corporations may not be certified as specialists.

Registration a requirement to bring action

9. No action shall be brought for commission or other remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.

PART IV
REGISTRATION

Registration

10. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 13, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Interested person

(4) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of brokerage

11. (1) When it registers and on each renewal of its registration, a brokerage that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Broker of record

12. (1) Every brokerage shall,

(a) designate a broker who is employed by the brokerage as the broker of record and notify the registrar of his or her identity; and

(b) notify the registrar if the broker of record changes, within five days of the change.

Duties

(2) The broker of record shall ensure that the brokerage complies with this Act and the regulations.

Sole proprietor

(3) If a brokerage is a sole proprietorship, it shall designate the sole proprietor as the broker of record even though other brokers may be employed by the brokerage.

Refusal to register or renew, suspension, etc.

13. (1) Subject to section 14, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 10 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 14, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

14. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration; or

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 45.

If no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Immediate suspension

15. (1) If the registrar proposes to suspend or revoke a registration under section 14 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 14,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

16. (1) A request for a hearing under section 14 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

17. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

18. (1) In addition to the disclosure required under section 11, every brokerage that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the brokerage; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

19. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Require the broker or salesperson to take further educational courses.

4. Refer the matter, in whole or in part, to the discipline committee.

5. Take an action under section 13, subject to section 14.

6. Take further action as is appropriate in accordance with the Act.

Inspection by registrar

20. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 19; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents or records that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Discipline proceedings

21. (1) A discipline committee shall be established to hear and determine, in accordance with the prescribed procedures, if a registrant has failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) An appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following as appropriate:

1. Require the broker or salesperson to take further educational courses.

2. In accordance with the terms that may be specified by the committee, require the brokerage to fund educational courses for brokers and salespersons employed by the brokerage or to arrange and fund such educational courses.

3. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

4. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

5. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(6) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(7) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Taking of educational course

(8) The registrant shall take the educational course required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Arranging and funding educational
courses

(9) The brokerage shall arrange and fund educational courses for brokers and salespersons employed by the brokerage as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(10) The brokerage shall fund the educational courses for brokers and salespersons employed by the brokerage as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Public access

(11) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

22. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 23 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

23. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 22 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

24. (1) Although a warrant issued under section 23 would otherwise be required, an investigator may exercise any of the powers described in subsection 23 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Freeze order

25. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a client, customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the clients or customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund that is subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order is made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of clients or customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Duty of brokerage

26. A brokerage shall ensure that every salesperson and broker that the brokerage employs is carrying out their duties in compliance with this Act and the regulations.

Trust account

27. (1) Every brokerage shall maintain in Ontario an account designated as a trust account in a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a loan or trust corporation, a credit union, as defined in the Credit Unions and Caisses Populaires Act, 1994 or the Province of Ontario Savings Office in which shall be deposited all money that comes into the brokerage's hands in trust for other persons in connection with the brokerage's business, and shall at all times keep the money separate and apart from money belonging to the brokerage and shall disburse the money only in accordance with the terms of the trust.

Disclosure

(2) Brokerages shall fully and clearly disclose in writing to a person depositing trust money the terms on which the brokerage deposits the money, including whether the money is deposited in an interest bearing account and the interest rate that the brokerage receives on the money.

Interest

(3) Unless otherwise provided by contract, all interest on the trust money referred to in subsection (1) shall be paid to the beneficial owner of the trust money.

Entitlement unclear

(4) If a brokerage holds money in trust for a period of two years and entitlement to the money has not been determined or is unclear, the brokerage shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Unclaimed trust money

(5) If a brokerage holds money in trust for a period of one year after the person for whom it is held first became entitled to payment of the money and the person cannot be located, the brokerage shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Attempt to locate person entitled to payment of money

(6) Before the brokerage pays the money under subsection (5), the brokerage shall use reasonable efforts to locate the person entitled to the money being held in trust.

Information on entitlement

(7) When a brokerage pays money over under subsection (4) or (5), the brokerage shall provide to the administrative authority or to the Minister of Finance, as the case may be, as much information as the brokerage has in order to determine who is entitled to the trust money.

Money held in trust

(8) If the administrative authority has been paid money under clause (4) (a) or (5) (a), it shall hold the money in trust until the money is claimed by the person who is entitled to it or the money is transferred to the Minister of Finance under subsection (11).

Use of interest

(9) If money has been paid to the administrative authority under clause (4) (a) or (5) (a), the administrative authority shall allocate any interest that is earned after it has received the money to a separate account and may use the money from that account only to cover the costs of administering the trust fund and processing claims for the recovery of money held in trust.

Same

(10) If money to which clause (4) (a) or (5) (a) applies is held in an interest bearing account and the money is paid to the administrative authority, the administrative authority shall treat the money that is paid as a capital amount, and for purposes of subsection (9), interest shall be deemed not to be earned on the money until after the administrative authority has received it.

Unclaimed trust money to Minister of Finance

(11) If the administrative authority holds money that has been paid under clause (4) (a) or (5) (a) for a period of five years, the administrative authority shall pay the money to the Minister of Finance within one year after it has been held for the five-year period.

Attempt to locate person entitled to money

(12) The Minister or the administrative authority, as the case may be, shall use reasonable efforts to locate the person entitled to the money paid under subsection (5).

Rights preserved

(13) The payment of money held in trust to the Minister of Finance or the administrative authority is made without any prejudice to the rights of any person to claim entitlement to the trust money.

Payment

(14) The Minister of Finance or the administrative authority that receives money under subsection (4) or (5) shall pay it to the person entitled to the money.

Transition

(15) If a person who was registered as a broker under the Real Estate and Business Brokers Act immediately before that Act is repealed is holding money to which subsection (4) or (5) would apply if they were in force for the period specified in the subsection or for a longer period immediately before this section is proclaimed into force, within one year after this section has come into force, the person deemed to be a brokerage under subsection 49 (2) shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Notice of changes to registrar

28. (1) Every brokerage shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service;

(b) in the case of a corporation or partnership, any change in the officers or directors; and

(c) the date of commencement or termination of the employment of every broker and salesperson and, in the case of termination of employment of a broker or salesperson, the reason for the termination.

Same

(2) Every broker or salesperson shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; and

(b) the commencement or termination of his or her employment by a brokerage and the date of the commencement or termination.

Timing

(3) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(4) Every brokerage shall, when required by the registrar with the approval of the director, file a financial statement showing the matters specified by the registrar and signed by the broker of record and certified by a person licensed under the Public Accountancy Act.

Confidential

(5) The information contained in a financial statement filed under subsection (4) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Carrying on business as sole proprietor

29. (1) A brokerage carrying on business alone through an individual broker shall carry on business in the name of the broker and shall not use any description or device that would indicate that the brokerage's business is being carried on by more than one person or by a corporation.

Exception

(2) Despite subsection (1), a surviving or remaining partner may carry on business in the name of the original partnership if the surviving or remaining partner publishes on all letterhead, circulars and advertisements used in connection with the business the fact that the surviving or remaining partner is the sole proprietor.

Restrictions re: employees

30. No brokerage shall,

(a) employ another brokerage's broker or salesperson to trade in real estate or permit such broker or salesperson to act on the brokerage's behalf;

(b) employ an unregistered person to perform a function for which registration is required; or

(c) pay any commission or other remuneration to a person referred to in clause (a) or (b).

Restrictions re: brokers and salespersons

31. (1) No broker or salesperson shall trade in real estate on behalf of any brokerage other than the brokerage which employs the broker or salesperson.

Same

(2) No broker or salesperson is entitled to or shall accept any commission or other remuneration for trading in real estate from any person except the brokerage which employs the broker or salesperson.

Statement respecting interest

32. (1) Unless the registrant first delivers to all other parties to the agreement a written statement that he, she or it is a brokerage, broker or salesperson, as the case may be, and the other parties have acknowledged receipt of the statement in writing, no registrant shall, either directly or indirectly,

(a) purchase, lease, exchange or otherwise acquire for himself, herself, or itself, any interest in real estate or make an offer to do so; or

(b) divest himself, herself, or itself of any interest in real estate, or make an offer to do so.

Details if property listed

(2) If real estate in respect of which a registrant is required to give a statement under subsection (1) is listed with the brokerage or, in the case of a broker or salesperson, is listed with the brokerage by which the broker or salesperson is employed, the statement shall include,

(a) full disclosure of all facts within the registrant's knowledge that affect or will affect the value of the real estate; and

(b) the particulars of any negotiation or agreement by or on behalf of the registrant for the sale, exchange, lease or other disposition of any interest in the real estate to any other person.

Prohibition re: breaking contract

33. (1) No registrant shall induce any party to an agreement for purchase and sale or an agreement for rental of real estate to break the agreement for the purpose of entering into another such agreement.

Date of signing

(2) Every salesperson and broker shall make all reasonable efforts to ensure that a person signing an agreement in respect of a trade in real estate sets out the date upon which the signature was affixed.

Commission

(3) Unless agreed to in writing by the vendor, no brokerage is entitled to claim commission or other remuneration from the vendor in respect of a trade in real estate if the real estate is, to the knowledge of the brokerage, covered by an unexpired listing agreement with another brokerage.

Falsifying information

34. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to a trade in real estate.

Furnishing false information

35. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to a trade in real estate.

Commission and remuneration, scale

36. (1) All commission or other remuneration payable to a brokerage in respect of a trade in real estate shall be either an agreed amount or percentage of the sale price or rental price, as the case may be, but not both and, if there is no agreement as to the amount of the commission, the rate of commission or other remuneration or other basis or amount of remuneration shall be that generally prevailing in the community where the real estate is located.

Same

(2) If the commission payable in respect of a trade in real estate is expressed as a percentage of the sale price or rental price, the percentage does not have to be fixed but may be expressed as a series of percentages that decrease at specified amounts as the sale price or rental price increases.

Same

(3) No registrant shall request or enter into an arrangement for the payment of a commission or any other remuneration based on the difference between the price at which real estate is listed for sale or rental and the actual sale price or rental price, as the case may be, of the real estate, nor is a registrant entitled to retain any commission or other remuneration computed upon any such basis.

False advertising

37. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to trading in real estate.

Order of registrar re: false advertising

38. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 14 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Restraining orders

39. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

40. (1) A person is guilty of an offence who,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 21, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under the Act, other than a code of ethics established by the Minister under section 50.

Brokerages

(2) An officer or director of a brokerage is guilty of an offence who fails to take reasonable care to prevent the brokerage from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(4) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

41. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer.

Default in payment of fines

42. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Real Estate and Business Brokers Act, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

43. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

44. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

45. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

46. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

47. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names of and information concerning registrants

48. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

49. (1) Despite the repeal of the Real Estate and Business Brokers Act, any person who was registered as a broker or salesperson under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a broker or salesperson, as the case may be, under this Act until the person is required to renew their registration under this Act.

Same

(2) If a person was registered as a broker under the Real Estate and Business Brokers Act immediately before this Act is proclaimed into force and the person would be required to be registered as a brokerage under this Act, the person shall be deemed to be registered as a brokerage under this Act until the person is required to renew their registration under this Act.

PART VIII
REGULATIONS

Minister's regulations

50. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 21 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matter that may be delegated by the Lieutenant Governor in Council under section 51.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the designated administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 51, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

51. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons or class of trades from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. prescribing educational requirements for registration and renewals of registration, establishing areas of specialization and prescribing different educational requirements for each area and establishing a certification process in respect of an area of specialization;

4. governing specialization in respect of brokerages that are corporations, including restricting or prohibiting the certification of corporations as specialists;

5. designating an entity as an authority to develop educational requirements and accredit institutions or programs to provide specialist certification;

6. respecting financial security requirements for brokerages, brokers and salespersons, including requiring them to be bonded or insured or have collateral security, and prescribing the forfeiture of bonds, the disposition of proceeds and other terms related to the financial security requirements;

7. if there is a requirement that brokerages, brokers or salespersons be insured, prescribing the minimum amount of insurance for which they must be insured and prescribing the insurers with which they must be insured;

8. governing the documents, records and trust accounts that must be kept by brokerages, including the manner and location in which they are kept and the time periods for retaining such information and authorizing the registrar to specify the location at which they must be kept;

9. prescribing the responsibilities of brokers of record, brokerages, brokers or salespersons;

10. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

11. prescribing procedures and other matters related to complaints under section 19;

12. respecting inspections and investigations under this Act;

13. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

14. requiring registrants to provide, on request and in the prescribed circumstances, proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

15. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

16. varying the manner in which a notice under subsection 25 (7) or a lien under subsection 43 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

17. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

18. governing the activities of registrants including,

i. prescribing matters that must be disclosed and when they must be disclosed in the course of a trade in real estate, including matters related to any holdings in brokerages other than the brokerage by which they are employed, in the case of salespersons and brokers, or in other brokerages, in the case of brokerages and the conditions under which such disclosures may be required,

ii. setting out the manner in which trust accounts are wound down when a brokerage's registration ends,

iii. regulating advertising and representations or promises intended to induce a trade in real estate,

iv. regulating listing agreements, representation agreements and specific types of representation agreements,

v. prescribing conditions that must be met before commissions or other remuneration may be charged or collected,

vi. prescribing statements that are to be provided in respect of any trade in real estate, the content of the statement, the manner in which the statement is to be provided, the circumstances under which a statement is not required and the consequences of failing to provide a statement,

vii. setting out obligations of a brokerage, broker and salesperson that follow the acceptance of an offer to sell, purchase, exchange, lease or rent real estate;

19. governing the conduct of registrants when they represent more than one party in a trade;

20. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

21. prescribing matters that must be disclosed by brokers and salespersons to the brokerages by which they are employed and to brokerages that are prospective employers and the conditions under which such disclosures are required;

22. requiring the registrar to make available to the public the names of registrants and prescribing the form and manner in which the names of registrants are made available and prescribing other information in respect of registrants that may be made available to the public;

23. requiring registrants to maintain business premises that comply with the prescribed rules;

24. providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

25. delegating any matter that may be the subject of a regulation under this section to the Minister;

26. prescribing rules relating to addresses for service under the Act;

27. prescribing any matter or thing that this Act refers to as being prescribed or in accordance with the regulations;

28. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act.

Residual authority to act

(2) Despite any delegation to the Minister under paragraph 25 of subsection (1) and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART IX
COMMENCEMENT AND SHORT TITLE

Commencement

52. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

53. The short title of the Act set out in this Schedule is the Real Estate and Business Brokers Act, 2002.

SCHEDULE D
TRAVEL INDUSTRY ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Definitions

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

6.

7.

Prohibition against acting as a travel agent or travel wholesaler unless registered

Changes: corporations

Offices of travel agents

Registration a requirement to bring action

PART IV
REGISTRATION

8.

9.

10.

11.

12.

13.

14.

15.

Registration

Registration of corporations

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Immediate suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

16.

17.

18.

19.

20.

21.

22.

23.

Complaints

Inspection by registrar

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Appointment of receiver and manager

Freeze order

PART VI
CONDUCT AND OFFENCES

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

Notice of changes to registrar

Liability for deposits

Falsifying information

Furnishing false information

False advertising

Order of registrar re: false advertising

Restraining orders

Offence

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

35.

36.

37.

38.

39.

40.

Matters confidential

Service

Fees

Certificate as evidence

Names and information concerning registrants

Transition

PART VIII
TRAVEL INDUSTRY
COMPENSATION FUND

41.

Compensation fund

PART IX
REGULATIONS

42.

43.

Minister's regulations

Lieutenant Governor in Council regulations

PART X
COMMENCEMENT AND SHORT TITLE

44.

45.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Definitions

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Fund" means the Travel Industry Compensation Fund continued under section 41; ("Fonds")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act is assigned; ("ministre")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and the assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"registrant" means a travel agent or a travel wholesaler who is registered as a travel agent or a travel wholesaler or as both under this Act; ("personne inscrite")

"travel agent" means a person who sells, to consumers, travel services provided by another person; ("agent de voyages")

"travel services" means transportation, sleeping accommodation or other services for the use of a traveller, tourist or sightseer; ("service de voyages")

"travel wholesaler" means a person who acquires rights to travel services for the purpose of resale to a travel agent or who carries on the business of dealing with travel agents or travel wholesalers for the sale of travel services provided by another person; ("voyagiste")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed. ("Tribunal")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed for the purposes of this Act and a maximum of two deputy registrars may be appointed,

(a) by the board of the administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar is appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition against acting as a travel agent or travel wholesaler unless registered

4. (1) No person shall act or hold himself, herself or itself out as being available to act,

(a) as a travel agent unless the person is registered as a travel agent under this Act; or

(b) as a travel wholesaler unless the person is registered as a travel wholesaler under this Act.

Exemption

(2) Despite subsection (1), a person who is exempt from registration by regulation and is not registered under this Act may act as a travel agent or travel wholesaler or carry out such activities of a travel agent or travel wholesaler as are prescribed.

Changes: corporations

5. (1) A change in the officers or directors of a corporation registered as a travel agent or travel wholesaler may be made only with the consent of the registrar.

Same: partnerships

(2) A change in the membership of a partnership shall be deemed to create a new partnership for the purpose of registration.

Offices of travel agents

6. (1) No travel agent shall conduct business from a place at which the public is invited to deal unless the place is named as an office in the travel agent's registration.

Branch offices

(2) If more than one office is named in the registration, one shall be designated as the main office and the remainder as branch offices.

Same

(3) A travel agent or applicant for registration as a travel agent is entitled to have any place of business specified by the travel agent or applicant named in the registration except such branch offices as are in contravention of the regulations.

Registration a requirement to bring action

7. No action shall be brought against a consumer of travel services for a commission or other remuneration in relation to the provision of those services unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.

PART IV
REGISTRATION

Registration

8. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) is incorporated without share capital,

(ii) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) having regard to the financial position of its officers or directors or of an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iv) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(v) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 10, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Integrity

(4) Without restricting the generality of clause (1) (b) and subclause (1) (d) (iv), a conviction for an offence under sections 126, 127 and 128 of the Immigration and Refugee Protection Act (Canada) is sufficient grounds for the purpose of those provisions.

Interested person

(5) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of corporations

9. (1) When it registers and on each renewal of its registration, a travel agent or travel wholesaler that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Refusal to register or renew, suspension, etc.

10. (1) Subject to section 11, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 8 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 11, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

11. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration;

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented; or

(d) refuse to name a branch office in a registration.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 36.

If no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Immediate suspension

12. (1) If the registrar proposes to suspend or revoke a registration under section 11 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 11,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

13. (1) A request for a hearing under section 11 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

14. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

15. (1) In addition to the disclosure required under section 9, every registrant that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the registrant; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

16. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Refer the matter, in whole or in part, to the discipline committee.

4. Take an action under section 10, subject to section 11.

5. Take further action as is appropriate in accordance with the Act.

Inspection by registrar

17. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 16; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents or records that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Discipline proceedings

18. (1) The board of the administrative authority or the Minister if there is no designated administrative authority may establish a discipline committee to hear and determine, in accordance with the prescribed procedures, issues concerning whether registrants have failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) If a discipline committee is established, an appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following, as appropriate:

1. In accordance with the terms that may be specified by the committee, require the registrant to fund educational courses for the employees of the registrant or to arrange and fund such educational courses.

2. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

3. Suspend or postpone the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

4. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(6) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(7) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Arranging and funding educational
courses

(8) The registrant shall arrange and fund the educational courses for employees as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(9) The registrant shall fund the educational courses for employees as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course if no time period is specified in that order.

Public access

(10) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

19. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 20 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

20. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 19 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

21. (1) Although a warrant issued under section 20 would otherwise be required, an investigator may exercise any of the powers described in subsection 20 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Appointment of receiver and manager

22. (1) The director may apply to the Superior Court of Justice for the appointment of a receiver and manager to take possession and control of the business of a registrant if,

(a) an investigation of the registrant has been undertaken under this Act;

(b) the director has made or is about to make an order under section 23;

(c) the director has reasonable grounds to believe that a registrant has failed or is about to fail to provide contracted and paid for travel services to a customer;

(d) the director is advised that the registrar has proposed to suspend or revoke a registration under section 11 or to temporarily suspend a registration under section 12; or

(e) the director is advised that an investigation under section 5.1 of the Ministry of Consumer and Business Services Act has been ordered.

Order to appoint

(2) The court may make an order for the appointment of a receiver and manager, if it is satisfied that it is in the public interest to have a receiver and manager take control of the business of a registrant.

Notice

(3) The court may make an order under subsection (2) without notice, or if it considers that notice should be given, upon such notice as the court stipulates.

Appointment not longer than 60 days

(4) The order of the court shall provide for the term of the receiver and manager but the term shall not be longer than 60 days.

60-day extensions

(5) Despite subsection (4), the director may, without notice, apply to the court to extend the receiver and manager's term for further terms of not more than 60 days each.

Duties of receiver and manager

(6) The receiver and manager shall,

(a) take possession and control of the assets of the registrant's business;

(b) conduct the business of the registrant; and

(c) take such steps that are, in the opinion of the receiver and manager, necessary for the rehabilitation of the business.

Powers of receiver and manager

(7) The receiver and manager has all the powers of the board of directors of the corporation, if the registrant is a corporation, or of a sole proprietor or all partners if the registrant is not a corporation.

May exclude directors, etc.

(8) Without limiting the generality of subsection (7), the receiver and manager may exclude the directors, officers, employees and agents of the business, interested persons in respect of the business and any other persons connected with the business from the premises and property of the business.

Interested persons

(9) Subsection 8 (5) applies to this section except that the opinion as to whether a person is deemed to be interested in respect of another person is that of the receiver and manager.

Freeze order

23. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of any asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order has been made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order as to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Notice of changes to registrar

24. (1) Every registrant shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; or

(b) in the case of a corporation or partnership, any change in the officers or directors.

Timing

(2) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(3) Every registrant shall, when required by the registrar with the approval of the director, file a financial statement showing the matters specified by the registrar, signed by the registrant in the case of a sole proprietorship or by an officer of the registrant if the registrant is a partnership or corporation and certified by a person licensed under the Public Accountancy Act.

Same

(4) The registrar may require that registrants with a prescribed value of sales submit financial statements on a quarterly basis.

Confidential

(5) The information contained in a financial statement filed under subsection (3) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Liability for deposits

25. (1) Where any person is entitled to the repayment of any money paid for or on account of a travel service, any travel agent and any travel wholesaler who received such money or any part thereof is liable jointly and severally with any other person liable therefore, for the repayment of such money to the extent of the amount received by him, her or it.

Application of subs. (1)

(2) Subsection (1) does not apply where,

(a) the travel agent or travel wholesaler has properly disbursed the money received;

(b) the travel agent or travel wholesaler has acted in good faith and at arm's length with any person with whom he, she or it would, but for this subsection, be jointly and severally liable under subsection (1); and

(c) the person referred to in subsection (1) who is entitled to repayment of money is entitled to be reimbursed therefore out of the Fund,

unless the travel agent or travel wholesaler would, but for this subsection, be jointly liable under subsection (1) with a travel agent and travel wholesaler who is not registered under this Act.

Falsifying information

26. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to the provision of travel services.

Furnishing false information

27. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to the provision of travel services.

False advertising

28. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to the provision of travel services.

Order of registrar re: false advertising

29. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 11 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Restraining orders

30. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

31. (1) A person is guilty of an offence who,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 18, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under this Act, other than a code of ethics established by the Minister under section 42.

Corporations

(2) An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(4) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

32. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer or the Fund, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer or the Fund, as the case may be.

Default in payment of fines

33. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Travel Industry Act, then, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

34. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

35. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

36. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

37. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

38. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names and information concerning registrants

39. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

40. Despite the repeal of the Travel Industry Act, any person who was registered as a travel agent or travel wholesaler under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a travel agent or travel wholesaler, as the case may be, under this Act until the person is required to renew their registration under this Act.

PART VIII
TRAVEL INDUSTRY
COMPENSATION FUND

Compensation Fund

41. (1) The Travel Industry Compensation Fund established under the Travel Industry Act is continued.

Regulations

(2) The Fund shall be administered and managed in accordance with the regulations.

PART IX
REGULATIONS

Minister's regulations

42. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 18 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matters that may be delegated by the Lieutenant Governor in Council under paragraph 41 of section 43.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 43, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

43. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. providing for the expiration and renewal of registrations;

4. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

5. prescribing a maximum fine to be imposed for contravention of the code of ethics;

6. respecting financial security requirements for registrants or any class of registrants, including requiring them to be bonded or insured or have collateral security, and prescribing the forfeiture of bonds, the disposition of proceeds and other terms related to the financial security requirements;

7. if there is a requirement that registrants or any class of registrants be insured, prescribing the minimum amount of insurance for which they must be insured and prescribing the insurers with which they must be insured;

8. regulating the management and operation of branch offices of travel agents;

9. governing contracts for the purchase or acquisition of travel services by travel wholesalers;

10. requiring registrants to provide, on request and in the prescribed circumstances, proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

11. requiring and governing the maintenance of trust accounts by registrants or any class of registrants, prescribing the money that shall be held in trust and the conditions of the trust and authorizing the registrar to specify the location at which such trust accounts must be kept;

12. setting out the manner in which trust accounts are wound down when a registration ends;

13. governing the documents and records that must be kept by registrants or any class of registrants, including the manner and location in which they are kept and the time periods for retaining such information and authorizing the registrar to specify the location at which they must be kept;

14. prescribing the responsibilities of registrants or any class of registrant;

15. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

16. prescribing information that a travel agent or travel wholesaler must disclose to a customer or to another registrant;

17. governing the disclosure of names of registrants and other information concerning registrants;

18. respecting procedures and other matters related to complaints under section 16;

19. respecting inspections and investigations under this Act;

20. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

21. governing procedures for hearings held by the Tribunal and providing for the responsibility for the payment of witness fees and expenses at proceedings before the Tribunal and prescribing the amounts of the fees and expenses;

22. varying the manner in which a notice under subsection 23 (7) or a lien under subsection 34 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

23. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

24. governing contracts for the sale of travel services;

25. governing the administration and maintenance of the Fund;

26. requiring that the Fund be held in trust and prescribing the terms of the trust;

27. requiring the participation in the Fund by travel agents and travel wholesalers;

28. respecting and requiring the payment of levies into the Fund by travel agents and travel wholesalers and prescribing the amounts thereof;

29. respecting the payment out of the Fund of claims and procedures to be followed in respect of such claims;

30. respecting the payment out of the Fund for matters relating to the administration and operation of the Fund;

31. prescribing the circumstances under which a registrant is required to reimburse the Fund for the payment of claims to customers of a registrant and prescribing rules respecting the time and manner for the reimbursement and the imposition of penalties and interest;

32. governing the reimbursement by registrants to the Fund for money paid out of the Fund to reimburse a customer of the registrant or to provide travel services to a customer of the registrant;

33. governing procedures and obligations if a participant is in default in making a payment to the Fund;

34. respecting the borrowing of money to supplement the Fund;

35. requiring decisions in respect of claims made against the Fund to be made available to the public, prescribing the manner in which the decisions are to be made available to the public, including requiring their publication, and governing the information contained in the decision which shall not be disclosed to the public;

36. requiring the registrar to make available to the public the names of registrants and prescribing the form and manner in which the names of registrants are made available and prescribing other information in respect of registrants that may be made available to the public;

37. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

38. regulating advertising and representations or promises intended to induce the sale of travel services;

39. requiring registrants or classes of registrants to submit advertisements to the registrar for approval during a prescribed period of time and prescribing the period of time;

40. requiring registrants or classes of registrants to maintain business premises that comply with the prescribed rules;

41. delegating any matter that may be the subject of a regulation under this section to the Minister;

42. prescribing rules relating to addresses for service under the Act;

43. providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

44. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act;

45. prescribing any matter or thing that this Act refers to as being prescribed or in accordance with the regulations.

Residual authority to act

(2) Despite any delegation to the Minister under this section and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not a revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART X
COMMENCEMENT AND SHORT TITLE

Commencement

44. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

45. The short title of the Act set out in this Schedule is the Travel Industry Act, 2002 .

SCHEDULE E
AMENDMENTS TO OTHER ACTS

CONTENTS

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

Business Practices Act repealed

Collection Agencies Act amended

Consumer Protection Act repealed

Consumer Protection Bureau Act repealed

Consumer Reporting Act amended

Discriminatory Business Practices Act amended

Highway Traffic Act amended

Licence Appeal Tribunal Act, 1999 amended

Loan Brokers Act, 1994 repealed

Ministry of Consumer and Business
Services Act
amended

Mortgage Brokers Act amended

Motor Vehicle Dealers Act repealed

Motor Vehicle Repair Act repealed

Personal Property Security Act amended

Prepaid Services Act repealed

Real Estate and Business Brokers Act repealed

Registered Insurance Brokers Act amended

Retail Sales Tax Act amended

Safety and Consumer Statutes
Administration Act, 1996
amended

Toronto Islands Residential Community Stewardship Act, 1993 amended

Travel Industry Act repealed

Commencement

______________

Business Practices Act repealed

1. The Business Practices Act, as amended by Statutes of Ontario, 1994, chapter 27, section 73, 1997, chapter 19, section 28, 1998 chapter 18, Schedule E, sections 40 and 41, 1999, chapter 12, Schedule G, section 14 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Collection Agencies Act amended

2. (1) Clause 2 (d) of the Collection Agencies Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

Same

(2) Section 15 of the Act is repealed.

Consumer Protection Act repealed

3. The Consumer Protection Act, as amended by Statutes of Ontario, 1993, chapter 27, Schedule, 1997, chapter 35, section 1, 1998, chapter 15, Schedule E, section 4, 1998, chapter 18, Schedule E, sections 54 and 55, 1999, chapter 12, Schedule F, sections 11 to 20, 1999, chapter 12, Schedule G, section 19, 2001, chapter 9, Schedule D, section 4 and 2002, chapter 17, Schedule F, Table, is repealed.

Consumer Protection Bureau Act repealed

4. The Consumer Protection Bureau Act, as amended by Statutes of Ontario, 2001, chapter 9, Schedule D, section 13, is repealed.

Consumer Reporting Act
amended

5. (1) The definitions of "credit repair" and "credit repairer" in subsection 1 (1) of the Consumer Reporting Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule B, section 8, are repealed.

Same

(2) Sections 13.1, 13.2, 13.3, 13.4, 13.5, 13.6, 13.7 and 13.8 of the Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule B, section 8, are repealed.

Same

(3) Section 17 of the Act is repealed.

Discriminatory Business Practices Act amended

6. (1) Subsections 6 (2) and (3) of the Discriminatory Business Practices Act are repealed and the following substituted:

Application of
Consumer Protection Act, 2002

(2) If the Director proposes to make an order under subsection (1), subsections 111 (2) to (7) of the Consumer Protection Act, 2002 apply with necessary modifications.

Order for immediate compliance

(3) Despite subsection (2), the Director may make an order under subsection (1) to take effect immediately if, in the Director's opinion, to do so is necessary for the protection of the public or of any person and in such case subsections 112 (2) to (6) of the Consumer Protection Act, 2002 apply with necessary modifications and, subject to subsections 112 (3), (4) and (5) of that Act, the order takes effect immediately.

Same

(2) Section 8 of the Act is repealed and the following substituted:

Appointment of investigators

8. (1) The Director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 8.1 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

8.1 (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Same

(2) Subsections 107 (2) to (13) of the Consumer Protection Act, 2002 apply with necessary modifications to a warrant issued under subsection (1).

Searches in exigent circumstances

8.2 (1) Although a warrant issued under section 8.1 would otherwise be required, an investigator may exercise any of the powers described in subsection 107 (2) of the Consumer Protection Act, 2002 without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Same

(3) Section 13 of the Act is amended by striking out "under section 8" in the portion before clause (a).

Same

(4) Clause 16 (1) (c) of the Act is amended by striking out "section 8" and substituting "section 8.1".

Highway Traffic Act amended

7. Subsection 59 (2) of the Highway Traffic Act is amended by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002".

Licence Appeal Tribunal Act, 1999
amended

8. Section 11 of the Licence Appeal Tribunal Act, 1999 is amended,

(a) by striking out "Business Practices Act";

(b) by striking out "Consumer Protection Act" and substituting "Consumer Protection Act, 2002";

(c) by striking out "Loan Brokers Act, 1994";

(d) by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002";

(e) by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002"; and

(f) by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Loan Brokers Act, 1994 repealed

9. The Loan Brokers Act, 1994, as amended by Statutes of Ontario, 1998, chapter 18, Schedule E, sections 176 to 178, 1999, chapter 12, Schedule G, section 26 and 2001, chapter 9, Schedule D, section 13, is repealed.

Ministry of Consumer and Business Services Act
amended

10. The Ministry of Consumer and Business Services Act is amended by adding the following sections:

Investigations

5.1 (1) The Minister may by written order appoint a person to make an investigation into any matter that relates to an Act that has been assigned to him or her and is prescribed by regulation.

Powers, duties

(2) The person appointed shall report the result of the investigation to the Minister and, for the purposes of the investigation, that person has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Experts

(3) The Minister may appoint an expert,

(a) to examine valuables, documents, records or other things obtained under this section; or

(b) to provide assistance in producing a document or record in readable form from any data storage, processing or retrieval device or system.

Regulations

(4) The Lieutenant Governor in Council may make regulations prescribing Acts for the purpose of subsection (1).

. . . . .

Proof of document

10. Any document made under this Act that purports to be signed by the Minister or Deputy Minister, or a certified copy of the document, is receivable in evidence in any action, prosecution or other proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the Minister or Deputy Minister without proof of the office or signature of the Minister or Deputy Minister.

Mortgage Brokers Act amended

11. (1) Clause 2 (b) of the Mortgage Brokers Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

(2) Subsection 4 (4) of the Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

Motor Vehicle Dealers Act repealed

12. The Motor Vehicle Dealers Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 92, 1997, chapter 19, section 38, 1997, chapter 35, section 2, 1998, chapter 18, Schedule E, sections 184 to 186, 1999, chapter 12, Schedule G, section 29 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Motor Vehicle Repair Act repealed

13. The Motor Vehicle Repair Act, as amended by Statutes of Ontario, 1994, chapter 27, section 93, 1997, chapter 35, section 3 and 2001, chapter 9, Schedule D, section 13, is repealed.

Personal Property Security Act amended

14. (1) Subsection 14 (2) of the Personal Property Security Act is repealed and the following substituted:

Non-application

(2) Subsection (1) does not apply to an assignment to which section 83 of the Consumer Protection Act, 2002 applies.

(2) Section 73 of the Act is amended by striking out "Consumer Protection Act" wherever it appears and substituting in each case "Consumer Protection Act, 2002".

Prepaid Services Act repealed

15. The Prepaid Services Act, as amended by Statutes of Ontario, 1999, chapter 12, Schedule F, section 33, is repealed.

Real Estate and Business Brokers Act repealed

16. The Real Estate and Business Brokers Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, 1994, chapter 27, section 98, 1996, chapter 19, section 24, 1997, chapter 19, section 41, 1998, chapter 18, Schedule E, sections 203 to 206, 1999, chapter 12, Schedule G, section 33, 2001, chapter 9, Schedule D, sections 13 and 14 and 2002, chapter 8, Schedule I, section 22, is repealed.

Registered Insurance Brokers Act amended

17. Clause 2 (2) (e) of the Registered Insurance Brokers Act is amended by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Retail Sales Tax Act amended

18. Clause 4.2 (5) (a) of the Retail Sales Tax Act, as enacted by the Statutes of Ontario, 1993, chapter 12, section 5, is amended by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002".

Safety and Consumer Statutes Administration Act, 1996
amended

19. The Schedule to the Safety and Consumer Statutes Administration Act, 1996, as amended by the Statutes of Ontario, 1998, chapter 15, Schedule E, section 46 and 2000, chapter 16, section 46, is amended,

(a) by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002";

(b) by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002"; and

(c) by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Toronto Islands Residential Community Stewardship Act, 1993 amended

20. Paragraph 3 of subsection 14 (2) of the Toronto Islands Residential Community Stewardship Act, 1993 is repealed and the following substituted:

3. Real Estate and Business Brokers Act, 2002.

Travel Industry Act repealed

21. The Travel Industry Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 100, 1996, chapter 19, section 25, 1997, chapter 19, section 42, 1998, chapter 18, Schedule E, section 289, 1999, chapter 12, Schedule G, section 34 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Commencement

22. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

EXPLANATORY NOTE

This Explanatory Note was written as a reader's aid to Bill 180 and does not form part of the law. Bill 180 has been enacted as Chapter 30 of the Statutes of Ontario, 2002.

The Bill amends several statutes in relation to consumer protection. Here are some of the principal amendments:

SCHEDULE A
CONSUMER PROTECTION
ACT, 2002

The Schedule enacts the Consumer Protection Act, 2002. The new Act includes the substantive contents of what was the former Consumer Protection Act and also that of the Business Practices Act, the Consumer Protection Bureau Act, the Loan Brokers Act, 1994, the Motor Vehicle Repair Act, the Prepaid Services Act and parts of the Consumer Reporting Act.

The Schedule is divided into eleven Parts.

Part I: Interpretation and Application

The new Act, subject to limited exceptions, applies to all consumer transactions where the consumer or the person with whom the consumer is conducting the transaction is located in Ontario. There is an anti-avoidance provision that allows the substance of a transaction or entity to be examined to determine whether it is covered by the Act, permitting the form to be ignored. Consumer agreements that meet the criteria for more than one type of agreement covered by the Act must comply with the provisions applicable to all the types of agreement for which they meet the criteria, except as the provisions are exempted by regulation. Supplier disclosure under the new Act must be clear, comprehensible and prominent. If a supplier is required to deliver information to a consumer, it must be delivered in a form in which it can be retained by the consumer.

Part II: Consumer Rights and
Warranties

Nothing in the new Act is to be interpreted to limit any right or remedy of a consumer. Specifically, any provision that purports to require that disputes under a consumer agreement must be resolved by arbitration are not applicable to provisions in the new Act that give a consumer a right of action. Similarly, the consumer is given the right to commence or participate in a class proceeding arising from a consumer agreement, despite any provision in the agreement that purports to limit such a right.

Suppliers are deemed to warrant that services are of a reasonably acceptable quality. The implied conditions and warranties that apply to goods because of the Sale of Goods Act are made applicable to goods that are leased or traded and deemed or implied warranties or conditions cannot be negated. If a consumer receives an estimate, suppliers cannot charge consumers an amount that exceeds the estimate by more than 10 per cent. Ambiguities in any consumer agreement provided by the supplier and in required information are to be interpreted in favour of the consumer. A consumer cannot be charged to obtain a right or entitlement to which the consumer is entitled under the Act unless the entitlement is disclosed before the consumer agrees to pay the charge. Except as set out in limited circumstances, including on consent, a supplier cannot require payment for unsolicited goods or services.

Part III: Unfair Practices

Unfair practices include making a false, misleading or deceptive representation, making an unconscionable representation and renegotiating the price charged to a consumer in specified circumstances. Engaging in unfair practices is prohibited. A consumer agreement may be rescinded if it is entered into as the result of unfair practice and a consumer is entitled to any remedy available at law, including damages when an agreement is rescinded. Rescission of an agreement operates to cancel, as if they never existed, the agreement, related agreements, related guarantees and security and related credit agreements.

Part IV: Rights and Obligations Respecting Specific Consumer Agreements

Part IV covers several types of consumer agreements the regulation of which shares certain general characteristics. Future performance agreements, time share agreements, personal development services agreements, internet agreements, direct agreements and remote agreements are all regulated under this Part. In general, such agreements must meet a minimum total potential payment obligation to be regulated and must generally be provided in writing to the consumer. A consumer generally has a cooling-off period after delivery of the agreement to cancel and may generally cancel within one year after delivery of the agreement if the agreement did not meet the prescribed requirements.

Part V: Sectors Where Advanced Fee
Prohibited

In certain sectors, credit repair, loan brokering and the supply of other prescribed goods or services, advance fees are prohibited. Payments cannot be required or accepted until the obligations under the agreement have been performed. Such agreements may be cancelled within 10 days after a written copy of the agreement is delivered to the consumer or within one year if the agreement does not meet the prescribed requirements.

Part VI: Repairs to Motor Vehicles and
Other Goods

This Part regulates repairs to motor vehicles and other prescribed goods. Repairs cannot be undertaken unless the repairer provides the consumer with an estimate. However, a repairer may charge a consumer for work done without an estimate if the consumer declines the offer of an estimate and authorizes a maximum amount that he or she is willing to pay and the cost charged does not exceed that maximum amount. Repairers must tell consumers in advance if a fee is going to be charged for an estimate and cannot charge for an estimate where the work is authorized and carried out unless there has been unreasonable delay in obtaining the authorization.

If an authorization required under this Part is not given in writing, it must be recorded in accordance with the prescribed requirements. Repairers shall post the prescribed signs in accordance with the prescribed requirements. Invoices shall contain the prescribed information and shall be provided to consumers in the prescribed manner. Estimates or charges for work cannot be increased because cost is to be paid directly or indirectly by an insurance company.

There are requirements for returning parts when they are removed during repair and keeping such parts separate. Repairers are deemed to warrant parts and labour for a minimum of 90 days or 5,000 kilometres, whichever comes first, when a vehicle is repaired.

Part VII: Credit Agreements

Except as excluded, credit agreements in which a lender extends credit to a borrower (a consumer who is a party to a credit agreement) are regulated under this Part. Credit on the security of real property is excluded, as are supplier credit agreements if the borrower makes a single payment within a certain period and the borrower pays no interest during that period. Consumers are not liable to make payments on unsolicited credit cards until the card is used and the liability of a consumer for the unauthorized use of a credit card may be limited as prescribed. A borrower under a credit agreement is not liable to pay a lender the cost of borrowing if the lender has not disclosed the required information.

If a borrower is required to purchase insurance, he or she may purchase it from any insurer except that the lender can disapprove, on reasonable grounds, an insurer selected by the borrower. A borrower is permitted to terminate optional services supplied by a lender on 30 days notice. If a lender invites a borrower to defer making a payment, the invitation must disclose whether or not interest will accrue during the deferral period. Default charges are limited to reasonable charges in respect of legal costs incurred in attempting to collect payment, reasonable costs incurred on realizing on security and reasonable costs incurred because a cheque or other instrument has been dishonoured. A borrower is entitled to prepay the full outstanding balance under a credit agreement without penalty or charge.

There are a number of provisions regulating disclosure. Brokerage fees must be disclosed to borrowers as part of the required initial disclosure statement. Such statements must disclose the prescribed information. In addition, there are requirements for subsequent disclosure of changes in interest rates and insufficiency of scheduled payments to cover interest. Monthly statements of account are generally required in credit agreements for open credit.

Lenders' representations in respect of credit agreements must meet prescribed requirements.

When a negotiable instrument given to secure credit is assigned, the required statements and, if there is one, the consumer agreement must be delivered. An assignee has no greater rights and is subject to the same obligations as the person who assigned the credit.

Statements of the cost of borrowing shall be based on an adjusted amount if a consumer agreement allows for adjustment for an allowance for a trade-in. If there is an adjustment, the consumer agreement cannot be adjusted to change the percentage rate of the cost of borrowing, the total number of required instalments or the price.

Part VIII: Leasing

This Part covers consumer agreements for the lease of goods other than a lease in connection with a residential tenancy. It applies to leases of a fixed term of four months or more, leases for an indefinite period that are renewed automatically and residual obligation leases. Lessors are required to deliver disclosure statements before the earlier of the time the lessee enters into the lease and the time the lessee makes any payment in connection with it. The disclosure statement must contain the prescribed information. The maximum amount of compensation that may be charged to a lessee for early termination of a lease may be limited as prescribed. The maximum liability of a lessee at the end of a term of a residual obligation lease must be calculated in a prescribed manner.

Part IX: Procedures for Consumer
Remedies

This Part deals with the cancellation of consumer agreements other than those where the cancellation is being sought because of an unfair practice. Consumer agreements are not binding unless they are made in accordance with this Act and the regulations. The rules around the notice that a consumer must give to seek a remedy are set out including the form of notice, the date of effectiveness of notice and the address to which notice should be sent. If a consumer has a right to cancel an agreement, he or she can do so by giving notice. Cancellation of an agreement operates to cancel, as if they never existed, the consumer agreement, related agreements, related guarantees and security and related credit agreements. If a consumer agreement is cancelled, the supplier must refund payment and return goods delivered on a trade-in or refund an amount equal to the trade-in allowance.

Consumers may request that a credit issuer cancel or reverse a charge where the card was used to pay for a consumer agreement that was cancelled, to make a payment that was received in contravention of this Act or to make a payment that was collected in respect of unsolicited goods or services. A consumer may make such a request after the consumer has given notice of cancellation of the agreement or of a demand for a refund and the supplier has not refunded the payment within the required period. In these circumstances, the credit card issuer must acknowledge receipt of the request and cancel or reverse the charge or, after an investigation, send to the consumer a written notice explaining why the issuer is of the opinion that the consumer is not entitled to cancel the agreement or demand a refund.

If a consumer has a right to an action under this Act, the consumer may commence the action in the Superior Court of Justice. If successful in the action, the court must order, unless it would be inequitable in the circumstances, that the consumer recover the full payment to which he or she is entitled under this Act and the goods delivered on a trade-in or an amount equal to a trade-in allowance. It may also order exemplary or punitive damages or other appropriate relief.

Part X: Powers and Duties of Minister
and Director

The Minister may disseminate information to educate and advise consumers, may provide information on alternative dispute resolution to consumers and may enforce this Act and other legislation for the protection of consumers. To enforce the Act and other legislation to protect consumers, the Minister may enter into agreements with law enforcement agencies and share and exchange information with them. The Director shall maintain a public record of undertakings of voluntary compliance, compliance orders, orders to cease false advertising and of other prescribed documents and information. Both the Minister and the Deputy Minister may delegate their powers and duties under this Act.

Part XI: General

A number of matters are dealt with under this Part. The Ministry may receive complaints and make inquiries. The Director may appoint investigators. With the assistance of a warrant, a search may be undertaken. In exigent circumstances, a search of premises other than premises that are a dwelling may be made without a warrant. The Director may order a person to cease making false, misleading or deceptive statements, which order takes effect immediately but is subject to a right of appeal. The Director may also make freeze orders if it is advisable for the protection of consumers and an investigation has been undertaken, a compliance order has been made or there has been an undertaking of voluntary compliance. The Director may propose to make a compliance order and, if it is in the public interest, may make an order for immediate compliance. Both are subject to appeal with a right to appeal to the Licence Appeal Tribunal. If the Director has made or is considering making an order against a person, the person may enter into an undertaking of voluntary compliance. If the person is not complying with the Act, the Director may apply to the Superior Court of Justice for a compliance order.

A person who fails to comply with an order, direction or other requirement under the Act is guilty of an offence. In addition, the failure to comply or contravention of the listed provisions is also an offence, as is an attempt to commit any of the listed offences. Officers and directors are guilty of an offence if they fail to take reasonable care to prevent a corporation from committing an offence. On conviction, individuals are liable to a $50,000 fine or imprisonment of up to two years less a day and corporations are liable to a fine of no more than $250,000. Restitution and compensation may also be ordered on conviction.

If the payment of a fine is in default for more than 60 days, the Director may disclose the name of the defaulter, the date of the default and the amount of the fine to a consumer reporting agency. If the fine is paid, the Director within 10 days after having notice of the payment shall notify the agency. The Director may also create a lien against the property of a person who has failed to pay a fine. Generally, matters that arise during the course of exercising powers or carrying out duties under the Act are to be kept confidential. This Part allows the Director to issue a certificate certifying as evidence of the facts stated in it. There are extensive regulation making powers.

SCHEDULE B
MOTOR VEHICLE DEALERS
ACT, 2002

The Bill revises and replaces the Motor Vehicle Dealers Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that motor vehicle dealers and salespersons trading in motor vehicles be registered and that salespersons should not trade in motor vehicles on behalf of a motor vehicle dealer unless they are registered to trade on behalf of that dealer. An individual who trades in a motor vehicle on their own account or for a member of their family is exempt from registration if the motor vehicle has been used primarily for personal use.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants. The registrar may inspect the business premises of an applicant for registration. There are powers to inspect registrants and to appoint investigators. Investigators may conduct searches with the assistance of a warrant to investigate breaches of the statute. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee may be established. If these committees are established, registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants where it is advisable for the protection of the customers of the registrant or former registrant. The director may apply to the courts for the appointment of a receiver and manager to take the control of the business of a registrant in certain circumstances.

Motor vehicle dealers are required to ensure that the salespersons that they employ carry out their duties in compliance with the Act. Motor vehicle dealers are required to maintain a trust account.

Falsifying information, the furnishing of false information and false advertising are all prohibited. The registrar may make orders in respect of false advertising and may require that advertising be pre-approved before publication if an order in respect of false advertising has been made. The director may apply for a restraining order if a person is not complying with the Act.

The Bill contains an offence section. A person who contravenes the Act is guilty of an offence and, on conviction, is liable to a fine of up to $50,000 and up to two years imprisonment if the person is an individual and a fine of up to $250,000 if the person is a corporation. If there is a conviction, there may also be an order for restitution or compensation. If a fine is not paid, a lien may be registered against the person's property.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister.

The Motor Vehicle Compensation Fund established under the Act is continued. The Fund is managed by a board of trustees and is supported by levies and payments imposed on registrants. The Fund shall be held in trust for the benefit of customers who are entitled to make a claim against it. The registrar may make arrangements with registrants for the payment of money owed to the Fund and the failure to make payments may result in the registrar refusing to renew the registrant's registration.

The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE C
REAL ESTATE AND BUSINESS
BROKERS ACT, 2002

The Bill revises and replaces the Real Estate and Business Brokers Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that persons trading in real estate be registered as brokerages, brokers or salespersons, subject to certain specified exemptions. The Bill creates the new category of "brokerage" for registration. A brokerage is a business that trades in real estate on behalf of others.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants and the powers to both inspect and investigate are continued from the Act, but are modified to require warrants in all investigations. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee are established and registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants if it is advisable for the protection of the clients of the registrant or former registrant.

Brokerages are required to ensure that the salespersons and brokers they employ carry out their duties in compliance with the statute.

Brokerages are required to maintain trust accounts and unclaimed funds are passed on to the administrative authority and in certain circumstances to the Minister of Finance. The rights of persons who may claim entitlement to such funds are maintained.

There are provisions that are intended to prevent conflicts of interest and unethical behaviour, including restrictions against employing unregistered persons, against salespersons or brokers acting for any brokerage other than the one that employs them and against inducing any party to certain real estate agreements to break the agreement for the purpose of entering another agreement. Providing false information and false advertising are also prohibited.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister. The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE D
TRAVEL INDUSTRY ACT, 2002

The Bill revises and replaces the Travel Industry Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that a person who acts as or holds themself out as a travel agent or travel wholesaler be registered. In order to bring an action for commission or other remuneration for services in connection with the sale of travel services, the person must be registered or the action may be stayed. Registrations are not transferable.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants. There are powers to inspect registrants and to conduct investigations. Investigators are authorized to search premises with a warrant. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee may be established and registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants where it is advisable for the protection of the customers of the registrant or former registrant. The director may apply to the courts for the appointment of a receiver and manager to take the control of the business of a registrant in certain circumstances.

Falsifying information, the furnishing of false information and false advertising are all prohibited. The registrar may make orders in respect of false advertising and may require that advertising be pre-approved before publication if an order in respect of false advertising has been made. The director may apply for a restraining order if a person is not complying with the Act.

The Bill contains an offence section. A person who contravenes the Act is guilty of an offence and, on conviction, is liable to a fine of up to $50,000 and up to two years imprisonment if the person is an individual and a fine of up to $250,000 if the person is a corporation. If there is a conviction, there may also be an order for restitution or compensation. If a fine is not paid, a lien may be registered against the person's property.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister.

The Travel Industry Compensation Fund established under the Act is continued. The provisions relating to the administration and management of the Fund will be set out in the regulations.

The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE E
AMENDMENTS TO OTHER ACTS

The Schedule contains amendments that are related to the enactments of Schedules A, B, C and D.

The Schedule repeals the Business Practices Act, the Consumer Protection Act, the Consumer Protection Bureau Act, the Loan Brokers Act, 1994, the Motor Vehicle Dealers Act, the Motor Vehicle Repair Act, the Prepaid Services Act, the Real Estate and Business Brokers Act and the Travel Industry Act.

Amendments consequential to the enactments of the other Schedules are made to the Collection Agencies Act, the Consumer Reporting Act, the Discriminatory Business Practices Act, the Licence Appeal Tribunal Act, 1999, the Mortgage Brokers Act, the Registered Insurance Brokers Act, the Safety and Consumer Statutes Administration Act, 1996 and the Toronto Islands Residential Community Stewardship Act, 1993.

The Ministry of Consumer and Business Services Act is amended to permit the Minister to appoint investigators to investigate matters that relate to an Act that has been assigned to the Minister, to assign powers and duties to investigators and to permit the Minister to appoint experts to assist in the investigation. The Act is also amended to allow documents made under the Act and signed by the Minister or Deputy Minister to be receivable in evidence without having to prove the office or signature of the Minister or Deputy Minister.

[37] Bill 180 As Amended by Standing Committee (PDF)

Bill 180 2002

An Act to enact,
amend or revise various Acts
related to consumer protection

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Consumer Protection Act, 2002 enacted

1. Schedule A to this Act is hereby enacted.

Motor Vehicle Dealers Act, 2002 enacted

2. Schedule B to this Act is hereby enacted.

Real Estate and Business Brokers Act, 2002 enacted

3. Schedule C to this Act is hereby enacted.

Travel Industry Act, 2002 enacted

4. Schedule D to this Act is hereby enacted.

Amendments to other Acts

5. Schedule E to this Act is hereby enacted.

Commencement

6. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same

(2) The Schedules to this Act come into force as provided in the commencement section at the end of each of the Schedules.

Same

(3) If a Schedule provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

7. The short title of this Act is the Consumer Protection Statute Law Amendment Act, 2002.

SCHEDULE A
CONSUMER PROTECTION ACT, 2002

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

2.

3.

4.

5.

Interpretation

Application

Anti-avoidance

Consumer agreements

Disclosure of information

PART II
CONSUMER RIGHTS AND
WARRANTIES

6.

7.

8.

9.

10.

11.

12.

13.

Rights reserved

No waiver of substantial and procedural rights

Class proceedings

Quality of services

Estimates

Ambiguities to benefit consumer

Charging consumers for assistance

Unsolicited goods or services: relief from legal
obligations

PART III
UNFAIR PRACTICES

14.

15.

16.

17.

18.

19.

False, misleading or deceptive representation

Unconscionable representation

Renegotiation of price

Unfair practices prohibited

Rescinding agreement

Transition

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER
AGREEMENTS

Definitions and Application

20.

Interpretation

Future Performance Agreements

21.

22.

23.

24.

25.

26.

Application of sections

Requirements for future performance agreements

Cancelling future performance agreements

Rights in other goods not enforceable

No repossession after two-thirds paid except by leave of court

Late delivery

Time Share Agreements

27.

28.

Requirements for time share agreements

Cancellation: cooling-off period

Personal Development Services

29.

30.

31.

32.

33.

34.

35.

36.

Application

Requirements for personal development services agreements

Agreements for one year only

Only one agreement

Initiation fee

Instalment plans

Cancellation: cooling-off period

Trustee for payment for unavailable services

Internet Agreements

37.

38.

39.

40.

Application

Disclosure of information

Copy of internet agreement

Cancellation of internet agreement

Direct Agreements

41.

42.

43.

Application

Requirements for direct agreements

Cancellation: cooling-off period

Remote Agreements

43.1

43.2

43.3

43.4

Application

Disclosure of information

Copy of remote agreement

Cancellation of remote agreement

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

44.

45.

46.

47.

48.

49.

50.

Definitions

Requirements for consumer agreements

Advance payments prohibited

Cancellation: cooling-off period

Officers, directors

Prohibited representations

Transition

PART VI
REPAIRS TO
MOTOR VEHICLES AND
OTHER GOODS

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

Definitions

Estimates

Estimate fee

Authorization required

Authorization not in writing

Posting signs

Return of parts

Invoice

Warranty for vehicles

Consistent cost

Transition

PART VII
CREDIT AGREEMENTS

General

62.

63.

64.

65.

66.

67.

68.

69.

70.

71.

72.

Definitions

Non-application of Part

Agreement for credit card

Limiting liability for unauthorized charges

Consequence of non-disclosure

Correcting errors

Required insurance

Termination of optional services

Deferral of payments

Default charges

Prepayment

Disclosure

73.

74.

75.

76.

77.

Representations

Disclosure of brokerage fee

Initial disclosure statement

Subsequent disclosure: fixed credit

Subsequent disclosure: open credit

Assignment of Security for Credit

78.

79.

80.

81.

Assignment of negotiable instrument

Obligations of assignee of lender

Order to pay indemnity

Allowance for trade-in subject to adjustment

PART VIII
LEASING

82.

83.

84.

85.

86.

Definitions

Application of Part

Advertising

Disclosure statement

Compensation re: termination of lease

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

87.

88.

88.1

89.

90.

91.

92.

93.

94.

95.

96.

Application

Form of consumer notice

Consumer agreements not binding

Cancellation

Effect of cancellation

Obligations on cancellation

Title to goods under trade-in arrangement

Illegal payments

Consumer's recourse re: credit card charges

Action in Superior Court of Justice

Waiver of notice

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

97.

98.

99.

Powers of Minister

Duties of Director

Fees

PART XI
GENERAL

100.

101.

102.

103.

104.

105.

106.

107.

108.

109.

110.

111.

112.

113.

114.

115.

116.

117.

118.

Ministry receives complaints and makes inquiries

Appointment of investigators

Search warrant

Searches in exigent circumstances

False, misleading or deceptive representation

Freeze order

Compliance order

Order for immediate compliance

Appeal

Undertaking of voluntary compliance

Restraining orders

Offences

Orders for compensation, restitution

Default in payment of fines

Liens and charges

Matters confidential

Service by the Director of notice or order

Certificate as evidence

Lieutenant Governor in Council regulations:
general

PART XII
COMMENCEMENT AND SHORT TITLE

119.

120.

Commencement

Short Title

______________

PART I
INTERPRETATION AND APPLICATION

Interpretation

1. In this Act,

"consumer" means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes; ("consommateur")

"consumer agreement" means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment; ("convention de consommation")

"consumer transaction" means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement; ("opération de consommation")

"credit card" means a card or device under which a borrower can obtain advances under a credit agreement, as defined in Part VII, for open credit; ("carte de crédit")

"Director" means the person designated as the Director under the Ministry of Consumer and Business Services Act; ("directeur")

"future performance agreement" means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement; ("convention à exécution différée")

"goods" means any type of property; ("marchandises")

"initiation fee" means a fee in addition to an annual membership fee; ("droit d'entrée")

"loan broker" means,

(a) a supplier of loan brokering, or

(b) a person who holds themself out to be a person described in clause (a); ("courtier en prêts")

"loan brokering" means services or goods that are intended to assist a consumer in obtaining a loan of money, including obtaining a loan of money from the loan broker's own funds; ("courtage en prêts")

"loan of money" includes credit that is made available to the consumer; ("prêt d'argent")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act; ("ministre")

"Ministry" means the Ministry of Consumer and Business Services; ("ministère")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"open credit" means credit under a credit agreement, as defined in Part VII, that,

(a) anticipates multiple advances to be made as requested by the borrower in accordance with the agreement, and

(b) does not define the total amount to be advanced to the borrower under the agreement, although it may impose a credit limit; ("crédit en blanc")

"payment" means consideration of any kind, including an initiation fee; ("paiement")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"representation" means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumers; ("assertion")

"services" means anything other than goods, including any service, right, entitlement or benefit; ("services")

"supplier" means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier; ("fournisseur")

"trade-in allowance" means the greater of,

(a) the price or value of the consumer's goods or services as set out in a trade-in arrangement, and

(b) the market value of the consumer's goods or services when taken in trade under a trade-in arrangement; ("valeur de reprise")

"trade-in arrangement" means an arrangement under which a consumer agrees to sell his or her own goods or services to the supplier and the supplier accepts the goods or services as all or part of the consideration for supplying goods or services; ("convention de reprise")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; ("Tribunal")

"year" means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. ("année")

Application

2. (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

Exceptions

(2) This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Mortgage Brokers Act or the Loan and Trust Corporations Act;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Tenant Protection Act, 1997.

Same

(3) This Act does not apply to the supply of a public utility or to any charge for the transmission, distribution or storage of gas as defined in the Ontario Energy Board Act, 1998 if such charge has been approved by the Ontario Energy Board.

Marketers of gas, retailers of electricity

(4) Despite subsection (3), this Act applies to a transaction with,

(a) a gas marketer who is a supplier; and

(b) a retailer of electricity who is a supplier.

Definitions

(5) In this section,

"gas marketer" means a gas marketer as defined in Part IV of the Ontario Energy Board Act, 1998; ("agent de commercialisation de gaz")

"public utility" means water, artificial or natural gas, electrical power or energy, steam or hot water; ("service public")

"retailer of electricity" means a retailer as defined in the Electricity Act, 1998. ("détaillant en électricité")

Anti-avoidance

3. In determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form.

Consumer agreements

4. A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions that apply to each type of agreement for which it meets the criteria except where the application of the provisions is excluded as prescribed.

Disclosure of information

5. (1) If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent.

Delivery of information

(2) If a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer.

PART II
CONSUMER RIGHTS
AND WARRANTIES

Rights reserved

6. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law.

No waiver of substantive and procedural rights

7. (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

Limitation on effect of term requiring arbitration

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

Procedure to resolve dispute

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(5) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Class proceedings

8. (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding.

Procedure to resolve dispute

(2) After a dispute that may result in a class proceeding arises, the consumer, the supplier and any other person involved in it may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(3) A settlement or decision that results from the procedure agreed to under subsection (2) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(4) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (1) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Quality of services

9. (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

Quality of goods

(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.

Same

(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

Same

(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

Estimates

10. (1) If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than 10 per cent.

Performance of consumer agreement

(2) If a supplier charges an amount that exceeds the estimate by more than 10 per cent, the consumer may require that the supplier provide the goods or services at the estimated price.

Subsequent agreement

(3) Nothing in this section prevents a consumer and a supplier from agreeing to amend the estimate or price in a consumer agreement, if the consumer requires additional or different goods or services.

Ambiguities to benefit consumer

11. Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer.

Charging consumers for assistance

12. No person shall charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act, unless, before the consumer agrees to pay the charge, the person discloses the entitlement's existence and direct availability to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly.

Unsolicited goods or services:
relief from legal obligations

13. (1) Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal.

No payment for unsolicited goods or services

(2) No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft.

Request not inferred

(3) A request for goods or services shall not be inferred solely on the basis of payment, inaction or the passing of time.

Material change deemed unsolicited

(4) If a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in such goods or services, the goods or services shall be deemed 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.

Form of consent

(5) 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.

Demand

(6) If a supplier has received a payment in respect of unsolicited goods or services, the consumer who made the payment may demand a refund of the payment in accordance with section 88 within one year after having made the payment.

Refund

(7) A supplier who receives a demand for a refund under subsection (6) shall refund the payment within the prescribed period of time.

Consumer may commence action

(8) The consumer who made the payment may commence an action to recover the payment in accordance with section 95.

Definition

(9) In this section,

"unsolicited goods or services" means,

(a) goods that are supplied to a consumer who did not request them but does not include,

(i) goods that the recipient knows or ought to know are intended for another person,

(ii) a change to periodically supplied goods, if the change in goods is not a material change, or

(iii) goods supplied under a written future performance agreement that provides for the periodic supply of goods to the recipient without further solicitation, or

(b) services that are supplied to a consumer who did not request them but does not include,

(i) services that were intended for another person from the time the recipient knew or ought to have known that they were so intended,

(ii) a change to ongoing or periodic services that are being supplied, if the change in the services is not a material change, or

(iii) services supplied under a written future performance agreement that provides for the ongoing or periodic supply of services to the recipient without further solicitation.

PART III
UNFAIR PRACTICES

False, misleading or deceptive representation

14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.

5. A representation that the goods have been used to an extent that is materially different from the fact.

6. A representation that the goods or services are available for a reason that does not exist.

7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.

11. A representation that a specific price advantage exists, if it does not.

12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.

13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.

14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.

16. A representation that misrepresents the purpose of any charge or proposed charge.

17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.

Unconscionable representation

15. (1) It is an unfair practice to make an unconscionable representation.

Same

(2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person's employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer;

(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.

Renegotiation of price

16. It is an unfair practice for a person to use his, her or its custody or control of a consumer's goods to pressure the consumer into renegotiating the terms of a consumer transaction.

Unfair practices prohibited

17. (1) No person shall engage in an unfair practice.

One act deemed practice

(2) A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice.

Advertising excepted

(3) It is not an unfair practice for a person, on behalf of another person, to print, publish, distribute, broadcast or telecast a representation that the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business.

Rescinding agreement

18. (1) Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.

Remedy if rescission not possible

(2) A consumer is entitled to recover the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to damages, or both, if rescission of the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services is no longer possible; or

(b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value.

Notice

(3) A consumer must give notice within one year after entering into the agreement if,

(a) the consumer seeks to rescind an agreement under subsection (1); or

(b) the consumer seeks recovery under subsection (2), if rescission is not possible.

Form of notice

(4) The consumer may express notice in any way as long as it indicates the intention of the consumer to rescind the agreement or to seek recovery where rescission is not possible and the reasons for so doing and the notice meets any requirements that may be prescribed.

Delivery of notice

(5) Notice may be delivered by any means.

When notice given

(6) If notice is delivered other than by personal service, the notice shall be deemed to have been given when sent.

Address

(7) The consumer may send or deliver the notice to the person with whom the consumer contracted at the address set out in the agreement or, if the consumer did not receive a written copy of the agreement or the address of the person was not set out in the agreement, the consumer may send or deliver the notice,

(a) to any address of the person on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the person known by the consumer.

Commencement of an action

(8) If a consumer has delivered notice and has not received a satisfactory response within the prescribed period, the consumer may commence an action.

Same

(9) If a consumer has a right to commence an action under this section, the consumer may commence the action in the Superior Court of Justice.

Evidence

(10) In the trial of an issue under this section, oral evidence respecting an unfair practice is admissible despite the existence of a written agreement and despite the fact that the evidence pertains to a representation in respect of a term, condition or undertaking that is or is not provided for in the agreement.

Exemplary damages

(11) A court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section.

Liability

(12) Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the consumer is entitled under this section.

Limited liability of assignee

(13) If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment under such an agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the consumer.

Effect of rescission

(14) When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel, as if they never existed,

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended, arranged or facilitated by the person with whom the consumer reached the agreement, or

(ii) otherwise related to the agreement.

Waiver of notice

(15) If a consumer is required to give notice under this Part in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

Transition

19. (1) This Part applies to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Business Practices Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to consumer transactions that occurred before its repeal.

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER AGREEMENTS

Definitions and Application

Interpretation

20. (1) In this Part,

"direct agreement" means a consumer agreement that is negotiated or concluded in person at a place other than,

(a) at the supplier's place of business, or

(b) at a market place, an auction, trade fair, agricultural fair or exhibition; ("convention directe")

"internet" means the decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols; ("Internet")

"internet agreement" means a consumer agreement formed by text-based internet communications; ("convention électronique")

"membership fee" means the amount payable by a consumer for personal development services; ("droit d'adhésion")

"personal development services" means,

(a) services provided for,

(i) health, fitness, diet or matters of a similar nature,

(ii) modelling and talent, including photo shoots relating to modelling and talent, or matters of a similar nature,

(iii) martial arts, sports, dance or similar activities, and

(iv) other matters as may be prescribed, and

(b) facilities provided for or instruction on the services referred to in clause (a) and any goods that are incidentally provided in addition to the provision of the services; ("services de perfectionnement personnel")

"remote agreement" means a consumer agreement entered into when the consumer and supplier are not present together; ("convention à distance")

"time share agreement" means a consumer agreement by which a consumer,

(a) acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b) is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel. ("convention de multipropriété")

Limitations on cancellation

(2) Despite sections 90 and 91, in the prescribed circumstances, the effect of cancellation of a consumer agreement to which this Part applies by a consumer and the obligations arising as a result of the cancellation of the agreement may be subject to such limitations as may be prescribed.

Future Performance Agreements

Application of sections

21. (1) Sections 22 to 26 apply to future performance agreements if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Exception

(2) Sections 22 to 26 do not apply to agreements that are future performance agreements solely because of an open credit arrangement.

Transition

(3) Sections 22 to 26 apply to future performance agreements entered into on or after the day this section is proclaimed in force.

Same

(4) The Consumer Protection Act, as it existed immediately before its repeal under the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to executory contracts entered into before its repeal.

Requirements for future performance agreements

22. Every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancelling future performance agreements

23. A consumer may cancel a future performance agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements required by section 22.

Rights in other goods not enforceable

24. Any provision in any future performance agreement or in any security agreement incidental to such an agreement under which the supplier may acquire title to, possession of or any rights in any goods of the consumer, other than the goods passing to the consumer under the agreement, is not enforceable.

No repossession after two-thirds paid except by leave of court

25. (1) Where a consumer under a future performance agreement has paid two-thirds or more of his or her payment obligation as fixed by the agreement, any provision in the agreement, or in any security agreement incidental to the agreement, under which the supplier may retake possession of or resell the goods or services upon default in payment by the consumer is not enforceable except by leave obtained from the Superior Court of Justice.

Powers of court

(2) Upon an application for leave under subsection (1), the court may, in its discretion, grant leave to the supplier or refuse leave or grant leave upon such terms and conditions as the court considers advisable.

Late delivery

26. (1) A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier,

(a) does not make delivery within 30 days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing; or

(b) does not begin performance of his, her or its obligations within 30 days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing.

Delivery or commencement date not specified

(2) If the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into.

Forgiveness of failure

(3) If, after the period in subsection (1) or (2) has expired, the consumer agrees to accept delivery or authorize commencement, the consumer may not cancel the agreement under this section.

Deemed delivery or performance

(4) For the purposes of subsections (1) and (2), a supplier is considered to have delivered or commenced performance under a future performance agreement if,

(a) delivery was attempted but was refused by the consumer at the time that delivery was attempted or delivery was attempted but not made because no person was available to accept delivery for the consumer on the day for which reasonable notice was given to the consumer that there was to be delivery; or

(b) commencement was attempted but was refused by the consumer at the time that commencement was attempted or commencement was attempted but did not occur because no person was available to enable commencement on the day for which reasonable notice was given to the consumer that commencement was to occur.

Time Share Agreements

Requirements for time share agreements

27. Every time share agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

28. (1) A consumer may, without any reason, cancel a time share agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a time share agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 27.

Personal Development Services

Application

29. (1) Sections 30 to 36 apply in respect of personal development services or proposed personal development services for which,

(a) payment in advance is required; and

(b) the consumer's total potential payment obligation, excluding cost of borrowing, exceeds a prescribed amount.

Exceptions

(2) Sections 30 to 36 do not apply to personal development services that are provided,

(a) on a non-profit or co-operative basis;

(b) by a private club primarily owned by its members;

(c) as an incidental part of the goods or services that are being supplied to the consumer;

(d) by a supplier funded or run by a charitable or municipal organization or by the Province of Ontario or any of its agencies; or

(e) by a golf club.

Transition

(3) Sections 30 to 36 do not apply to a personal development services agreement in existence before this section is proclaimed in force but do apply if a pre-existing agreement is extended or renewed after this section is proclaimed in force.

Same

(4) Agreements that are in existence before sections 30 to 36 are proclaimed in force are governed by the Prepaid Services Act as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002.

Requirements for personal development services
agreements

30. (1) Every personal development services agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Payments not required or accepted

(2) No supplier shall require or accept payment for personal development services from a consumer with whom the supplier does not have an agreement that meets the requirements established under subsection (1).

Agreements for one year only

31. (1) No personal development services agreement may be made for a term longer than one year after the day that all the services are made available to the consumer.

Deemed separate agreement

(2) Any personal development services agreement that provides for a renewal or an extension of the agreement beyond one year shall be deemed to create a separate agreement for each renewal or extension of one year or less.

Renewal provision

(3) A personal development services agreement that provides for the renewal or extension of the agreement is not valid unless the supplier complies with the prescribed requirements.

Deemed non-renewal of agreement

(4) A personal development services agreement that provides for a renewal or extension of the agreement shall be deemed not to be renewed or extended if the consumer notifies the supplier, before the time for renewal or extension, that the consumer does not want to renew or extend.

Monthly renewals

(5) Subsections (2) and (3) do not apply to an agreement providing for successive monthly renewals if the consumer has the option of terminating on one month's notice or less.

Only one agreement

32. (1) No supplier shall enter into a new agreement for personal development services with a consumer with whom the supplier has an existing agreement for personal development services unless the new agreement is for personal development services that are distinctly different from the services provided under the existing agreement.

New agreement void

(1.1) Any new agreement entered into in contravention of subsection (1) is void.

Same

(2) For the purposes of subsection (1), a different term or a different commencement date does not constitute a distinct difference in the personal development services to be provided.

Renewals exempted

(3) Nothing in this section prevents a personal development services agreement from being renewed during the term of the agreement provided that the renewal meets the requirements under section 31.

Initiation fee

33. No supplier of personal development services shall,

(a) charge a consumer more than one initiation fee; or

(b) charge an initiation fee that is greater than twice the annual membership fee.

Instalment plans

34. (1) Every supplier of personal development services shall make available to consumers at least one plan for instalment payments of membership fees and initiation fees, if applicable, that allow consumers to make equal monthly payments over the term of the personal development services agreement.

Same

(2) No supplier shall provide an instalment payment plan through which the total amount paid by instalments exceeds the membership or initiation fee, if applicable, by more than 25 per cent.

Cancellation: cooling-off period

35. (1) A consumer may, without any reason, cancel a personal development services agreement at any time within 10 days after the later of receiving the written copy of the agreement and the day all the services are available.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a personal development services agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 30.

Trustee for payment for unavailable services

36. (1) No supplier shall receive payment from a consumer for personal development services that are not available at the time the payment is made except if the payment is made through a trust corporation registered under the Loan and Trust Corporations Act that has agreed to act as a trustee for the payment.

Exception

(2) Subsection (1) does not apply when one of the services that is not available is the use of a facility and the consumer has agreed in writing to use another facility provided by the supplier until the facility contracted for is available.

Facility not available

(3) If a facility is not available for use on the day specified in the agreement, the trustee shall refund all payment received from the consumer unless the consumer agrees in writing to permit the trustee to retain the payment.

Extension

(4) No permission given under subsection (3) applies for longer than 90 days but a subsequent permission may be given on the expiration of a permission.

Duties of trustee

(5) Where a supplier has a trustee under subsection (1),

(a) any notice to the trustee shall be deemed to be notice to the supplier; and

(b) any money payable by the supplier is payable by the trustee to the extent that the trustee holds sufficient trust funds for that purpose.

Same

(6) Every trustee under subsection (1) shall, upon receiving any payment from a consumer, provide the consumer with written confirmation of receipt of the payment and of the fact that the payment will be dealt with in accordance with sections 30 to 35 and with this section.

Same

(7) No trustee shall release to a supplier funds received from a consumer until the personal development services are available.

Same

(8) The trustee shall release the funds held under this section to the consumer if the consumer cancels the personal development services agreement in accordance with this Act.

Internet Agreements

Application

37. Sections 38 to 40 apply to an internet agreement if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Disclosure of information

38. (1) Before a consumer enters into an internet agreement, the supplier shall disclose the prescribed information to the consumer.

Express opportunity to accept or decline agreement

(2) The supplier shall provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it.

Manner of disclosure

(3) In addition to the requirements set out in section 5, disclosure under this section shall be accessible and shall be available in a manner that ensures that,

(a) the consumer has accessed the information; and

(b) the consumer is able to retain and print the information.

Copy of internet agreement

39. (1) A supplier shall deliver to a consumer who enters into an internet agreement a copy of the agreement in writing within the prescribed period after the consumer enters into the agreement.

Content of internet agreement

(2) The copy of the internet agreement shall include such information as may be prescribed.

Deemed supply of internet agreement

(3) For the purposes of subsection (1), a supplier is considered to have delivered a copy of the internet agreement to the consumer if the copy is delivered in the prescribed manner.

Cancellation of internet agreement

40. (1) A consumer may cancel an internet agreement at any time from the date the agreement is entered into until seven days after the consumer receives a copy of the agreement if,

(a) the supplier did not disclose to the consumer the information required under subsection 38 (1); or

(b) the supplier did not provide to the consumer an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it.

Same

(2) A consumer may cancel an internet agreement within 30 days after the date the agreement is entered into, if the supplier does not provide the consumer with a copy of the agreement pursuant to section 39.

Direct Agreements

Application

41. (1) Sections 42 and 43 apply to direct agreements if the consumer's total potential payment obligations under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Transition

(2) Sections 42 and 43 apply to direct agreements entered into on or after the day this section is proclaimed in force.

Same

(3) The Consumer Protection Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to direct sales contracts entered into before its repeal.

Requirements for direct agreements

42. Every direct agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

43. (1) A consumer may, without any reason, cancel a direct agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a direct agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 42.

Remote Agreements

Application

43.1 Sections 43.2 to 43.4 apply to remote agreements if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Disclosure of information

43.2 Before a consumer enters into a remote agreement, the supplier shall disclose the prescribed information to the consumer and shall satisfy the prescribed requirements.

Copy of remote agreement

43.3 (1) A supplier shall deliver to a consumer who enters into a remote agreement a copy of the agreement in writing within the prescribed period after the consumer enters into the agreement.

Content of remote agreement

(2) The copy of the remote agreement shall include such information as may be prescribed.

Deemed supply of remote agreement

(3) For the purposes of subsection (1), a supplier is considered to have delivered a copy of the remote agreement to the consumer if the copy is delivered in the prescribed manner.

Cancellation of remote agreement

43.4 (1) A consumer may cancel a remote agreement at any time from the date the agreement is entered into until seven days after the consumer receives a copy of the agreement if the supplier fails to comply with section 43.2.

Same

(2) A consumer may cancel a remote agreement within one year after the date the agreement is entered into if the supplier does not provide the consumer with a copy of the agreement pursuant to section 43.3.

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

Definitions

44. In this Part,

"consumer report", "credit information", "file" and "personal information" each have the same meaning as in section 1 of the Consumer Reporting Act; ("rapport sur le consommateur", "renseignements sur la solvabilité", "dossier", "renseignements personnels")

"credit repair" means services or goods that are intended to improve a consumer report, credit information, file or personal information, including a credit record, credit history or credit rating; ("redressement de crédit")

"credit repairer" means,

(a) a supplier of credit repair, or

(b) a person who holds themself out as a person described in clause (a); ("redresseur de crédit")

"regulated operator" means,

(a) a person who is a credit repairer or a loan broker, or

(b) a supplier who supplies such goods or services as may be prescribed or a person who holds themself out as a supplier of such goods or services. ("exploitant réglementé")

Requirements for consumer agreements

45. Every consumer agreement for loan brokering, credit repair or for the supply of such other goods or services as may be prescribed shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Advance payments prohibited

46. (1) No regulated operator shall require or accept any payment or any security for a payment, directly or indirectly, from or on behalf of a consumer unless and until,

(a) in respect of loan brokering, the consumer receives the loan of money that the loan broker has assisted to arrange;

(b) in respect of credit repair, the credit repairer causes a material improvement to the consumer report, credit information, file, personal information, credit record, credit history or credit rating of the consumer; or

(c) in respect of the supply of such other goods or services as may be prescribed, the prescribed requirements are met.

Security arrangement void

(2) Every arrangement by which a regulated operator takes security in contravention of subsection (1) is void.

Cancellation: cooling-off period

47. (1) A consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may, without any reason, cancel the agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may cancel the agreement within one year after the date of entering into it if the consumer does not receive a copy of the agreement that meets the requirements under section 45.

Officers, directors

48. The officers and directors of a regulated operator are jointly and severally liable for any remedy in respect of which a person is entitled to commence a proceeding against the operator.

Prohibited representations

49. A regulated operator shall not communicate or cause to be communicated any representation that is prescribed as a prohibited representation.

Transition

50. (1) Sections 44 to 49 apply to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Loan Brokers Act, 1994, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to all agreements to assist a consumer in obtaining a loan of money entered into before its repeal.

Same

(3) Sections 13.1 to 13.8 of the Consumer Reporting Act, as they existed immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to all consumer transactions that occurred before their repeal.

PART VI
REPAIRS TO MOTOR VEHICLES
AND OTHER GOODS

Definitions

51. In this Part,

"estimate" means an estimate of the total cost of work on and repairs to the goods being repaired; ("devis")

"repairer" means a supplier who works on or repairs vehicles or other prescribed goods; ("réparateur")

"vehicle" means a motor vehicle as defined in the Highway Traffic Act. ("véhicule")

Estimates

52. (1) No repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements.

Same

(2) Despite subsection (1), a repairer may charge for work or repairs without giving an estimate if,

(a) the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;

(b) the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and

(c) the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer.

Estimate fee

53. (1) Subject to subsection (3), no repairer shall charge a fee for an estimate unless the consumer is told in advance that a fee will be charged and the amount of the fee.

Same

(2) A fee for an estimate shall be deemed to include the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer.

Same

(3) A repairer shall not charge a fee for an estimate if the work or repairs in question are authorized and carried out.

Same

(4) Despite subsection (3), a repairer may charge a fee for an estimate if the repairer is unable to obtain, without unreasonable delay, authorization to proceed with the work or repairs and the goods are reassembled before being worked on or repaired so that the goods can be moved in order to free repair space.

Authorization required

54. (1) No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.

Exceeding estimate prohibited

(2) No repairer shall charge, for work or repairs for which an estimate was given, an amount that exceeds the estimate by more than 10 per cent.

Authorization not in writing

55. If an authorization required by section 52, 53 or 54 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements.

Posting signs

56. A repairer shall post the prescribed signs in accordance with the prescribed requirements.

Return of parts

57. (1) Every repairer shall offer to return to the consumer all parts removed in the course of work or repairs and shall return all such parts unless advised when the work or repairs are authorized that the consumer does not require their return.

Parts kept separate

(2) Every repairer shall keep parts removed from goods being repaired separate from the parts removed from any other goods and, if their return is requested by the consumer, shall return the parts in a clean container.

Exception

(3) Subsections (1) and (2) do not apply to,

(a) parts for which there has been no charge for the part or for work on or repair to the part; or

(b) parts replaced under warranty whose return to the manufacturer or distributor is required.

Invoice

58. The repairer shall, on completion of work or repairs, deliver to the consumer an invoice containing the prescribed information in the prescribed manner.

Warranty for vehicles

59. (1) On the repair of a vehicle, every repairer shall be deemed to warrant all new or reconditioned parts installed and the labour required to install them for a minimum of 90 days or 5,000 kilometres, whichever comes first, or for such greater minimum as may be prescribed.

Same

(2) The warranty in subsection (1) is in addition to the deemed and implied conditions and warranties set out in section 9.

Failure of work or repairs under warranty

(3) The person having charge of a vehicle that becomes inoperable or unsafe to drive because of the failure or inadequacy of work or repairs to which a warranty under this section applies may, when it is not reasonable to return the vehicle to the original repairer, have the failure or inadequacy repaired at the closest facility available for the work or repairs.

Recovery of cost of failed work or repairs

(4) When work or repairs are made under subsection (3), the person entitled to a warranty under this section is entitled to recover from the original repairer the original cost of the work or repairs and reasonable towing charges.

Loss of warranty

(5) A consumer who subjects any vehicle part to misuse or abuse is not entitled to the benefit of the warranty on that part.

Same

(6) No repairer shall refuse to reimburse a consumer because of the operation of subsection (5) unless the repairer has reasonable grounds to believe that the part under warranty was subjected to misuse or abuse.

Return of parts

(7) A consumer who is seeking reimbursement under this section shall return, upon the request and at the expense of the original repairer, the defective parts to the original repairer unless, in the circumstances, it is not reasonably possible for the consumer to do so.

Reimbursement

(8) An original repairer who is required to make a payment under this section is entitled to recover from the supplier of a defective part any amount paid to the consumer under subsection (4).

Consistent cost

60. No repairer shall give an estimate or charge an amount for work or repairs that is greater than that usually given or charged by that repairer for the same work or repairs merely because the cost is to be paid, directly or indirectly, by an insurance company licensed under the Insurance Act.

Transition

61. (1) Sections 51 to 60 apply to all consumer agreements for work or repair that are entered into on or after the day this section is proclaimed in force.

Same

(2) The Motor Vehicle Repair Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, applies to agreements for work or repair to a vehicle entered into before its repeal.

PART VII
CREDIT AGREEMENTS

General

Definitions

62. In this Part,

"advance" means value received by the borrower under a credit agreement as determined in the prescribed manner; ("avance")

"annual percentage rate" means the annual percentage rate in respect of a credit agreement that is determined in the prescribed manner; ("taux de crédit")

"borrower" means the consumer who is a party to a credit agreement or prospective credit agreement who, respectively, receives or will receive credit from the other party but does not include a guarantor; ("emprunteur")

"brokerage fee" means the payment that a borrower makes or agrees to make to a loan broker who assists or attempts to assist the borrower in arranging a credit agreement, and includes an amount that the lender deducts from an advance and pays to the broker; ("frais de courtage")

"cost of borrowing" means all amounts that a borrower is required to pay under or as a condition of entering into a credit agreement other than,

(a) a payment or repayment of a portion of the principal under the agreement as prescribed, and

(b) prescribed charges; ("coût d'emprunt")

"credit agreement" means a consumer agreement under which a lender extends credit to a borrower and includes a loan of money, a supplier credit agreement and a consumer agreement under which a loan of money or supplier credit agreement may occur in the future, but does not include an agreement under which a lender extends credit on the security of a mortgage of real property or consumer agreements of a prescribed type; ("convention de crédit")

"default charge" means a charge imposed on a borrower who does not make a payment as it comes due under a credit agreement or who does not comply with any other obligation under a credit agreement, but does not include interest on an overdue payment; ("frais de défaut")

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

"floating rate" means a rate that bears a specified mathematical relationship to a public index that meets the prescribed requirements; ("taux variable")

"lender" means a supplier who is a party to a credit agreement or prospective credit agreement who, respectively, extends or will extend credit to the borrower and includes a credit card issuer; ("prêteur")

"optional service" means a service that is offered to a borrower in connection with a credit agreement and that the borrower does not have to accept in order to enter into the agreement; ("service facultatif")

"supplier credit agreement" means a consumer agreement, other than a consumer agreement involving leases to which Part VIII applies, under which a supplier or an associate of the supplier, extends fixed credit to a consumer to assist the consumer in obtaining goods or services, other than credit, from the supplier; ("convention de crédit fournisseur")

"supplier creditor" means the supplier or an associate of a supplier in a supplier credit agreement. ("créancier fournisseur")

Non-application of Part

63. (1) This Part does not apply to a supplier credit agreement that,

(a) requires the borrower to make payment in full in a single payment within a certain period after the supplier delivers a written invoice or statement of account to the borrower;

(b) is unconditionally interest-free during the period for payment described in clause (a);

(c) does not provide for any non-interest charges;

(d) is unsecured apart from liens on the goods or services supplied through the agreement that may arise by operation of law; and

(e) the supplier cannot assign in the ordinary course of business other than as security.

Obligations of loan brokers

(2) If a loan broker assists or attempts to assist in the arrangement of credit and the creditor is not in the business of supplying credit, the obligations that this Part would impose on a lender shall be deemed to be obligations of the loan broker and not the creditor, except as prescribed.

Initial disclosure statement

(3) If the borrower pays or is liable to pay a brokerage fee, the initial disclosure statement for the credit agreement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Transitional

(4) Section 72 and subsection 75 (1) do not apply to a credit agreement that the parties have entered into before this section comes into force and sections 24, 25 and 28 of the Consumer Protection Act, as they read immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to that agreement.

Agreement for credit card

64. (1) Despite section 13, a consumer who applies for a credit card without signing an application form or who receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.

Liability

(2) A consumer described in subsection (1) is not liable to pay the lender any amount in respect of the credit card received in the circumstances described in that subsection until the consumer uses the card.

Limiting liability for unauthorized charges

65. The maximum liability of a borrower for unauthorized charges under a credit agreement for open credit may be limited as prescribed.

Consequence of non-disclosure

66. A borrower under a credit agreement is not liable to pay the lender,

(a) the cost of borrowing under a credit agreement if the borrower receives no statements required by this Part; or

(b) as part of the cost of borrowing, any amount in excess of the amounts specified in the statements that this Part requires to be delivered to the borrower in respect of the agreement.

Correcting errors

67. If there is an error in a statement of account issued under a credit agreement for open credit, the lender shall correct the error in accordance with the prescribed requirements.

Required insurance

68. (1) A borrower who is required under a credit agreement to purchase insurance may purchase it from any insurer who may lawfully provide that type of insurance, except that the lender may reserve the right to disapprove, on reasonable grounds, an insurer selected by the borrower.

Disclosure by lender

(2) A lender who offers to provide or to arrange insurance required under a credit agreement shall at the same time disclose to the borrower in writing that the borrower may purchase the insurance through an agent or an insurer of the borrower's choice.

Termination of optional services

69. (1) A borrower may terminate an optional service of a continuing nature provided by the lender or an associate of the lender on giving 30 days notice or such shorter period of notice as is specified in the agreement under which the service is provided.

Liability of borrower

(2) A borrower who terminates an optional service in accordance with subsection (1) is not liable for charges relating to any portion of the service that has not been provided at the time of termination and is entitled to a refund of amounts already paid for those charges.

Notice

(3) Notice under subsection (1) may be given in any way as long as it indicates the intention of the borrower to terminate the optional service and section 88 applies, with necessary modification, to such notice.

Deferral of payments

70. (1) If the lender under a credit agreement invites the borrower to defer making a payment that would otherwise be due under the agreement, the invitation must disclose whether or not interest will accrue on the unpaid amount during the period of the deferral and, if interest will accrue, the invitation must also disclose the interest rate.

Waiver of interest

(2) If the lender does not comply with subsection (1), the lender shall be deemed to have waived the interest that would otherwise accrue during the period.

Default charges

71. A lender is not entitled to impose on a borrower under a credit agreement default charges other than,

(a) reasonable charges in respect of legal costs that the lender incurs in collecting or attempting to collect a required payment by the borrower under the agreement;

(b) reasonable charges in respect of costs, including legal costs, that the lender incurs in realizing a security interest or protecting the subject-matter of a security interest after default under the agreement; or

(c) reasonable charges reflecting the costs that the lender incurs because a cheque or other instrument of payment given by the borrower under the agreement has been dishonoured.

Prepayment

72. (1) A borrower is entitled to pay the full outstanding balance under a credit agreement at any time without any prepayment charge or penalty.

Refund or credit to borrower

(2) If a borrower prepays the full outstanding balance under a credit agreement for fixed credit, the lender shall refund to the borrower or credit the borrower with the portion of the charges, other than charges on account of interest, that was paid by the borrower under the agreement or that was added to the balance under the agreement.

Determining refund or credit

(3) The portion of the charges, other than charges on account of interest, that is to be refunded or credited to the borrower under subsection (2) shall be determined in the prescribed manner.

Partial prepayment

(4) A borrower is entitled to prepay a portion of the outstanding balance under a credit agreement for fixed credit on any scheduled date of the borrower's required payments under the agreement or once in any month without any prepayment charge or penalty.

No credit to borrower

(5) A borrower who makes a payment under subsection (4) is not entitled to a credit for the charges, other than charges on account of interest, that the borrower was required to pay under the agreement or that were added to the outstanding balance under the agreement.

Disclosure

Representations

73. No lender shall make representations or cause representations to be made with respect to a credit agreement, whether orally, in writing or in any other form, unless the representations comply with the prescribed requirements.

Disclosure of brokerage fee

74. (1) If a lender deducts a brokerage fee from an advance, the lender's initial disclosure statement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Loan broker's statement

(2) If a loan broker takes an application from a borrower for a credit agreement and sends it to a lender, the loan broker shall deliver a statement to the borrower containing the information required in the initial disclosure statement referred to subsection (1), any other information required by this Part and any prescribed information.

Lender adopting loan broker's statement

(3) If a loan broker has delivered a statement to the borrower, the lender may adopt it as his, her or its own initial disclosure statement or may elect to deliver a separate initial disclosure statement to the borrower.

Initial disclosure statement

75. (1) Every lender shall deliver an initial disclosure statement for a credit agreement to the borrower at or before the time that the borrower enters into the agreement.

Contents of statement, fixed credit

(2) The initial disclosure statement for a credit agreement for fixed credit shall disclose the prescribed information.

Contents of statement, open credit

(3) The initial disclosure statement for a credit agreement for open credit shall disclose the prescribed information.

Brokerage fee

(4) If a loan broker assists in arranging a credit agreement, the initial disclosure statement shall disclose the prescribed information.

Subsequent disclosure: fixed credit

76. (1) If the interest rate in a credit agreement for fixed credit is a floating rate, the lender shall, at least once every 12 months after entering into the agreement, deliver to the borrower a disclosure statement for the period covered by the statement disclosing the prescribed information.

Increase in interest rate

(2) If the interest rate in a credit agreement for fixed credit is not a floating rate and the agreement allows the lender to change the interest rate, the lender shall, within 30 days after increasing the annual interest rate to a rate that is at least 1 per cent higher than the rate most recently disclosed to the borrower, deliver to the borrower a disclosure statement disclosing the prescribed information.

Insufficient scheduled payments

(3) The lender shall deliver to the borrower notice if the amount of the borrower's scheduled payments required by a credit agreement for fixed credit is no longer sufficient to cover the interest accrued under the agreement because the principal set out in the agreement has increased as a result of default charges or the failure of the borrower to make payments under the agreement.

Notice

(4) The notice under subsection (3) shall be in writing, shall disclose the situation and shall be delivered within 30 days after the point when the amount of the scheduled payments is no longer sufficient to cover the accrued interest.

Amendments

(5) If information disclosed in a disclosure statement delivered under this section changes because the parties have agreed to amend a credit agreement, the lender shall deliver a supplementary disclosure statement to the borrower within 30 days after the amendment is made setting out the changed information, subject to subsection (6).

Exception

(6) If an amendment to a credit agreement consists only of a change in the schedule of required payments by the borrower, it is not necessary for the supplementary disclosure statement to disclose any change to the annual percentage rate or any decrease in the total required payments by the borrower or the total cost of borrowing under the agreement.

Subsequent disclosure: open credit

77. (1) Subject to subsection (2), the lender under a credit agreement for open credit shall deliver a statement of account to the borrower at least once monthly after entering into the agreement.

Exception

(2) The lender is not required to deliver a statement of account to the borrower at the end of any period when, since the most recent statement of account, the borrower has received no advances and made no payments under the agreement and,

(a) at the end of the period the outstanding balance payable by the borrower under the agreement is zero; or

(b) the borrower is in default and has been notified that the lender has cancelled or suspended his or her right to obtain advances under the agreement and has demanded payment of the outstanding balance.

Information about account

(3) The lender shall provide to the borrower a telephone number at which the borrower can make inquiries about the borrower's account during the lender's ordinary business hours without incurring any charges for the telephone call.

Contents of statement of account

(4) A statement of account for a credit agreement for open credit shall disclose the prescribed information.

Change in interest rate

(5) A lender under a credit agreement for open credit who, pursuant to the agreement, changes the interest rate under the agreement shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, in the case of a credit agreement that is not for a credit card; and

(b) at least 30 days before the change, in the case of a credit agreement that is for a credit card where the interest rate is not a floating rate.

Other changes

(6) A lender under a credit agreement for open credit who, pursuant to the agreement, changes any of the matters prescribed under subsection 75 (3), other than the interest rate under the agreement, shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, if the change is not a material change, as prescribed; and

(b) at least 30 days before the change, if the change is a material change, as prescribed.

Assignment of Security for Credit

Assignment of negotiable instrument

78. (1) If a person assigns a negotiable instrument given to secure credit, the person shall deliver to the assignee with the negotiable instrument a copy of the statement required by section 75 and, if the person is a supplier creditor, a copy of the consumer agreement for the goods or services that were obtained with credit.

Reassignment of negotiable instrument

(2) Every assignee of a negotiable instrument who reassigns the instrument shall deliver to the person to whom the instrument is being reassigned the statement and the consumer agreement, if any, received by the assignee in respect of the instrument.

Indemnity

(3) If an assignee of a negotiable instrument to which subsection (2) applies is entitled to recover on the instrument from the maker, the maker is entitled to be indemnified by any assignor of the instrument who has not complied with subsection (1) or (2), as the case may be.

Obligations of assignee of lender

79. (1) The assignee of any rights of a person who extends credit has no greater rights than and is subject to the same obligations, liabilities and duties as the assignor, and the provisions of this Act apply equally to such assignee.

Same

(2) Despite subsection (1), a borrower shall not recover from, or be entitled to set off against, an assignee of the person who extended credit an amount greater than the balance owing on the consumer agreement at the time of the assignment, and, if there have been two or more assignments, the borrower shall not recover from an assignee who no longer holds the benefit of the consumer agreement an amount that exceeds the payments made by the borrower to that assignee.

Order to pay indemnity

80. (1) If an assignor of a negotiable instrument is convicted of a contravention of section 78, the Ontario Court of Justice making the conviction may order that the person convicted is liable to indemnify the maker under subsection 78 (3).

Filing indemnity order in court

(2) If an indemnity order is made under subsection (1) in favour of a person who is or becomes liable under a judgment of a court to an assignee of the negotiable instrument in respect of which the indemnity order was made, the person entitled to the indemnity may file the indemnity order in the court office of the court in which the judgment was issued.

Default judgment

(3) Upon the filing of the indemnity order, the local registrar or clerk of the court shall issue a default judgment in favour of the person entitled to the indemnity and against the person required by the indemnity order to give the indemnity, and the amount of the default judgment shall be the amount of the judgment referred to in subsection (1) and costs together with the costs of issuing the default judgment, or such lesser amount as the person entitled to the indemnity by requisition requests.

Setting aside or variation of default judgment

(4) Upon application, the court in which the default judgment is issued may set aside the default judgment or may determine the amount of the indemnity or make an order of reference for the purpose and may vary the amount of the default judgment.

Allowance for trade-in subject to adjustment

81. (1) If the amount to be paid by a consumer under a consumer agreement is determined after an allowance for a trade-in and is stated in the consumer agreement to be subject to adjustment after the existence or amount of liens against the trade-in is ascertained or confirmed, any statements of the terms of payment and the cost of borrowing, as required under this Act, shall be based upon the amount as determined upon the information provided by the consumer.

Further adjustments

(2) If there is an additional adjustment to the amount to be paid by a consumer under a consumer agreement to which subsection (1) applies after the adjustment under subsection (1), the consumer agreement shall not be adjusted to change,

(a) the percentage rate by which the cost of borrowing is expressed;

(b) the total number of instalments required to pay the total indebtedness; or

(c) the price shown in the consumer agreement.

PART VIII
LEASING

Definitions

82. In this Part,

"lease" means a consumer agreement for the lease of goods, other than a consumer agreement for the lease of goods in connection with a residential tenancy agreement, and "lessor" and "lessee" have a corresponding meaning; ("convention de location", "bailleur", "preneur")

"lease term" means the period during which the lessee is entitled to retain possession of the leased goods; ("durée de la convention")

"residual obligation lease" means a lease under which the lessor may require the lessee at the end of the lease term to pay the lessor an amount based in whole or in part on the difference, if any, between,

(a) the estimated wholesale value of the leased goods at the end of the lease term, and

(b) the realizable value of the leased goods at the end of the lease term. ("convention à obligation résiduelle")

Application of Part

83. This Part applies to,

(a) leases for a fixed term of four months or more;

(b) leases for an indefinite term or that are renewed automatically until one of the parties takes positive steps to terminate them; and

(c) residual obligation leases.

Advertising

84. Any person who makes representations or causes representations to be made about the cost of a lease, whether orally, in writing or in any other form, shall do so in accordance with the prescribed requirements.

Disclosure statement

85. (1) Every lessor shall deliver a disclosure statement for a lease to the lessee before the earlier of,

(a) the time that the lessee enters into the lease; and

(b) the time that the lessee makes any payment in connection with the lease.

Contents of statement

(2) The disclosure statement for a lease shall disclose the prescribed information.

Compensation re: termination of lease

86. (1) The maximum amount of compensation that may be charged to a lessee by a lessor for termination of a lease before the end of the lease term may be limited as prescribed.

Residual obligation lease

(2) The maximum liability of the lessee at the end of the term of a residual obligation lease after returning the leased goods to the lessor shall be the amount calculated in the prescribed manner.

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

Application

87. This Part does not apply to remedies claimed in respect to unfair practices under Part III.

Form of consumer notice

88. (1) If this Act requires a consumer to give notice to a supplier to request a remedy, the consumer may do so by giving notice in accordance with this section.

Same

(2) The notice may be expressed in any way, as long as it indicates the intention of the consumer to seek the remedy being requested and complies with any requirements that may be prescribed.

Delivery of notice

(3) The notice may be delivered by any means.

Notice given when sent

(4) If notice is given other than by personal service, the notice shall be deemed to be given when sent.

Address

(5) The consumer may send or deliver the notice to the address set out in a consumer agreement or, if the consumer did not receive a written copy of a consumer agreement or the address was not set out in the written agreement, the consumer may send or deliver the notice,

(a) to any address of the supplier on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the supplier known by the consumer.

Consumer agreements not binding

88.1 A consumer agreement is not binding on the consumer unless the agreement is made in accordance with this Act and the regulations.

Cancellation

89. (1) If a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel the agreement by giving notice in accordance with section 88.

Effective time

(2) The cancellation takes effect when the consumer gives notice.

Effect of cancellation

90. The cancellation of a consumer agreement in accordance with this Act operates to cancel, as if they never existed,

(a) the consumer agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the consumer agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the consumer agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended arranged or facilitated by the person with whom the consumer reached the consumer agreement, or

(ii) otherwise related to the consumer agreement.

Obligations on cancellation

91. (1) If a consumer cancels a consumer agreement, the supplier shall, in accordance with the prescribed requirements,

(a) refund to the consumer any payment made under the agreement or any related agreement; and

(b) return to the consumer in a condition substantially similar to when they were delivered all goods delivered under a trade-in arrangement or refund to the consumer an amount equal to the trade-in allowance.

Repossession or return of goods

(2) Upon cancelling a consumer agreement, the consumer, in accordance with the prescribed requirements and in the prescribed manner, shall permit the goods that came into the consumer's possession under the agreement or a related agreement to be repossessed, shall return the goods or shall deal with them in such manner as may be prescribed.

Reasonable care

(3) If a consumer cancels a consumer agreement, the consumer shall take reasonable care of the goods delivered to the consumer under the agreement or a related agreement for the prescribed period.

To whom obligation owed

(4) The consumer owes the obligation described in subsection (3) to the person entitled to possession of the goods at the time in question.

No further obligation

(5) Compliance with this section discharges the consumer from all obligations relating to the goods and the consumer is under no other obligation, whether arising by contract or otherwise, to take care of the goods.

Right of action

(6) If a consumer has cancelled a consumer agreement and the supplier has not met the supplier's obligations under subsection (1), the consumer may commence an action.

Title to goods under trade-in arrangement

92. If the consumer recovers an amount equal to the trade-in allowance under subsection 91 (1) and the title of the consumer to the goods delivered under the trade-in arrangement has not passed from the consumer, the title to the goods vests in the person entitled to the goods under the trade-in arrangement.

Illegal payments

93. (1) If a supplier has received a payment in contravention of this Act, the consumer who made the payment may demand a refund of the payment by giving notice in accordance with section 88 within one year after making the payment.

Refund of illegal payment

(2) A supplier who receives a notice demanding a refund of a payment that was received in contravention of this Act, shall refund the payment within the prescribed period of time.

Right of action

(3) The consumer who made a payment that was received in contravention of this Act may commence an action to recover the payment in accordance with section 95.

Consumer's recourse re: credit card charges

94. (1) A consumer who has charged to a credit card account all or any part of a payment described in subsection (2) may request the credit card issuer to cancel or reverse the credit card charge and any associated interest or other charges.

Types of payment

(2) Subsection (1) applies to,

(a) a payment in respect of a consumer agreement that has been cancelled under this Act;

(b) a payment that was received in contravention of this Act; and

(c) a payment that was collected in respect of unsolicited goods or services for which payment is not required under section 13.

Timing of request

(3) A consumer may make a request under subsection (1) if the consumer has cancelled a consumer agreement or demanded a refund in accordance with this Act, and the supplier has not refunded all of the payment within the required period.

Form and delivery of notice

(4) A request under subsection (1) shall be in writing and shall be delivered to the credit card issuer, in the prescribed period, in accordance with section 88.

Obligation of credit card issuer

(5) The credit card issuer shall,

(a) acknowledge the consumer's request within the prescribed period; and

(b) if the request meets the requirements of subsection (4),

(i) cancel or reverse the credit card charge and any associated interest or other charges within the prescribed period, or

(ii) send a written notice to the consumer, after having conducted an investigation, explaining the reasons why the credit card issuer is of the opinion that the consumer is not entitled to cancel the consumer agreement or to demand a refund under this Act.

Right of action

(6) A consumer may commence an action against a credit card issuer to recover a payment and associated interest and other charges to which the consumer is entitled under this section.

Other prescribed payment systems

(7) If a consumer charges all or part of a payment described in subsection (2) to a prescribed payment system, the consumer may request that the charge be cancelled or reversed and this section applies with necessary modifications to the cancellation or reversal of such a charge.

Action in Superior Court of Justice

95. (1) If a consumer has a right to commence an action under this Act, the consumer may commence the action in the Superior Court of Justice.

Judgment

(2) If a consumer is successful in an action, unless in the circumstances it would be inequitable to do so, the court shall order that the consumer recover,

(a) the full payment to which he or she is entitled under this Act; and

(b) all goods delivered under a trade-in arrangement or an amount equal to the trade-in allowance.

Same

(3) In addition to an order under subsection (2), the court may order exemplary or punitive damages or such other relief as the court considers proper.

Waiver of notice

96. If a consumer is required to give notice under this Act in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

Powers of Minister

97. (1) The Minister may,

(a) disseminate information for the purpose of educating and advising consumers;

(b) provide information to consumers about the use of alternate dispute resolution techniques as a means of resolving disputes arising out of consumer transactions; and

(c) enforce this Act and other legislation for the protection of consumers.

Delegation of powers and duties

(1.1) The Minister may delegate in writing any of his or her powers or duties under subsection (1) to the Deputy Minister of Consumer and Business Services or to any persons employed in a specified capacity in the Ministry.

Same

(1.2) The Deputy Minister of Consumer and Business Services may in writing delegate any of the powers or duties delegated to the Deputy Minister by the Minister under subsection (1.1) to any person employed in a specified capacity in the Ministry.

Enforcement agreements

(2) For the purpose of enforcing this Act and other legislation for the protection of consumers, the Minister may,

(a) enter into agreements with law enforcement agencies in Canada and other jurisdictions; and

(b) for the purposes of clause (a), share and exchange information concerning breaches or possible breaches of this Act or other legislation for the protection of consumers.

Duties of Director

98. (1) The Director shall perform such duties and exercise such powers as are given to or conferred upon the Director under this or any other Act.

Same

(2) The Director shall maintain, in accordance with the prescribed requirements, a public record of the following:

1. Undertakings of voluntary compliance entered into under this Act.

2. Compliance orders issued under this Act.

3. Orders made under section 104.

4. Any other prescribed document or information.

Same

(3) The Director shall publish such documents or information as are prescribed.

Transition

(4) Records that the Director maintained available for public inspection as required by section 5 of the Business Practices Act before its repeal are deemed to be records that are to be maintained for purposes of subsection (2).

Fees

99. (1) The Minister may by order require the payment of fees for the inspection of public records maintained under section 98 and may approve the amount of those fees.

Same

(2) Orders made under subsection (1) are not regulations within the meaning of the Regulations Act.

PART XI
GENERAL

Ministry receives complaints and makes inquiries

100. The Ministry may,

(a) receive complaints concerning conduct that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether the conduct constitutes an offence or not; and

(b) make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate, concerning any matter that comes to its attention that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether the matter constitutes an offence or not.

Appointment of investigators

101. (1) The Director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 102 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

102. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 101 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling, unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

103. (1) Although a warrant issued under section 102 would otherwise be required, an investigator may exercise any of the powers described in subsection 102 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

False, misleading or deceptive representation

104. (1) If the Director believes on reasonable grounds that any person is making a false, misleading or deceptive representation in respect of any consumer transaction in an advertisement, circular, pamphlet or material published by any means, the Director may,

(a) order the person to cease making the representation; and

(b) order the person to retract the representation or publish a correction of equal prominence to the original publication.

Real property

(2) Despite clause 2 (2) (f), this section applies to any representations involving real property.

Order effective

(3) The order takes effect immediately upon being made.

Service

(4) The Director shall serve the order, together with written reasons for it, on the person named in it.

Request for a hearing

(5) The order shall inform the person named in it that the person may request a hearing before the Tribunal by
mailing or delivering a written notice of request for a hearing to the Director and the Tribunal within 15 days after service of the order.

Hearing date

(6) If the person gives a notice of request for a hearing within the allowed time, the Tribunal shall hold a hearing.

Stay of order

(7) The Tribunal may stay the order until it confirms or sets aside the order under subsection (9).

Parties

(8) The Director, the person who requested the hearing and the persons whom the Tribunal specifies are parties to the hearing.

Powers of Tribunal

(9) After holding the hearing, the Tribunal may,

(a) confirm the order with the amendments, if any, that the Tribunal considers proper to give effect to the purposes of the Act; or

(b) set aside the order.

Same

(10) In confirming or setting aside the order, the Tribunal may substitute its opinion for that of the Director.

Appeal

(11) Even if the person named in an order made under this section appeals it under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Freeze order

105. (1) If the conditions in subsection (2) are met, the Director may, in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a supplier or former supplier to hold those funds or assets;

(b) order a supplier or former supplier to refrain from withdrawing any asset or trust fund from a person having them on deposit or controlling them; or

(c) order a supplier or former supplier to hold any asset or trust fund of a consumer or other person in trust for the person entitled to it.

Conditions

(2) The Director may make an order under subsection (1) if he or she believes that it is advisable for the protection of consumers and,

(a) a search warrant has been issued under this Act;

(b) an order has been made under section 106 or 107; or

(c) there has been an undertaking of voluntary compliance under section 109.

Person engaged in unfair practice

(3) Subsections (1) and (2) apply with necessary modifications to any person, whether or not the person is or was a supplier, if the person has engaged or is engaging in unfair practices under this Act.

Limitation

(4) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(5) The Director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(6) Subsection (1) does not apply if the person files with the Director, in such manner and amount as the
Director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(7) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund subject to the order.

Notice

(8) If an order is made under this section, the Director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice and the notice has the same effect as the registration of a certificate of pending litigation except that the Director may in writing revoke or modify the notice.

Cancellation or discharge application

(9) A person in respect of whom an order has been made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (8) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(10) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part, if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of consumers or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(11) The applicant, the Director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(12) If the Director has made an order under subsection (1) or registered a notice under subsection (8), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(13) An application by the Director under this section may be made without notice to any other person.

Compliance order

106. (1) The Director may propose to make an order directing a person to comply with the Act if the Director believes on reasonable grounds that the person has engaged or is engaging in any activity that contravenes any provision under this Act, whether the activity constitutes an offence or not.

Notice

(2) If the Director proposes to make an order under subsection (1), the Director shall serve notice of the proposed order, together with written reasons, on the person.

Request for hearing

(3) The notice shall state that the person is entitled to a hearing by the Tribunal if the person mails or delivers, within 15 days after the notice under subsection (2) is served, notice in writing requiring a hearing to the Director and the Tribunal.

No hearing required

(4) If the person does not require a hearing in accordance with subsection (3), the Director may make the order.

Hearing

(5) If the person requires a hearing in accordance with subsection (3), the Tribunal shall hold the hearing and may order the Director to make the proposed order or to refrain from making the proposed order or may make an order of its own in substitution for that of the Director.

Conditions

(6) The Tribunal may attach such conditions to its order as it considers proper.

Parties

(7) The Director and the person who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.

Order for immediate compliance

107. (1) Despite section 106, the Director may make an order requiring immediate compliance with this Act if, in the Director's opinion, it is the public interest to do so and subject to subsection (2), such an order takes effect immediately.

Notice of order

(2) If the Director makes an order for immediate compliance, he or she shall serve on the person named in the order a notice that includes the order and the written reasons for making it and the information required in a notice referred to in subsection 106 (3).

Hearing

(3) When a person named in the order requires a hearing in accordance with the notice under subsection (2), the Tribunal shall hold the hearing and may confirm or set aside the order or exercise such other powers as may be exercised in a proceeding under section 106.

Expiration of order

(4) If a hearing by the Tribunal is required,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(5) Despite subsection (4), if it is satisfied that the conduct of the person named in the order has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Parties

(6) The Director and the person who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section.

Appeal

108. Even if, under section 11 of the Licence Appeal Tribunal Act, 1999, a party to a proceeding before the Tribunal appeals an order of the Tribunal made under section 106 or 107, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Undertaking of voluntary compliance

109. (1) At any time before all rights of appeal are exhausted or the time for appeals has expired without an appeal being commenced, any person against whom the Director has made or is considering making an order to comply under section 106 or 107 may enter into a written undertaking of voluntary compliance,

(a) to not engage in the specified act after the date of the undertaking;

(b) to provide compensation to any consumer who has suffered a loss;

(c) to publicize the undertaking or the actions being undertaken as a result of the undertaking;

(d) to pay any cost incurred in investigating the person's activities, any legal costs incurred in relation to the person's activities and any cost associated with the undertakings; and

(e) to take any such action as the Director considers appropriate in the circumstances.

Undertaking deemed order

(2) When an undertaking of voluntary compliance is accepted by the Director, the undertaking has and shall be given for all purposes of this Act the force and effect of an order made by the Director.

Security for any undertaking

(3) The Director may require any person who is giving an undertaking of voluntary compliance to provide, in such manner and amount as the Director determines, security in the form of,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Release of security

(4) The bond and any collateral security required under subsection (3) shall not be released until the Director is satisfied that the person has fulfilled the undertaking.

Restraining orders

110. (1) If it appears to the Director that a person is not complying with this Act or the regulations or an order made under this Act, the Director may apply to the Superior Court of Justice for an order directing that person to comply and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the Director, whether or not the Director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offences

111. (1) A person is guilty of an offence if the person,

(a) fails to comply with any order, direction or other requirement under this Act; or

(b) contravenes or fails to comply with,

(i) in respect of Part II, Consumer Rights and Warranties, subsection 10 (1), section 12 and subsections 13 (2) and (7),

(ii) in respect of Part III, Unfair Practices, subsection 17 (1),

(iii) in respect of Part IV, Rights and Obligations Respecting Specific Consumer Agreements, subsection 30 (2), clauses 33 (a) and (b), subsections 34 (1) and (2) and 36 (1),

(iv) in respect of Part V, Sectors Where Advance Fee Prohibited, section 45, subsection 46 (1) and section 49,

(v) in respect of Part VI, Repairs to Motor Vehicles and Other Goods, subsections 52 (1), 53 (1) and (3), 54 (1) and (2), section 56, subsections 57 (1) and (2) and sections 58 and 60,

(vi) in respect of Part VII, Credit Agreements, subsection 63 (3), section 67, subsections 68 (2) and 72 (2), section 73 and subsections 74 (1) and (2), 75 (1), 76 (1), (2), (3) and (5), 77 (1), (3), (5) and (6) and 78 (1) and (2),

(vii) in respect of Part VIII, Leasing, section 84 and subsection 85 (1), and

(viii) in respect of Part IX, Procedures for Consumer Remedies, subsections 91 (1), 93 (2) and 94 (5).

Same

(2) A person who contravenes or fails to comply with a provision of a regulation made under this Act is guilty of an offence.

Corporation

(3) An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1) or (2).

Attempt

(4) Any person who attempts to commit any offence referred to in subsection (1) or (2) is guilty of an offence.

Penalties

(5) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(6) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Director.

Orders for compensation, restitution

112. If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

Default in payment of fines

113. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the Director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

Where payment made

(2) Within 10 days after the Director has notice that the fine has been paid in full, the Director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Business Practices Act, the Consumer Protection Act, the Loan Brokers Act, 1994, the Motor Vehicle Repair Act or the Prepaid Services Act despite the repeal of the Act, the Director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

114. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the Director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the Director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the Director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the Director under subsection (1) relates to real property, the Director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The Director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the Director shall ensure the funds he or she receives as result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the Director has knowledge of the payment in full of the fine, the Director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

Matters confidential

115. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation that protects consumers or to any other entity to which the administration of legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose of the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service by the Director of notice or order

116. (1) Any notice or order required to be given or served by the Director under this Act is sufficiently given or served if,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the Director can prove receipt of the notice or order.

Deemed service

(2) Where service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsection (1), the Tribunal may order any other method of service.

Certificate as evidence

117. (1) For all purposes in any proceeding, a statement purporting to be certified by the Director is, without proof of the office or signature of the Director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the filing or non-filing of any document or material required or permitted to be filed; or

(b) the time when the facts upon which the proceedings are based first came to the knowledge of the Director.

Same

(2) A statement purporting to be certified by an official acting under legislation that protects consumers in another jurisdiction, as prescribed, shall have the same force and effect as a certificate of the Director issued under subsection (1).

Proof of document

(3) Any document made under this Act that purports to be signed by the Director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the Director without proof of the office or signature of the Director.

Lieutenant Governor in Council regulations:
general

118. (1) The Lieutenant Governor in Council may make regulations,

(a) prescribing anything in this Act that is referred to as being prescribed;

(b) prescribing the form and content of consumer agreements, notices, invoices or any documents required under this Act;

(c) exempting any supplier, consumer transaction, goods or services, any combination of any of them or any class of any of them from any provision of this Act or the regulations, and prescribing conditions or restrictions that apply in respect of an exemption;

(d) governing trade-ins and trade-in arrangements made under consumer agreements or arising from consumer agreements;

(e) respecting what constitutes a material change in the periodic supply or ongoing supply of goods or services;

(f) requiring suppliers to make returns and furnish information to the Director as is prescribed;

(g) requiring information that is required or permitted to be furnished to the Director or that is contained in any form or return to be verified by affidavit;

(h) governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act;

(i) providing for any transitional matter necessary for the effective implementation of this Act or the regulations.

Lieutenant Governor in Council regulations: Part I

(2) The Lieutenant Governor in Council may make regulations,

(a) prescribing a tribunal for the purposes of this Act;

(b) prescribing professional services that are exempted from the application of this Act;

(c) excluding the application of provisions of this Act to consumer agreements that meet the criteria of more than one type of agreement for purposes of section 4.

Lieutenant Governor in Council regulations: Part II

(3) The Lieutenant Governor in Council may make regulations prescribing the period in which a supplier is to refund a payment to a consumer who has demanded a refund.

Lieutenant Governor in Council regulations: Part III

(4) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for the notice to rescind an agreement or the notice to seek recovery under Part III;

(b) prescribing the period in which to respond to a consumer who has given notice to rescind an agreement or notice to seek recovery.

Lieutenant Governor in Council regulations: Part IV

(5) The Lieutenant Governor in Council may make regulations,

(a) prescribing the total potential payment obligations, excluding the cost of borrowing, that must be exceeded for Part IV to apply to consumer agreements included in that Part;

(b) prescribing the circumstances under which the effect of the cancellation of a consumer agreement to which Part IV applies and the obligations arising as a result of the cancellation of the agreement will be limited and prescribing the nature of the limitations;

(c) for consumer agreements to which Part IV applies, governing disclosure, contents of consumer agreements and requirements for making, renewing, amending or extending consumer agreements;

(d) prescribing matters as being personal development services;

(e) governing remote agreements;

(f) governing internet agreements.

Lieutenant Governor in Council regulations: Part V

(6) The Lieutenant Governor in Council may make regulations,

(a) prescribing goods and services for the purposes of Part V;

(b) prescribing conditions that must be met to permit payment for the supply of prescribed goods and services;

(c) prescribing requirements for making an agreement to which Part V applies;

(d) prescribing prohibited representations for the purposes of Part V.

Lieutenant Governor in Council regulations: Part VI

(7) The Lieutenant Governor in Council may make regulations,

(a) prescribing goods for the purposes of Part VI;

(b) prescribing requirements with which estimates must comply;

(c) prescribing requirements for authorizations that are not given in writing;

(d) prescribing signs that a repairer must post, prescribing requirements for posting the signs and prescribing the contents of the signs and the manner in which the contents are to be presented;

(e) prescribing the information to be contained in an invoice and the manner in which the information is to be presented;

(f) prescribing the minimum warranty for new and reconditioned parts and for labour for the purposes of subsection 59 (1).

Lieutenant Governor in Council regulations: Part VII

(8) The Lieutenant Governor in Council may make regulations,

(a) prescribing the manner in which to determine the value received by a borrower under a credit agreement;

(b) prescribing the manner in which to determine the annual percentage rate;

(c) prescribing payments and repayments and charges that are not included in the cost of borrowing;

(d) excluding types of consumer agreements from credit agreements;

(e) prescribing requirements that must be met by an index for the index to qualify as a public index;

(f) exempting obligations of a lender from application to a loan broker if the loan broker assists or attempts to assist in the arrangement of credit and the creditor is not in the business of supplying credit;

(g) prescribing requirements for correcting errors in statements of account issued under credit agreements for open credit;

(h) prescribing the manner for determining charges that are to be refunded or credited to a borrower;

(i) prescribing requirements for representations made in respect of credit agreements;

(j) prescribing information that is to be included in a loan broker's statement to a borrower;

(k) governing disclosure statements under Part VII;

(l) prescribing the information to be included in a statement of account for a credit agreement for open credit;

(m) prescribing whether or not a change is a material change;

(n) prescribing the maximum liability of a borrower under a credit agreement for a credit card in cases where the borrower has not authorized the use of the card.

Lieutenant Governor in Council regulations: Part VIII

(9) The Lieutenant Governor in Council may make regulations,

(a) in respect of representations made about the cost of a lease;

(b) governing information to be contained in a disclosure statement for a lease, including disclosure of the annual percentage rate in respect of the lease and prescribing the manner of determining the annual percentage rate;

(c) prescribing the manner of determining the maximum liability of a lessee at the end of a term of a residual obligation lease;

(d) limiting the amount of compensation that a lessor may charge the lessee for termination of the lease before the end of the lease term.

Lieutenant Governor in Council regulations: Part IX

(10) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for notices to cancel consumer agreements;

(b) governing obligations of suppliers and consumers arising as the result of the cancellation of a consumer agreement;

(c) prescribing the period of time within which suppliers must refund a payment that was collected in contravention of this Act;

(d) in respect of cancelling or reversing credit card charges;

(e) prescribing other payment systems for the purposes of section 94.

Lieutenant Governor in Council regulations: Part X

(11) The Lieutenant Governor in Council may make regulations,

(a) prescribing requirements for the public record that must be maintained by the Director and prescribing documents and information that must be kept in such a record;

(b) prescribing information that shall be published by the Director.

Lieutenant Governor in Council regulations: Part XI

(12) The Lieutenant Governor in Council may make regulations,

(a) prescribing Acts under which the Ministry may receive complaints and make inquiries;

(b) prescribing other jurisdictions from which statements may be certified;

(c) prescribing forms of security;

(d) prescribing entities or organizations to which confidential matters may be disclosed.

Retroactive

(13) A regulation under this section may, if it so provides, be effective to a period before it is filed so long as that period commences no earlier than the day this section is proclaimed in force.

General or particular

(14) A regulation under this section may be general or particular in its application.

PART XII
COMMENCEMENT AND SHORT TITLE

Commencement

119. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

120. The short title of the Act set out in this Schedule is the Consumer Protection Act, 2002.

SCHEDULE B
MOTOR VEHICLE
DEALERS ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Application

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

Prohibition

Exemption

PART IV
REGISTRATION

6.

7.

8.

9.

10.

11.

12.

13.

Registration

Registration of motor vehicle dealers

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Temporary suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

14.

15.

15.1

16.

18.

19.

20.

21.

22.

Complaints

Inspection by registrar

Inspection of applicant

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Appointment of receiver and manager

Freeze order

PART VI
CONDUCT AND OFFENCES

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

Duty of motor vehicle dealers

Notice of change to registrar

Trust account

Falsifying information

Furnishing false information

False advertising

Order of registrar re: false advertising

Disclosure by motor vehicle dealers

Restraining orders

Offence

33.

34.

35.

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

36.

37.

38.

39.

40.

41.

Matters confidential

Service

Fees

Certificate as evidence

Names of and information concerning registrants

Transition

PART VIII
MOTOR VEHICLE DEALERS
COMPENSATION
FUND

42.

Compensation fund

PART IX
REGULATIONS

43.

44.

Minister's regulations

Lieutenant Governor in Council regulations

PART X
COMMENCEMENT AND SHORT TITLE

45.

46.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Application

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"employ" means to employ, appoint, authorize or otherwise arrange to have another person act on one's behalf, including as an independent contractor; ("employer")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Fund" means the Motor Vehicle Dealers Compensation Fund continued under section 42; ("Fonds")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act is assigned under the Executive Council Act; ("ministre")

"motor vehicle" means an automobile, truck or other vehicle propelled or driven otherwise than by muscular power, including a motorcycle, but not including a motorized snow vehicle or a farm tractor or other self-propelled machinery primarily intended for farming or construction purposes; ("véhicule automobile")

"motor vehicle dealer" means a person who trades in motor vehicles, whether for the person's own account or the account of any other person, or who holds himself, herself or itself out as trading in motor vehicles; ("commerçant de véhicules automobiles")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and the assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"registrant" means a motor vehicle dealer or salesperson that is registered under this Act; ("personne inscrite")

"salesperson" means an individual who is employed by a motor vehicle dealer to trade in motor vehicles on behalf of the motor vehicle dealer; ("vendeur")

"trade" includes buying, selling, leasing, advertising or exchanging an interest in a motor vehicle or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle, and "trade" when used as a noun has a corresponding meaning; ("faire le commerce", "opération", "commerce")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed. ("Tribunal")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed and a maximum of two deputy registrars may be appointed,

(a) by the board of the designated administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar has been appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition

4. (1) No person shall,

(a) act as a motor vehicle dealer unless the person is registered as a motor vehicle dealer under this Act; or

(b) act as a salesperson unless he or she is registered as a salesperson.

Name and place of business

(2) A motor vehicle dealer shall not,

(a) carry on business in a name other than the name in which the motor vehicle dealer is registered; or

(b) invite the public to deal in a place other than the place that is authorized in the registration of the motor vehicle dealer.

Unregistered salesperson

(3) A motor vehicle dealer shall not retain the services of a salesperson unless the salesperson is registered in that capacity.

Supply to unregistered person

(4) A motor vehicle dealer shall not supply motor vehicles to another motor vehicle dealer for the purpose of trading in motor vehicles unless the other motor vehicle dealer is registered in that capacity.

Salespersons

(5) A salesperson shall not trade a motor vehicle on behalf of a motor vehicle dealer unless the salesperson is registered to that dealer.

Exemption

5. An individual who trades in a motor vehicle on his or her own account or on the account of a member of the individual's family is exempt from the registration requirements under section 4, if the motor vehicle is used primarily for the personal use of the individual or a member of his or her family.

PART IV
REGISTRATION

Registration

6. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 9, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Interested person

(4) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of motor vehicle dealers

7. (1) When it registers and on each renewal of its registration, a motor vehicle dealer that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Refusal to register or renew, suspension, etc.

8. (1) Subject to section 9, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 6 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 9, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

9. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration; or

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 37.

Where no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Temporary suspension

10. (1) If the registrar proposes to suspend or revoke a registration under section 9 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 9,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

11. (1) A request for a hearing under section 9 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

12. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

13. (1) In addition to the disclosure required under section 7, every motor vehicle dealer that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the motor vehicle dealer; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

14. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Require the motor vehicle dealer or salesperson to take further educational courses.

4. Refer the matter, in whole or in part, to the discipline committee.

5. Take an action under section 8, subject to section 9.

6. Take further action as he or she considers appropriate in accordance with this Act.

Inspection by registrar

15. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 14; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents, records, motor vehicles and motor vehicle parts of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents, records, motor vehicles or motor vehicle parts that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Inspection of applicant

15.1 (1) The registrar or a person designated in writing by the registrar may at any reasonable time conduct an inspection of the business premises of an applicant for registration, other than any part of the premises used as a dwelling, for the purpose of ensuring the applicant is entitled to registration under this Act.

Same

(2) Subsections 15 (2) to (7) apply with necessary modifications to an inspection under this section.

Discipline proceedings

16. (1) The board of the administrative authority or, if there is no designated administrative authority, the Minister may establish a discipline committee to hear and determine, in accordance with the prescribed procedures, issues concerning whether registrants have failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) If a discipline committee is established, an appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following, as appropriate:

1. Require the registrant to take further educational courses.

2. In accordance with the terms that may be specified by the committee, require the motor vehicle dealer to fund educational courses for salespersons employed by the dealer or to arrange and fund such educational courses.

3. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

4. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

5. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(6) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(7) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Taking of educational course

(8) The registrant shall take the educational course required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Arranging and funding educational
courses

(9) The motor vehicle dealer shall arrange and fund the educational courses for salespersons employed by the dealer as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(10) The motor vehicle dealer shall fund the educational course for salespersons employed by the dealer as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Public access

(11) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

18. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 19 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

19. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 18 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

20. (1) Although a warrant issued under section 19 would otherwise be required, an investigator may exercise any of the powers described in subsection 19 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Appointment of receiver and manager

21. (1) The director may apply to the Superior Court of Justice for the appointment of a receiver and manager to take possession and control of the business of a registrant if,

(a) an investigation of the registrant has been undertaken under this Act;

(b) the director has made or is about to make an order under section 22;

(c) the director has reasonable grounds to believe that a registrant has failed or is about to fail to provide a contracted and paid for motor vehicle to a customer;

(d) the director is advised that the registrar has proposed to suspend or revoke a registration under section 9 or to temporarily suspend a registration under section 10; or

(e) the director is advised that an investigation under section 5.1 of the Ministry of Consumer and Business Services Act has been ordered.

Order to appoint

(2) The court may make an order for the appointment of a receiver and manager, if it is satisfied that it is in the public interest to have a receiver and manager take control of the business of a registrant.

Notice

(3) The court may make an order under subsection (2) without notice, or if it considers that notice should be given, upon such notice as the court stipulates.

Appointment not longer than 60 days

(4) The order of the court shall provide for the term of the receiver and manager but the term shall not be longer than 60 days.

60-day extensions

(5) Despite subsection (4), the director may, without notice, apply to the court to extend the receiver and manager's term for further terms of not more than 60 days each.

Duties of receiver and manager

(6) The receiver and manager shall,

(a) take possession and control of the assets of the registrant's business;

(b) conduct the business of the registrant; and

(c) take such steps that are, in the opinion of the receiver and manager, necessary for the rehabilitation of the business.

Powers of receiver and manager

(7) The receiver and manager has all the powers of the board of directors of the corporation, if the registrant is a corporation, or of a sole proprietor or all partners if the registrant is not a corporation.

May exclude directors, etc.

(8) Without limiting the generality of subsection (7), the receiver and manager may exclude the directors, officers, employees and agents of the business, interested persons in respect of the business and any other persons connected with the business from the premises and property of the business.

Interested persons

(9) Subsection 6 (4) applies to this section except that the opinion as to whether a person is deemed to be interested in respect of another person is that of the receiver and manager.

Freeze order

22. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund that is subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order is made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Duty of motor vehicle dealers

23. A motor vehicle dealer shall ensure that every salesperson that the motor vehicle dealer employs is carrying out his or her duties in compliance with this Act and the regulations.

Notice of changes to registrar

24. (1) Every motor vehicle dealer shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service;

(b) in the case of a corporation or partnership, any change in the officers or directors; and

(c) the date of commencement or termination of the employment of every salesperson and, in the case of termination of employment of a salesperson, the reason for the termination.

Same

(2) Every salesperson shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; and

(b) the commencement or termination of his or her employment by a motor vehicle dealer and the date of the commencement or termination.

Timing

(3) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(4) Every motor vehicle dealer shall, when required by the registrar with the approval of the director, file a financial statement, certified by a person licensed under the Public Accountancy Act, showing the matters specified by the registrar and signed by the motor vehicle dealer in the case of a sole proprietorship or by an officer of the motor vehicle dealer where the motor vehicle dealer is a partnership or corporation.

Confidential

(5) The information contained in a financial statement filed under subsection (4) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Trust account

25. Every motor vehicle dealer shall maintain, in Ontario, in accordance with the prescribed conditions, an account designated as a trust account in a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a loan or trust corporation, a credit union, as defined in the Credit Unions and Caisses Populaires Act, 1994 or the Province of Ontario Savings Office in which shall be deposited all money that is required to be held in trust, as prescribed, and shall keep at all times the money separate and apart from money belonging to the motor vehicle dealership and shall disburse it in accordance with the conditions as may be prescribed.

Falsifying information

26. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to a trade in motor vehicles.

Furnishing false information

27. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to a trade in a motor vehicle.

False advertising

28. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to trading in motor vehicles.

Order of registrar re: false advertising

29. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 9 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Disclosure by motor vehicle dealers

30. (1) Motor vehicle dealers shall disclose in writing to customers and to motor vehicle dealers such information as may be prescribed and shall make the disclosure at such time as may be prescribed.

Remedies

(2) If a motor vehicle dealer fails to make a disclosure as required under subsection (1) or fails to do so in a timely way, in addition to any other remedies that may be available, the person to whom disclosure should have been made is entitled to such other remedies as may be prescribed.

Restraining orders

31. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

32. (1) A person is guilty of an offence if the person,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 16, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under this Act other than a code of ethics established under section 43.

Corporations

(2) An officer or director of a motor vehicle dealer is guilty of an offence who fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Minimum penalty

(4) The minimum fine upon conviction for an offence under subsection 4 (1) is $2,500.

Limitation

(5) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

33. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer or the Fund, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer or the Fund, as the case may be.

Default in payment of fines

34. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Motor Vehicle Dealers Act, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

35. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

36. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

37. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

38. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

39. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names of and information concerning
registrants

40. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

41. Despite the repeal of the Motor Vehicle Dealers Act, any person who was registered as a motor vehicle dealer or salesperson under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a motor vehicle dealer or salesperson, as the case may be, under this Act until the person is required to renew his, her or its registration under this Act.

PART VIII
MOTOR VEHICLE DEALERS
COMPENSATION
FUND

Compensation Fund

42. (1) The Motor Vehicle Dealers Compensation Fund established under the Motor Vehicle Dealers Act is continued.

Board of trustees

(2) A board of trustees for the Fund shall be appointed in accordance with the prescribed procedures and the board shall manage the Fund in the prescribed manner.

Fund supported by registrants and held in trust

(3) The Fund shall be supported by such levies and payments imposed on registrants as may be prescribed and the Fund shall be held in trust in accordance with the prescribed requirements for the benefit of persons entitled to the payment of claims.

Claims against Fund

(4) A customer of a registrant may make a claim for compensation from the Fund in the prescribed manner.

Entitlement to compensation

(5) If a customer makes a claim for compensation under subsection (4), the customer's entitlement to compensation shall be determined using the prescribed criteria in accordance with the prescribed procedures.

Payments by motor vehicle dealers

(6) In the circumstances as prescribed, a motor vehicle dealer or former motor vehicle dealer shall be required to reimburse the Fund for money paid out to customers as a result of claims against the motor vehicle dealer or former motor vehicle dealer.

Publishing decisions

(7) Decisions in respect of claims to the Fund may be made available to the public in such manner as may be prescribed, but in no case shall the publication of such decisions disclose the identity of an individual making a claim without the individual's prior approval.

Payment of money owed to Fund

(8) The registrar may make such arrangements with registrants or former registrants as may be prescribed for the payment of money owed to the Fund and may impose such penalties and interest, as may be prescribed for the failure to pay money owed to the Fund or the failure to do so in a timely fashion.

Refusal to renew registration

(9) If a registrant is in default of such levies or payments to the Fund as have been prescribed or has failed to reimburse the Fund in the prescribed circumstances and has failed to make arrangements for payment under subsection (8) or has failed to comply with those arrangements, subject to section 9, the registrar may refuse to renew the registrant's registration.

PART IX
REGULATIONS

Minister's regulations

43. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 16 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matters that may be delegated by the Lieutenant Governor in Council under section 44.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the designated administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 44, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

44. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons or class of trades from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

4. prescribing a maximum fine to be imposed for contravention of the code of ethics;

5. prescribing classes and subclasses of registrant and respecting conditions that are applicable to the classes and subclasses;

6. requiring registrants to provide proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

7. respecting educational requirements for registration and renewal of registration and designating entities authorized to develop educational requirements and programs;

8. governing the documents, records and trust accounts that must be kept by motor vehicle dealers, including the manner and location at which they are kept and authorizing the registrar to specify the location at which they must be kept;

9. prescribing procedures and other matters related to complaints under section 14;

10. respecting inspections and investigations under this Act;

11. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

12. governing the disclosure of names of registrants and of other information concerning registrants;

13. prescribing forms of security;

14. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

15. varying the manner in which a notice under subsection 22 (7) or a lien under subsection 35 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

16. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

17. governing the keeping of books and records by registrants, including prescribing the types and classes of information to be retained by registrants and time periods for retaining types and classes of information;

18. prescribing conditions for keeping a trust account;

19. prescribing the information that motor vehicle dealers must disclose to a customer concerning a trade in a motor vehicle and the time or times when disclosures must be made and remedies available to the person to whom such disclosure should have been made;

20. prescribing the period during which a registrant must submit statements in respect of advertising for pre-approval;

21. prohibiting specified alterations of a motor vehicle or any part of a motor vehicle and requiring disclosure of certain alterations or types of alterations;

22. governing contracts for the trade of a motor vehicle;

23. governing remedies for failure to meet prescribed conditions of contracts for the trade of a motor vehicle and governing remedies available to a customer if a motor vehicle dealer fails to disclose prescribed information or fails to disclose it in a timely fashion;

24. prescribing entities or organizations to which confidential matters may be disclosed;

25. respecting the management of the Fund;

26. respecting the appointment, composition, quorum, powers and duties of the board of trustees of the Fund;

27. respecting the manner in which a claim for compensation from the Fund can be made;

28. prescribing the procedures and criteria to be used in determining whether a customer is eligible for compensation from the Fund;

29. governing payments out of the Fund;

30. prescribing the circumstances under which a motor vehicle dealer or former motor vehicle dealer is required to reimburse the Fund and prescribing requirements respecting the time and manner for the reimbursement and the imposition of penalties and interest;

31. respecting the cancellation of a motor vehicle dealer as a participant in the Fund;

32. respecting the obligations of motor vehicle dealers on ceasing to be participants in the Fund;

33. governing procedures and obligations if a participant is in default in making a payment to the Fund;

34. governing the circumstances and manner in which decisions in respect of claims to the Fund are made available to the public;

35. respecting arrangements made between the registrar and registrants or former registrants regarding the payment of money owed to the Fund including the consequences for failure to abide by the arrangements;

36. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

37. regulating advertising and representations or promises intended to induce the purchase, sale or exchange of motor vehicles;

38. requiring registrants or classes of registrants to maintain business premises that comply with the prescribed requirements;

39. respecting the terms and sale of motor vehicle warranties, guarantees, service plans and similar protection and the rights and obligations of customers and motor vehicle dealers in respect of them;

40. delegating any matter that may be the subject of a regulation under this section to the Minister;

41. prescribing rules relating to addresses for service under the Act;

42. prescribing any matter or thing that this Act refers to as being prescribed;

42.1 providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

44. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act.

Residual authority to act

(2) Despite any delegation to the Minister under paragraph 40 of subsection (1) and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART X
COMMENCEMENT AND SHORT TITLE

Commencement

45. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

46. The short title of the Act set out in this Schedule is the Motor Vehicle Dealers Act, 2002.

SCHEDULE C
REAL ESTATE
AND BUSINESS BROKERS ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Application

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

6.

7.

8.

9.

Prohibition against trade in real estate unless
registered

Exemptions

Notification of registration required

Prohibition against multiple offices unless registered

Specialist certification

Registration a requirement to bring action

PART IV
REGISTRATION

10.

11.

12.

13.

14.

15.

16.

17.

18.

Registration

Registration of brokerage

Broker of record

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Immediate suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

19.

20.

21.

23.

24.

25.

26.

Complaints

Inspection by registrar

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Freeze order

PART VI
CONDUCT AND OFFENCES

27.

28.

29.

30.

31.

32.

33.

34.

35.

Duty of brokerage

Trust account

Notice of changes to registrar

Carrying on business as sole proprietor

Restrictions re: employees

Restrictions re: brokers and salespersons

Statement respecting interest

Prohibition re: breaking contract

Falsifying information

36.

37.

38.

39.

40.

41.

42.

43.

44.

Furnishing false information

Commission and remuneration, scale

False advertising

Order of registrar re: false advertising

Restraining orders

Offence

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

45.

46.

47.

48.

49.

50.

Matters confidential

Service

Fees

Certificate as evidence

Names of and information concerning registrants

Transition

PART VIII
REGULATIONS

51.

52.

Minister's regulations

Lieutenant Governor in Council regulations

PART IX
COMMENCEMENT AND SHORT TITLE

53.

54.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Application

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"broker" means an individual who has the prescribed qualifications to be registered as a broker under this Act and who is employed by a brokerage to trade in real estate; ("courtier")

"brokerage" means a corporation, partnership, sole proprietor, association or other organization or entity that, on behalf of others and for compensation or reward or the expectation of such, trades in real estate or holds himself, herself or itself out as such; ("maison de courtage")

"business" means an undertaking carried on for gain or profit and includes any interest in such undertaking; ("entreprise")

"employ" means to employ, appoint, authorize or otherwise arrange to have another person act on one's behalf, including as an independent contractor; ("employer")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom administration for this Act is assigned under the Executive Council Act; ("ministre")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office and the manager of the real estate department of a trust corporation; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"real estate" includes leasehold interests and businesses, whether with or without premises, and fixtures, stock-in-trade and goods connected with the operation of a business; ("bien immobilier")

"registrant" means a brokerage that is registered under this Act or a broker or salesperson who is registered under this Act; ("personne inscrite")

"salesperson" means an individual who has the prescribed qualifications to be registered as a salesperson under this Act and who is employed by a brokerage to trade in real estate; ("agent immobilier")

"trade" includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for purchase and sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition, acquisition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb "trade" has a corresponding meaning; ("opération", "mener des opérations")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; ("Tribunal")

"year" means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. ("année")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed for the purposes of this Act and a maximum of two deputy registrars may be appointed,

(a) by the board of the administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or a deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director, and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar is appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition against trade in real estate unless registered

4. (1) No person shall,

(a) trade in real estate as a brokerage unless the person is registered as a brokerage;

(b) trade in real estate as a broker unless he or she is registered as a broker of a brokerage;

(c) trade in real estate as a salesperson unless he or she is registered as a salesperson of a brokerage; or

(d) trade in real estate unless registered under this Act.

Unregistered persons

(2) A person who is not registered as a brokerage, broker or salesperson shall not,

(a) directly or indirectly hold himself, herself or itself out as being a brokerage, broker or salesperson, respectively; or

(b) perform any of the functions of a brokerage, broker or salesperson as provided in this Act.

Change in partnership

(3) A change in the membership of a partnership shall be deemed to create a new partnership for the purpose of registration.

Change in corporation

(4) A change in the officers or directors of a corporation registered as a brokerage may be made only with the consent of the registrar.

Exemptions

5. (1) Despite section 4, registration shall not be required in respect of any trade in real estate by,

(a) an assignee, custodian, liquidator, receiver, trustee or other person acting under the Bankruptcy and Insolvency Act (Canada), the Corporations Act, the Business Corporations Act, the Courts of Justice Act, the Winding-up and Restructuring Act (Canada), or a person acting under the order of any court, or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust;

(b) an auctioneer if the trade is made in the course of and as part of the auctioneer's duties as auctioneer;

(c) a person who is registered under the Securities Act if the trade is made in the course of and as part of the person's business in connection with a trade in securities;

(d) a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union as defined in the Credit Unions and Caisses Populaires Act, 1994 or a loan, trust or insurance corporation trading in real estate owned or administered by the corporation;

(e) a person in respect of any mine or mining property within the meaning of the Mining Act or in respect of the real estate included in a Crown grant or lease, a mining claim or mineral lands under the Mining Act or any predecessor of that Act;

(f) a full-time salaried employee of a party to a trade if the employee is acting for or on behalf of his or her employer in respect of land situate in Ontario;

(g) a solicitor of the Superior Court of Justice who is providing legal services if the trade in real estate is itself a legal service or is incidental to and directly arising out of the legal services;

(h) a person, on the person's own account, in respect of the person's interest in real estate unless,

(i) the trade results from an offer of the person to act or a request that the person act in connection with the trade or any other trade, for or on behalf of the other party or one of the other parties to the trade, or

(ii) the interest of the person in the real estate was acquired after the offer or request referred to in subclause (i) whether or not the trade is the result of the offer or request;

(i) a person in respect of the provision for another, for remuneration other than by commission, of all consultations, undertakings and services necessary to arrange for the routing of a right of way including the acquisition of land or interests in land for the purpose, and the person's employees engaged in the project;

(j) a person who trades in real estate solely for the purpose of arranging leases to which the Tenant Protection Act, 1997 applies; or

(k) such persons or classes of persons that are prescribed as exempt from registration in respect of any class of trades in real estate.

Independent contractor not an employee

(2) An independent contractor is not an employee for the purpose of clauses (1) (f) and (i).

Notification of registration required

6. Subject to subsection 14 (8), no brokerage, broker or salesperson shall trade in real estate until notified in writing by the registrar that the brokerage, broker or salesperson, as the case may be, is registered.

Prohibition against multiple offices
unless registered

7. (1) No brokerage shall conduct a business of trading in real estate from more than one place to which the public is invited unless the brokerage is registered in respect of each place, one of which shall be designated as the main office and the remainder as branch offices.

Branch offices

(2) Every branch office of a brokerage shall be under the supervision of a broker and each such office having more than one salesperson shall be under the direct management of a broker or of a salesperson who has been registered for at least two years and who is under the supervision of a broker.

Specialist certification

8. (1) No registrant shall hold himself, herself or itself out as a specialist in trading in any type of real estate unless,

(a) the trading in that type of real estate is prescribed as an area of specialization; and

(b) the registrant is certified, as prescribed, as a specialist in trading in that area of specialization.

Brokerage categories

(2) A regulation under this section may differentiate among brokerages and between brokerages and brokers and salespersons and may provide that brokerages that are corporations may not be certified as specialists.

Registration a requirement to bring action

9. No action shall be brought for commission or other remuneration for services in connection with a trade in real estate unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.

PART IV
REGISTRATION

Registration

10. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(ii) having regard to the financial position of its officers or directors or an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(iv) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 13, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Interested person

(4) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of brokerage

11. (1) When it registers and on each renewal of its registration, a brokerage that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Broker of record

12. (1) Every brokerage shall,

(a) designate a broker who is employed by the brokerage as the broker of record and notify the registrar of his or her identity; and

(b) notify the registrar if the broker of record changes, within five days of the change.

Duties

(2) The broker of record shall ensure that the brokerage complies with this Act and the regulations.

Sole proprietor

(3) If a brokerage is a sole proprietorship, it shall designate the sole proprietor as the broker of record even though other brokers may be employed by the brokerage.

Refusal to register or renew, suspension, etc.

13. (1) Subject to section 14, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 10 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 14, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

14. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration; or

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 46.

If no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Immediate suspension

15. (1) If the registrar proposes to suspend or revoke a registration under section 14 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 14,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

16. (1) A request for a hearing under section 14 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

17. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

18. (1) In addition to the disclosure required under section 11, every brokerage that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the brokerage; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

19. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Require the broker or salesperson to take further educational courses.

4. Refer the matter, in whole or in part, to the discipline committee.

5. Take an action under section 13, subject to section 14.

6. Take further action as is appropriate in accordance with the Act.

Inspection by registrar

20. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 19; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents or records that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Discipline proceedings

21. (1) A discipline committee shall be established to hear and determine, in accordance with the prescribed procedures, if a registrant has failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) An appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following as appropriate:

1. Require the broker or salesperson to take further educational courses.

2. In accordance with the terms that may be specified by the committee, require the brokerage to fund educational courses for brokers and salespersons employed by the brokerage or to arrange and fund such educational courses.

3. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

4. Suspend or postpone the taking of further educational courses, the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

5. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(5.1) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(6) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Taking of educational course

(7) The registrant shall take the educational course required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Arranging and funding educational
courses

(7.1) The brokerage shall arrange and fund educational courses for brokers and salespersons employed by the brokerage as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(7.2) The brokerage shall fund the educational courses for brokers and salespersons employed by the brokerage as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course, if no time period is specified in that order.

Public access

(8) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

23. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 24 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

24. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 23 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

25. (1) Although a warrant issued under section 24 would otherwise be required, an investigator may exercise any of the powers described in subsection 24 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Freeze order

26. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a client, customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the clients or customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund that is subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order is made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of clients or customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order relating to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Duty of brokerage

27. A brokerage shall ensure that every salesperson and broker that the brokerage employs is carrying out their duties in compliance with this Act and the regulations.

Trust account

28. (1) Every brokerage shall maintain in Ontario an account designated as a trust account in a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a loan or trust corporation, a credit union, as defined in the Credit Unions and Caisses Populaires Act, 1994 or the Province of Ontario Savings Office in which shall be deposited all money that comes into the brokerage's hands in trust for other persons in connection with the brokerage's business, and shall at all times keep the money separate and apart from money belonging to the brokerage and shall disburse the money only in accordance with the terms of the trust.

Disclosure

(2) Brokerages shall fully and clearly disclose in writing to a person depositing trust money the terms on which the brokerage deposits the money, including whether the money is deposited in an interest bearing account and the interest rate that the brokerage receives on the money.

Interest

(3) Unless otherwise provided by contract, all interest on the trust money referred to in subsection (1) shall be paid to the beneficial owner of the trust money.

Entitlement unclear

(4) If a brokerage holds money in trust for a period of two years and entitlement to the money has not been determined or is unclear, the brokerage shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Unclaimed trust money

(5) If a brokerage holds money in trust for a period of one year after the person for whom it is held first became entitled to payment of the money and the person cannot be located, the brokerage shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Attempt to locate person entitled to payment of money

(6) Before the brokerage pays the money under subsection (5), the brokerage shall use reasonable efforts to locate the person entitled to the money being held in trust.

Information on entitlement

(7) When a brokerage pays money over under subsection (4) or (5), the brokerage shall provide to the administrative authority or to the Minister of Finance, as the case may be, as much information as the brokerage has in order to determine who is entitled to the trust money.

Money held in trust

(8) If the administrative authority has been paid money under clause (4) (a) or (5) (a), it shall hold the money in trust until the money is claimed by the person who is entitled to it or the money is transferred to the Minister of Finance under subsection (11).

Use of interest

(9) If money has been paid to the administrative authority under clause (4) (a) or (5) (a), the administrative authority shall allocate any interest that is earned after it has received the money to a separate account and may use the money from that account only to cover the costs of administering the trust fund and processing claims for the recovery of money held in trust.

Same

(10) If money to which clause (4) (a) or (5) (a) applies is held in an interest bearing account and the money is paid to the administrative authority, the administrative authority shall treat the money that is paid as a capital amount, and for purposes of subsection (9), interest shall be deemed not to be earned on the money until after the administrative authority has received it.

Unclaimed trust money to Minister of Finance

(11) If the administrative authority holds money that has been paid under clause (4) (a) or (5) (a) for a period of five years, the administrative authority shall pay the money to the Minister of Finance within one year after it has been held for the five-year period.

Attempt to locate person entitled to money

(12) The Minister or the administrative authority, as the case may be, shall use reasonable efforts to locate the person entitled to the money paid under subsection (5).

Rights preserved

(13) The payment of money held in trust to the Minister of Finance or the administrative authority is made without any prejudice to the rights of any person to claim entitlement to the trust money.

Payment

(14) The Minister of Finance or the administrative authority that receives money under subsection (4) or (5) shall pay it to the person entitled to the money.

Transition

(15) If a person who was registered as a broker under the Real Estate and Business Brokers Act immediately before that Act is repealed is holding money to which subsection (4) or (5) would apply if they were in force for the period specified in the subsection or for a longer period immediately before this section is proclaimed into force, within one year after this section has come into force, the person deemed to be a brokerage under subsection 50 (2) shall pay the money to,

(a) the administrative authority; or

(b) if there is no designated administrative authority, the Minister of Finance.

Notice of changes to registrar

29. (1) Every brokerage shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service;

(b) in the case of a corporation or partnership, any change in the officers or directors; and

(c) the date of commencement or termination of the employment of every broker and salesperson and, in the case of termination of employment of a broker or salesperson, the reason for the termination.

Same

(2) Every broker or salesperson shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; and

(b) the commencement or termination of his or her employment by a brokerage and the date of the commencement or termination.

Timing

(3) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(4) Every brokerage shall, when required by the registrar with the approval of the director, file a financial statement showing the matters specified by the registrar and signed by the broker of record and certified by a person licensed under the Public Accountancy Act.

Confidential

(5) The information contained in a financial statement filed under subsection (4) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Carrying on business as sole proprietor

30. (1) A brokerage carrying on business alone through an individual broker shall carry on business in the name of the broker and shall not use any description or device that would indicate that the brokerage's business is being carried on by more than one person or by a corporation.

Exception

(2) Despite subsection (1), a surviving or remaining partner may carry on business in the name of the original partnership if the surviving or remaining partner publishes on all letterhead, circulars and advertisements used in connection with the business the fact that the surviving or remaining partner is the sole proprietor.

Restrictions re: employees

31. No brokerage shall,

(a) employ another brokerage's broker or salesperson to trade in real estate or permit such broker or salesperson to act on the brokerage's behalf;

(b) employ an unregistered person to perform a function for which registration is required; or

(c) pay any commission or other remuneration to a person referred to in clause (a) or (b).

Restrictions re: brokers and salespersons

32. (1) No broker or salesperson shall trade in real estate on behalf of any brokerage other than the brokerage which employs the broker or salesperson.

Same

(2) No broker or salesperson is entitled to or shall accept any commission or other remuneration for trading in real estate from any person except the brokerage which employs the broker or salesperson.

Statement respecting interest

33. (1) Unless the registrant first delivers to all other parties to the agreement a written statement that he, she or it is a brokerage, broker or salesperson, as the case may be, and the other parties have acknowledged receipt of the statement in writing, no registrant shall, either directly or indirectly,

(a) purchase, lease, exchange or otherwise acquire for himself, herself, or itself, any interest in real estate or make an offer to do so; or

(b) divest himself, herself, or itself of any interest in real estate, or make an offer to do so.

Details if property listed

(2) If real estate in respect of which a registrant is required to give a statement under subsection (1) is listed with the brokerage or, in the case of a broker or salesperson, is listed with the brokerage by which the broker or salesperson is employed, the statement shall include,

(a) full disclosure of all facts within the registrant's knowledge that affect or will affect the value of the real estate; and

(b) the particulars of any negotiation or agreement by or on behalf of the registrant for the sale, exchange, lease or other disposition of any interest in the real estate to any other person.

Prohibition re: breaking contract

34. (1) No registrant shall induce any party to an agreement for purchase and sale or an agreement for rental of real estate to break the agreement for the purpose of entering into another such agreement.

Date of signing

(2) Every salesperson and broker shall make all reasonable efforts to ensure that a person signing an agreement in respect of a trade in real estate sets out the date upon which the signature was affixed.

Commission

(3) Unless agreed to in writing by the vendor, no brokerage is entitled to claim commission or other remuneration from the vendor in respect of a trade in real estate if the real estate is, to the knowledge of the brokerage, covered by an unexpired listing agreement with another brokerage.

Falsifying information

35. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to a trade in real estate.

Furnishing false information

36. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to a trade in real estate.

Commission and remuneration, scale

37. (1) All commission or other remuneration payable to a brokerage in respect of a trade in real estate shall be either an agreed amount or percentage of the sale price or rental price, as the case may be, but not both and, if there is no agreement as to the amount of the commission, the rate of commission or other remuneration or other basis or amount of remuneration shall be that generally prevailing in the community where the real estate is located.

Same

(2) If the commission payable in respect of a trade in real estate is expressed as a percentage of the sale price or rental price, the percentage does not have to be fixed but may be expressed as a series of percentages that decrease at specified amounts as the sale price or rental price increases.

Same

(3) No registrant shall request or enter into an arrangement for the payment of a commission or any other remuneration based on the difference between the price at which real estate is listed for sale or rental and the actual sale price or rental price, as the case may be, of the real estate, nor is a registrant entitled to retain any commission or other remuneration computed upon any such basis.

False advertising

38. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to trading in real estate.

Order of registrar re: false advertising

39. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 14 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Restraining orders

40. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

41. (1) A person is guilty of an offence who,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 21, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under the Act, other than a code of ethics established by the Minister under section 51.

Brokerages

(2) An officer or director of a brokerage is guilty of an offence who fails to take reasonable care to prevent the brokerage from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(4) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

42. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer.

Default in payment of fines

43. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Real Estate and Business Brokers Act, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such a fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

44. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

45. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

46. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

47. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

48. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names of and information concerning registrants

49. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

50. (1) Despite the repeal of the Real Estate and Business Brokers Act, any person who was registered as a broker or salesperson under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a broker or salesperson, as the case may be, under this Act until the person is required to renew their registration under this Act.

Same

(2) If a person was registered as a broker under the Real Estate and Business Brokers Act immediately before this Act is proclaimed into force and the person would be required to be registered as a brokerage under this Act, the person shall be deemed to be registered as a brokerage under this Act until the person is required to renew their registration under this Act.

PART VIII
REGULATIONS

Minister's regulations

51. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 21 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matter that may be delegated by the Lieutenant Governor in Council under section 52.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the designated administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 52, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

52. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons or class of trades from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. prescribing educational requirements for registration and renewals of registration, establishing areas of specialization and prescribing different educational requirements for each area and establishing a certification process in respect of an area of specialization;

4. governing specialization in respect of brokerages that are corporations, including restricting or prohibiting the certification of corporations as specialists;

5. designating an entity as an authority to develop educational requirements and accredit institutions or programs to provide specialist certification;

6. respecting financial security requirements for brokerages, brokers and salespersons, including requiring them to be bonded or insured or have collateral security, and prescribing the forfeiture of bonds, the disposition of proceeds and other terms related to the financial security requirements;

7. if there is a requirement that brokerages, brokers or salespersons be insured, prescribing the minimum amount of insurance for which they must be insured and prescribing the insurers with which they must be insured;

8. governing the documents, records and trust accounts that must be kept by brokerages, including the manner and location in which they are kept and the time periods for retaining such information and authorizing the registrar to specify the location at which they must be kept;

9. prescribing the responsibilities of brokers of record, brokerages, brokers or salespersons;

10. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

11. prescribing procedures and other matters related to complaints under section 19;

12. respecting inspections and investigations under this Act;

13. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

14. requiring registrants to provide, on request and in the prescribed circumstances, proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

15. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

16. varying the manner in which a notice under subsection 26 (7) or a lien under subsection 44 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

17. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

18. governing the activities of registrants including,

i. prescribing matters that must be disclosed and when they must be disclosed in the course of a trade in real estate, including matters related to any holdings in brokerages other than the brokerage by which they are employed, in the case of salespersons and brokers, or in other brokerages, in the case of brokerages and the conditions under which such disclosures may be required,

ii. setting out the manner in which trust accounts are wound down when a brokerage's registration ends,

iii. regulating advertising and representations or promises intended to induce a trade in real estate,

iv. regulating listing agreements, representation agreements and specific types of representation agreements,

v. prescribing conditions that must be met before commissions or other remuneration may be charged or collected,

vi. prescribing statements that are to be provided in respect of any trade in real estate, the content of the statement, the manner in which the statement is to be provided, the circumstances under which a statement is not required and the consequences of failing to provide a statement,

vii. setting out obligations of a brokerage, broker and salesperson that follow the acceptance of an offer to sell, purchase, exchange, lease or rent real estate;

19. governing the conduct of registrants when they represent more than one party in a trade;

20. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

21. prescribing matters that must be disclosed by brokers and salespersons to the brokerages by which they are employed and to brokerages that are prospective employers and the conditions under which such disclosures are required;

22. requiring the registrar to make available to the public the names of registrants and prescribing the form and manner in which the names of registrants are made available and prescribing other information in respect of registrants that may be made available to the public;

23. requiring registrants to maintain business premises that comply with the prescribed rules;

24. providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

25. delegating any matter that may be the subject of a regulation under this section to the Minister;

26. prescribing rules relating to addresses for service under the Act;

27. prescribing any matter or thing that this Act refers to as being prescribed or in accordance with the regulations;

29. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act.

Residual authority to act

(2) Despite any delegation to the Minister under paragraph 25 of subsection (1) and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART IX
COMMENCEMENT AND SHORT TITLE

Commencement

53. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

54. The short title of the Act set out in this Schedule is the Real Estate and Business Brokers Act, 2002.

SCHEDULE D
TRAVEL INDUSTRY ACT, 2002

CONTENTS

PART I
DEFINITIONS AND APPLICATION

1.

Definitions

PART II
OFFICERS

2.

3.

Director

Registrar

PART III
PROHIBITIONS
RE: PRACTICE

4.

5.

6.

7.

Prohibition against acting as a travel agent or travel wholesaler unless registered

Changes: corporations

Offices of travel agents

Registration a requirement to bring action

PART IV
REGISTRATION

8.

9.

10.

11.

12.

13.

14.

15.

Registration

Registration of corporations

Refusal to register or renew, suspension, etc.

Notice re: refusal, suspension, etc.

Immediate suspension

Requirements for hearing request

Further application

Notice of transfer of shares

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

16.

17.

18.

20.

21.

22.

23.

24.

Complaints

Inspection by registrar

Discipline proceedings

Appointment of investigators

Search warrant

Searches in exigent circumstances

Appointment of receiver and manager

Freeze order

PART VI
CONDUCT AND OFFENCES

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

Notice of changes to registrar

Liability for deposits

Falsifying information

Furnishing false information

False advertising

Order of registrar re: false advertising

Restraining orders

Offence

Orders for compensation, restitution

Default in payment of fines

Liens and charges

PART VII
GENERAL

36.

37.

38.

39.

40.

41.

Matters confidential

Service

Fees

Certificate as evidence

Names and information concerning registrants

Transition

PART VIII
TRAVEL INDUSTRY
COMPENSATION FUND

42.

Compensation fund

PART IX
REGULATIONS

43.

44.

Minister's regulations

Lieutenant Governor in Council regulations

PART X
COMMENCEMENT AND SHORT TITLE

45.

46.

Commencement

Short title

______________

PART I
DEFINITIONS AND APPLICATION

Definitions

1. (1) In this Act,

"administrative authority" means the administrative authority as designated under section 3 of the Safety and Consumer Statutes Administration Act, 1996 for the purpose of administering this Act; ("organisme d'application")

"equity share" means, in respect of a corporation, a share of a class or series of shares of a corporation that carries a voting right either under all circumstances or under circumstances that have occurred and are continuing; ("action participante")

"Fund" means the Travel Industry Compensation Fund continued under section 42; ("Fonds")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act is assigned; ("ministre")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and the assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions normally performed by an individual occupying such office; ("dirigeant")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"registrant" means a travel agent or a travel wholesaler who is registered as a travel agent or a travel wholesaler or as both under this Act; ("personne inscrite")

"travel agent" means a person who sells, to consumers, travel services provided by another person; ("agent de voyages")

"travel services" means transportation, sleeping accommodation or other services for the use of a traveller, tourist or sightseer; ("service de voyages")

"travel wholesaler" means a person who acquires rights to travel services for the purpose of resale to a travel agent or who carries on the business of dealing with travel agents or travel wholesalers for the sale of travel services provided by another person; ("voyagiste")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed. ("Tribunal")

Associated shareholders

(2) For purposes of this Act, one shareholder is associated with another shareholder in any of the following circumstances:

1. One shareholder is a corporation of which the other shareholder is an officer or director.

2. One shareholder is a partnership of which the other shareholder is a partner.

3. Both shareholders are partners of the same partnership.

4. One shareholder is a corporation that is controlled directly or indirectly by the other shareholder.

5. Both shareholders are corporations and one shareholder is controlled directly or indirectly by the same person who controls directly or indirectly the other shareholder.

6. Both shareholders are members of a voting trust and the trust relates to shares of the corporation.

7. Both shareholders are associated within the meaning of paragraphs 1 to 6 with the same person.

PART II
OFFICERS

Director

2. (1) Subject to subsection (2), a director shall be appointed for the purposes of this Act and a maximum of two deputy directors may be appointed,

(a) by the board of the administrative authority; or

(b) by the Minister if there is no designated administrative authority.

Director cannot be registrar

(2) A person appointed as the registrar or a deputy registrar under subsection 3 (1) shall not be appointed as the director or a deputy director under subsection (1).

Deputy director, duties

(3) A deputy director shall perform such duties as are assigned by the director and shall act as director in his or her absence.

Deputy director

(4) If more than one deputy director is appointed, only one deputy director may act as the director under subsection (3) at any one time.

Registrar

3. (1) Subject to subsection (2), a registrar shall be appointed for the purposes of this Act and a maximum of two deputy registrars may be appointed,

(a) by the board of the administrative authority; or

(b) by the deputy minister to the Minister if there is no designated administrative authority.

Registrar cannot be director

(2) A person appointed as the director or deputy director under subsection 2 (1) shall not be appointed as the registrar or a deputy registrar under subsection (1).

Powers and duties

(3) The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director and a deputy registrar shall perform such duties as are assigned by the registrar and shall act as the registrar in the registrar's absence.

Deputy registrar

(4) If more than one deputy registrar is appointed, only one deputy registrar may act as the registrar under subsection (3) at any one time.

PART III
PROHIBITIONS
RE: PRACTICE

Prohibition against acting as a travel agent or travel wholesaler unless registered

4. (1) No person shall act or hold himself, herself or itself out as being available to act,

(a) as a travel agent unless the person is registered as a travel agent under this Act; or

(b) as a travel wholesaler unless the person is registered as a travel wholesaler under this Act.

Exemption

(2) Despite subsection (1), a person who is exempt from registration by regulation and is not registered under this Act may act as a travel agent or travel wholesaler or carry out such activities of a travel agent or travel wholesaler as are prescribed.

Changes: corporations

5. (1) A change in the officers or directors of a corporation registered as a travel agent or travel wholesaler may be made only with the consent of the registrar.

Same: partnerships

(2) A change in the membership of a partnership shall be deemed to create a new partnership for the purpose of registration.

Offices of travel agents

6. (1) No travel agent shall conduct business from a place at which the public is invited to deal unless the place is named as an office in the travel agent's registration.

Branch offices

(2) If more than one office is named in the registration, one shall be designated as the main office and the remainder as branch offices.

Same

(3) A travel agent or applicant for registration as a travel agent is entitled to have any place of business specified by the travel agent or applicant named in the registration except such branch offices as are in contravention of the regulations.

Registration a requirement to bring action

7. No action shall be brought against a consumer of travel services for a commission or other remuneration in relation to the provision of those services unless at the time of rendering the services the person bringing the action was registered or exempt from registration under this Act and the court may stay any such action upon motion.

PART IV
REGISTRATION

Registration

8. (1) An applicant that meets the prescribed conditions and has the prescribed requirements is entitled to registration or renewal of registration by the registrar unless the applicant or an interested person in respect of the applicant is carrying on activities that are, or will be if the applicant is registered, in contravention of this Act or the regulations or unless,

(a) having regard to the applicant's financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business;

(b) the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty;

(c) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; or

(d) the applicant is a corporation and,

(i) is incorporated without share capital,

(ii) having regard to its financial position or the financial position of an interested person in respect of the corporation, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iii) having regard to the financial position of its officers or directors or of an interested person in respect of its officers or directors, the applicant cannot reasonably be expected to be financially responsible in the conduct of its business,

(iv) the past conduct of its officers or directors or of an interested person in respect of its officers or directors or of an interested person in respect of the corporation affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, or

(v) an officer or director of the corporation makes a false statement or provides a false statement in an application for registration or for renewal of registration.

Conditions

(2) A registration is subject to such conditions as are consented to by the applicant or registrant, as are applied by the registrar under section 10, as are ordered by the Tribunal or as are prescribed.

Registration not transferable

(3) A registration is not transferable.

Integrity

(4) Without restricting the generality of clause (1) (b) and subclause (1) (d) (iv), a conviction for an offence under sections 126, 127 and 128 of the Immigration and Refugee Protection Act (Canada) is sufficient grounds for the purpose of those provisions.

Interested person

(5) For the purposes of this section, a person shall be deemed to be an interested person in respect of another person if the person is an associated shareholder of the person or if, in the opinion of the registrar,

(a) the person has or may have a beneficial interest in the other person's business;

(b) the person exercises or may exercise control either directly or indirectly over the other person; or

(c) the person has provided or may have provided financing either directly or indirectly to the other person's business.

Registration of corporations

9. (1) When it registers and on each renewal of its registration, a travel agent or travel wholesaler that is a corporation shall disclose to the registrar the identity of any shareholders or any associated shareholders that beneficially own or control 10 per cent or more of the equity shares issued and outstanding at the time of the registration or the renewal of registration, as the case may be.

Calculating number of shares

(2) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purposes of this section, the total number shall be calculated as the total number of all shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes carried.

Refusal to register or renew, suspension, etc.

10. (1) Subject to section 11, the registrar may refuse to register an applicant or may suspend or revoke a registration or refuse to renew a registration if, in his or her opinion, the applicant or registrant is not eligible for registration under section 8 or the registrant is in breach of a condition of the registration.

Conditions

(2) Subject to section 11, the registrar may,

(a) approve the registration or renewal of a registration on such conditions as he or she considers appropriate; and

(b) at any time apply to a registration such conditions as he or she considers appropriate.

Notice re: refusal, suspension, etc.

11. (1) The registrar shall notify an applicant or registrant in writing if he or she proposes to,

(a) refuse to grant or renew a registration;

(b) suspend or revoke a registration;

(c) apply conditions to a registration or renewal to which the applicant or registrant has not consented; or

(d) refuse to name a branch office in a registration.

Content of notice

(2) The notice of proposal shall set out the reasons for the proposed action and shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within 15 days after service of the notice, a written request for a hearing to the registrar and to the Tribunal.

Service

(3) The notice of proposal shall be served on the applicant or registrant in accordance with section 37.

If no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

Hearing

(5) If a hearing is requested, the Tribunal shall hold the hearing and may by order direct the registrar to carry out the registrar's proposal or substitute its opinion for that of the registrar and the Tribunal may attach conditions to its order or to a registration.

Parties

(6) The registrar, the applicant or registrant and such other persons as the Tribunal may specify are parties to the proceedings under this section.

Voluntary cancellation

(7) The registrar may cancel a registration upon the request in writing of the registrant and this section does not apply to the cancellation.

Continuation pending renewal

(8) If, within the time prescribed or, if no time is prescribed, before the expiry of the registrant's registration, the registrant has applied for renewal of a registration, met the prescribed conditions and paid the required fee, the registration shall be deemed to continue,

(a) until the renewal is granted; or

(b) if the registrant is served notice that the registrar proposes to refuse to grant the renewal, until the time for requesting a hearing has expired or, if a hearing is requested, until the Tribunal makes its order.

Immediate effect

(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Immediate suspension

12. (1) If the registrar proposes to suspend or revoke a registration under section 11 and if the registrar considers it in the public interest to do so, the registrar may by order temporarily suspend the registration.

Immediate effect

(2) An order under subsection (1) takes effect immediately.

Expiry of order

(3) If a hearing is requested under section 11,

(a) the order expires 15 days after the written request for a hearing is received by the Tribunal; or

(b) the Tribunal may extend the time of expiration until the hearing is concluded, if a hearing is commenced within the 15-day period referred to in clause (a).

Same

(4) Despite subsection (3), if it is satisfied that the conduct of the registrant has delayed the commencement of the hearing, the Tribunal may extend the time of the expiration for the order,

(a) until the hearing commences; and

(b) once the hearing commences, until the hearing is concluded.

Requirements for hearing request

13. (1) A request for a hearing under section 11 is sufficiently served if delivered personally or sent by registered mail to the registrar and to the Tribunal.

Same

(2) If service is made by registered mail, it shall be deemed to be made on the third day after the day of mailing.

Other methods

(3) Despite subsection (1), the Tribunal may order any other method of service.

Further application

14. A person whose registration is refused, revoked or refused renewal may reapply for registration only if,

(a) the time prescribed to reapply has passed since the refusal, revocation or refusal to renew; and

(b) new or other evidence is available or it is clear that material circumstances have changed.

Notice of transfer of shares

15. (1) In addition to the disclosure required under section 9, every registrant that is a corporation shall notify the registrar in writing within 30 days after the issue or the transfer of any equity shares if the issue or transfer results in any one shareholder or any associated shareholders,

(a) acquiring or accumulating beneficial ownership or control of 10 per cent or more of the total number of all issued and outstanding equity shares of the registrant; or

(b) increasing such holding, if the shareholder or associated shareholders already beneficially owned or controlled 10 per cent or more of the total number of all issued and outstanding equity shares before the issue or transfer.

Same

(2) Despite subsection (1), if a registrant that is a corporation becomes aware of a transfer that otherwise falls into subsection (1) after the transfer has taken place, it shall notify the registrar in writing within 30 days after knowledge of the transfer comes to the attention of its officers or directors.

Calculation of total number of equity shares

(3) In calculating the total number of equity shares of the corporation beneficially owned or controlled for the purpose of this section, the total number shall be calculated as the total of all the shares beneficially owned or controlled, but each share that carries the right to more than one vote shall be calculated as the number of shares equalling the total number of votes it carries.

PART V
COMPLAINTS, INSPECTION
AND DISCIPLINE

Complaints

16. (1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

Request for information

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

Duty to comply with request

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

Procedures

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Refer the matter, in whole or in part, to the discipline committee.

4. Take an action under section 10, subject to section 11.

5. Take further action as is appropriate in accordance with the Act.

Inspection by registrar

17. (1) The registrar or a person designated in writing by the registrar may conduct an inspection and may, as part of that inspection, enter and inspect at any reasonable time the business premises of a registrant, other than any part of the premises used as a dwelling, for the purpose of,

(a) ensuring compliance with this Act and the regulations;

(b) dealing with a complaint under section 16; or

(c) ensuring the registrant remains entitled to registration.

Powers on inspection

(2) While carrying out an inspection, an inspector,

(a) is entitled to free access to all money, valuables, documents and records of the person being inspected that are relevant to the inspection;

(b) may use any data storage, processing or retrieval device or system used in carrying on business in order to produce information in any form; and

(c) may, upon giving a receipt for them, remove for examination and may copy anything relevant to the inspection including any data storage disk or other retrieval device in order to produce information, but shall promptly return the thing to the person being inspected.

Identification

(3) An inspector shall produce, on request, evidence of his or her authority to carry out an inspection.

Assistance to be given

(4) An inspector may, in the course of an inspection, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information in any form, and the person shall produce the document or record or provide the assistance.

Obstruction prohibited

(5) No person shall obstruct an inspector conducting an inspection or withhold from him or her or conceal, alter or destroy any money, valuables, documents or records that are relevant to the inspection.

Use of force prohibited

(6) An inspector shall not use force to enter and inspect premises under this section.

Admissibility of copies

(7) A copy of a document or record certified by an inspector to be a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Discipline proceedings

18. (1) The board of the administrative authority or the Minister if there is no designated administrative authority may establish a discipline committee to hear and determine, in accordance with the prescribed procedures, issues concerning whether registrants have failed to comply with the code of ethics established by the Minister.

Appeals committee

(2) If a discipline committee is established, an appeals committee shall be established to consider, in accordance with the prescribed procedures, appeals from the discipline committee.

Composition

(3) The composition and manner of appointment of the members of the discipline committee and appeals committee shall be as prescribed.

Result of a determination

(4) If the discipline committee makes a determination under subsection (1) that a registrant has failed to comply with the code of ethics, it may order any of the following, as appropriate:

1. In accordance with the terms that may be specified by the committee, require the registrant to fund educational courses for the employees of the registrant or to arrange and fund such educational courses.

2. Despite subsection 12 (1) of the Safety and Consumer Statutes Administration Act, 1996, impose such fine as the committee considers appropriate, to a maximum of $25,000, or such lesser amount as may be prescribed, to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

3. Suspend or postpone the funding or the funding and arranging of educational courses or the imposition of the fine for such period and upon such terms as the committee designates.

4. Fix and impose costs to be paid by the registrant to the administrative authority or to the Minister of Finance if there is no designated administrative authority.

Appeal

(5) A party to the discipline proceeding may appeal the final order of the discipline committee to the appeals committee.

Power of the appeals committee

(6) The appeals committee may by order overturn, affirm or modify the order of the discipline committee and may make an order under subsection (4).

Payment of fine

(7) The registrant shall pay any fine imposed under subsection (4),

(a) on or before the day specified in the order of the discipline committee or, if the fine is the subject of an appeal, on or before the day specified in the order of the appeals committee; or

(b) on or before the 60th day after the date of the last order made in respect of the fine, if no day is specified in that order.

Arranging and funding educational
courses

(8) The registrant shall arrange and fund the educational courses for employees as required under subsection (4) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee.

Funding educational courses

(9) The registrant shall fund the educational courses for employees as required under subsection (4),

(a) within the time period specified in the order of the discipline committee or, if the requirement is the subject of an appeal, within the time period specified in the order of the appeals committee; or

(b) at the first reasonable opportunity after the last order made in respect of the educational course if no time period is specified in that order.

Public access

(10) Decisions of the discipline committee and the appeals committee shall be made available to the public in such manner as may be prescribed.

Appointment of investigators

20. (1) The director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 21 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

21. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations or has committed an offence under the law of any jurisdiction that is relevant to the person's fitness for registration under this Act, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations or to the person's fitness for registration; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations or the person's fitness for registration that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Powers under warrant

(2) A warrant obtained under subsection (1) authorizes an investigator appointed under subsection 20 (1),

(a) upon producing his or her appointment, during the hours specified in the warrant, to enter or access the building, dwelling, receptacle or place specified in the warrant and examine anything relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(b) to use any data storage, processing or retrieval device or system used in carrying on business in order to produce information or other evidence, in any form, relevant to the contravention of this Act or the regulations or the person's fitness for registration;

(c) to exercise any of the powers specified in subsections (6), (11) and (12); and

(d) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information or other evidence relevant to the contravention of this Act or the regulations or the person's fitness for registration will be obtained through the use of the technique or procedure or the doing of the thing.

Entry of dwelling

(3) Despite subsection (2), an investigator shall not exercise the power under a warrant to enter a place, or part of a place, used as a dwelling unless,

(a) the justice of the peace is informed that the warrant is being sought to authorize entry into a dwelling; and

(b) the justice of the peace authorizes the entry into the dwelling.

Conditions on search warrant

(4) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(5) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry or access under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued, but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by an investigator.

Use of force

(9) An investigator may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy anything relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce information or evidence in any form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation, upon giving a receipt for it, may remove for examination and may copy anything relevant to the investigation, including any data storage disk or other retrieval device in order to produce information or evidence relevant to the investigation, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

22. (1) Although a warrant issued under section 21 would otherwise be required, an investigator may exercise any of the powers described in subsection 21 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Appointment of receiver and manager

23. (1) The director may apply to the Superior Court of Justice for the appointment of a receiver and manager to take possession and control of the business of a registrant if,

(a) an investigation of the registrant has been undertaken under this Act;

(b) the director has made or is about to make an order under section 24;

(c) the director has reasonable grounds to believe that a registrant has failed or is about to fail to provide contracted and paid for travel services to a customer;

(d) the director is advised that the registrar has proposed to suspend or revoke a registration under section 11 or to temporarily suspend a registration under section 12; or

(e) the director is advised that an investigation under section 5.1 of the Ministry of Consumer and Business Services Act has been ordered.

Order to appoint

(2) The court may make an order for the appointment of a receiver and manager, if it is satisfied that it is in the public interest to have a receiver and manager take control of the business of a registrant.

Notice

(3) The court may make an order under subsection (2) without notice, or if it considers that notice should be given, upon such notice as the court stipulates.

Appointment not longer than 60 days

(4) The order of the court shall provide for the term of the receiver and manager but the term shall not be longer than 60 days.

60-day extensions

(5) Despite subsection (4), the director may, without notice, apply to the court to extend the receiver and manager's term for further terms of not more than 60 days each.

Duties of receiver and manager

(6) The receiver and manager shall,

(a) take possession and control of the assets of the registrant's business;

(b) conduct the business of the registrant; and

(c) take such steps that are, in the opinion of the receiver and manager, necessary for the rehabilitation of the business.

Powers of receiver and manager

(7) The receiver and manager has all the powers of the board of directors of the corporation, if the registrant is a corporation, or of a sole proprietor or all partners if the registrant is not a corporation.

May exclude directors, etc.

(8) Without limiting the generality of subsection (7), the receiver and manager may exclude the directors, officers, employees and agents of the business, interested persons in respect of the business and any other persons connected with the business from the premises and property of the business.

Interested persons

(9) Subsection 8 (5) applies to this section except that the opinion as to whether a person is deemed to be interested in respect of another person is that of the receiver and manager.

Freeze order

24. (1) If the conditions in subsection (2) are met, the director may in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a registrant or former registrant to hold those funds or assets;

(b) order a registrant or former registrant to refrain from withdrawing any asset or trust fund from a person having it on deposit or controlling it; or

(c) order a registrant or former registrant to hold any asset or trust fund of a customer or other person in trust for the person entitled to it.

Conditions

(2) The director may make an order under subsection (1) if he or she believes that it is advisable for the protection of the customers of a registrant or former registrant and,

(a) a search warrant has been issued under this Act; or

(b) criminal proceedings or proceedings in relation to a contravention under this Act or under any other Act are about to be or have been instituted against the registrant or former registrant in connection with or arising out of the business in respect of which the registrant or former registrant is or was registered.

Limitation

(3) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(4) The director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(5) Subsection (1) does not apply if the registrant or former registrant files with the director, in such manner and amount as the director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(6) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of any asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund subject to the order.

Notice

(7) If an order is made under this section, the director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice, and the notice has the same effect as the registration of a certificate of pending litigation, except that the director may in writing revoke or modify the notice.

Cancellation or discharge application

(8) A registrant or former registrant in respect of which an order has been made under subsection (1) or any person having an interest in land in respect of which a notice is registered under subsection (7) may apply to the Tribunal for cancellation in whole or in part of the order or for discharge in whole or in part of the registration.

Disposition by Tribunal

(9) The Tribunal shall dispose of the application after a hearing and may cancel the order or discharge the registration in whole or in part if the Tribunal finds,

(a) that the order or registration is not required in whole or in part for the protection of customers of the applicant or of other persons having an interest in the land; or

(b) that the interests of other persons are unduly prejudiced by the order or registration.

Parties

(10) The applicant, the director and such other persons as the Tribunal may specify are parties to the proceedings before the Tribunal.

Court application

(11) If the director has made an order under subsection (1) or registered a notice under subsection (7), he or she may apply to the Superior Court of Justice for directions or an order as to the disposition of assets, trust funds or land affected by the order or notice.

Notice not required

(12) An application by the director under this section may be made without notice to any other person.

PART VI
CONDUCT AND OFFENCES

Notice of changes to registrar

25. (1) Every registrant shall, within five days after the event, notify the registrar in writing of,

(a) any change in address for service; or

(b) in the case of a corporation or partnership, any change in the officers or directors.

Timing

(2) The registrar shall be deemed to have been notified on the day on which he or she is actually notified or, where the notification is by mail, on the day of mailing.

Financial statements

(3) Every registrant shall, when required by the registrar with the approval of the director, file a financial statement showing the matters specified by the registrar, signed by the registrant in the case of a sole proprietorship or by an officer of the registrant if the registrant is a partnership or corporation and certified by a person licensed under the Public Accountancy Act.

Same

(4) The registrar may require that registrants with a prescribed value of sales submit financial statements on a quarterly basis.

Confidential

(5) The information contained in a financial statement filed under subsection (3) is confidential and no person shall otherwise than in the ordinary course of the person's duties communicate any such information or allow access to the financial statement.

Liability for deposits

26. (1) Where any person is entitled to the repayment of any money paid for or on account of a travel service, any travel agent and any travel wholesaler who received such money or any part thereof is liable jointly and severally with any other person liable therefore, for the repayment of such money to the extent of the amount received by him, her or it.

Application of subs. (1)

(2) Subsection (1) does not apply where,

(a) the travel agent or travel wholesaler has properly disbursed the money received;

(b) the travel agent or travel wholesaler has acted in good faith and at arm's length with any person with whom he, she or it would, but for this subsection, be jointly and severally liable under subsection (1); and

(c) the person referred to in subsection (1) who is entitled to repayment of money is entitled to be reimbursed therefore out of the Fund,

unless the travel agent or travel wholesaler would, but for this subsection, be jointly liable under subsection (1) with a travel agent and travel wholesaler who is not registered under this Act.

Falsifying information

27. No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to the provision of travel services.

Furnishing false information

28. No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to the provision of travel services.

False advertising

29. No registrant shall make false, misleading or deceptive statements in any advertisement, circular, pamphlet or material published by any means relating to the provision of travel services.

Order of registrar re: false advertising

30. (1) If the registrar believes on reasonable grounds that a registrant is making a false, misleading or deceptive statement in any advertisement, circular, pamphlet or material published by any means, the registrar may,

(a) order the cessation of the use of such material;

(b) order the registrant to retract the statement or publish a correction of equal prominence to the original publication; or

(c) order both a cessation described in clause (a) and a retraction or correction described in clause (b).

Procedures

(2) Section 11 applies with necessary modifications to an order under this section in the same manner as to a proposal by the registrar to refuse a registration.

Effect

(3) The order of the registrar shall take effect immediately, but the Tribunal may grant a stay until the registrar's order becomes final.

Pre-approval

(4) If the registrant does not appeal an order under this section or if the order or a variation of it is upheld by the Tribunal, the registrant shall, upon the request of the registrar, submit all statements in any advertisement, circular, pamphlet or material to be published by any means to the registrar for approval before publication for such period as may be prescribed.

Restraining orders

31. (1) If it appears to the director that a person is not complying with this Act or the regulations or an order made under this Act, the director may apply to the Superior Court of Justice for an order directing that person to comply, and, upon the application, the court may make such order as the court thinks fit.

Same

(2) Subsection (1) applies in addition to any other procedures that may be available to the director, whether or not the director has exercised his or her rights under such procedures.

Appeal

(3) An appeal lies to the Divisional Court from an order made under subsection (1).

Offence

32. (1) A person is guilty of an offence who,

(a) furnishes false information in any application under this Act or in any statement or return required under this Act;

(b) fails to comply with any order, other than an order made under section 18, direction or other requirement under this Act; or

(c) contravenes or fails to comply with any section of this Act or the regulations made under this Act, other than a code of ethics established by the Minister under section 43.

Corporations

(2) An officer or director of a corporation is guilty of an offence if he or she fails to take reasonable care to prevent the corporation from committing an offence mentioned in subsection (1).

Penalties

(3) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(4) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the director.

Orders for compensation, restitution

33. (1) If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

If insurance has paid

(2) If an order is made in a person's favour under subsection (1) and that person has already received compensation or restitution from an insurer or the Fund, the person ordered to pay the compensation or make restitution shall deliver the amount to the insurer or the Fund, as the case may be.

Default in payment of fines

34. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default.

If payment made

(2) Within 10 days after the director has notice that the fine has been paid in full, the director shall inform the consumer reporting agency of the payment.

Transition

(3) If a fine is payable as a result of a conviction under the Travel Industry Act, then, despite the repeal of that Act, the director may treat the fine as if it is payable as a result of a conviction under this Act, and subsections (1) and (2) apply to such fine in like manner as they apply to a fine payable for a conviction under this Act.

Liens and charges

35. (1) If a fine payable as a result of a conviction for an offence under this Act is in default for at least 60 days, the director may by order create a lien against the property of the person who is liable to pay the fine.

Liens on personal property

(2) If the lien created by the director under subsection (1) relates to personal property,

(a) the Personal Property Security Act, except Part V, applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the director may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act.

Liens and charges on real property

(3) If the lien created by the director under subsection (1) relates to real property, the director may register the lien against the property of the person liable to pay the fine in the proper land registry office and on registration, the obligation under the lien becomes a charge on the property.

Initiation of sale proceedings prohibited

(4) The director shall not initiate sale proceedings in respect of any real property against which he or she has registered a lien under subsection (3).

Proceeds of sale

(5) If a lien is perfected by registration under subsection (2) or is registered against real property under subsection (3) and the related real or personal property is sold, the director shall ensure that the funds he or she receives as a result of the sale are used to pay the fine.

Discharge of lien

(6) Within 10 days after the director has knowledge of the payment in full of the fine, the director shall,

(a) discharge the registration of any financing statement registered under clause (2) (c); and

(b) register a discharge of a charge created on registration of a lien under subsection (3).

PART VII
GENERAL

Matters confidential

36. (1) Every person exercising any power or carrying out any duties related to the administration of this Act and the regulations shall preserve secrecy with respect to all matters that come to his, her or its knowledge in the course of exercising those powers or carrying out those duties and shall not communicate any such matters to any person except,

(a) as may be required in connection with the administration of this Act and the regulations, including any proceedings under this Act;

(b) to a ministry, department or agency of a government engaged in the administration of legislation similar to this Act or legislation that protects consumers or to any entity to which the administration of legislation similar to this Act or legislation that protects consumers has been assigned;

(c) to a prescribed entity or organization if the purpose for the communication is consumer protection;

(d) to a law enforcement agency;

(e) to his or her counsel; or

(f) with the consent of the person to whom the matter relates.

Testimony

(2) No person to whom subsection (1) applies shall be required to give testimony in any civil proceeding with regard to information obtained in the course of his or her duties under this Act except in a proceeding under this Act.

Service

37. (1) Any notice, order or request is sufficiently given or served if it is,

(a) delivered personally;

(b) sent by registered mail; or

(c) sent by another manner if the sender can prove receipt of the notice, order or request.

Deemed service

(2) If service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the person on whom service is being made establishes that the person did not, acting in good faith, through absence, accident, illness or other cause beyond the person's control, receive the notice or order until a later date.

Exception

(3) Despite subsections (1) and (2), the Tribunal may order any other method of service it considers appropriate in the circumstances.

Fees

38. (1) The Minister may by order establish fees that are payable under this Act in respect of registration, renewal of registration, late filings and other administrative matters.

Exception

(2) Subsection (1) does not apply if there is a designated administrative authority.

Non-application of the Regulations Act

(3) An order made under this section is not a regulation for the purposes of the Regulations Act.

Certificate as evidence

39. (1) For all purposes in any proceeding, a statement purporting to be certified by the director is, without proof of the office or signature of the director, admissible in evidence as proof in the absence of evidence to the contrary, of the facts stated in it in relation to,

(a) the registration or non-registration of any person;

(b) the filing or non-filing of any document or material required or permitted to be filed with the registrar;

(c) the time when the facts upon which the proceedings are based first came to the knowledge of the director; or

(d) any other matter pertaining to registration or non-registration of persons or to filing or non-filing of information.

Proof of document

(2) Any document made under this Act that purports to be signed by the director or a certified copy of the document is admissible in evidence in any proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the director without proof of the office or signature of the director.

Names and information concerning registrants

40. (1) As required by regulation, the registrar shall make available to the public the names of registrants and other information, as prescribed, in respect of registrants.

Same

(2) The names of registrants shall be made available in the prescribed form and manner and with such information as is prescribed.

Transition

41. Despite the repeal of the Travel Industry Act, any person who was registered as a travel agent or travel wholesaler under that Act immediately before this Act is proclaimed into force shall be deemed to be registered as a travel agent or travel wholesaler, as the case may be, under this Act until the person is required to renew their registration under this Act.

PART VIII
TRAVEL INDUSTRY
COMPENSATION FUND

Compensation Fund

42. (1) The Travel Industry Compensation Fund established under the Travel Industry Act is continued.

Regulations

(2) The Fund shall be administered and managed in accordance with the regulations.

PART IX
REGULATIONS

Minister's regulations

43. (1) The Minister may make regulations,

(a) establishing a code of ethics for the purposes of subsection 18 (1);

(b) governing the jurisdiction and procedures of any committee established under this Act;

(c) respecting any matters that may be delegated by the Lieutenant Governor in Council under paragraph 40 of section 44.

Delegation

(2) Despite subsection 3 (4) of the Safety and Consumer Statutes Administration Act, 1996, the Minister may, in writing, delegate to the board of the administrative authority the power to make some or all of the regulations under this section, subject to the approval of the Minister.

Approval

(3) The Minister may approve or refuse to approve the regulations but approval shall not be given unless, in his or her opinion, they have been made in accordance with the consultation criteria and process set out in the administrative agreement described in subsection 4 (1) of the Safety and Consumer Statutes Administration Act, 1996.

Revocation, transition

(4) The Minister may, in writing, revoke the delegation under this section but the revocation does not result in the revocation of the regulations, which remain valid and may be amended or revoked by the Minister.

Conflicts

(5) If there is a conflict between a regulation made under this section and a regulation made by the Lieutenant Governor in Council under section 44, the latter prevails.

General or particular

(6) A regulation under this section may be general or particular in its application.

Lieutenant Governor in Council regulations

44. (1) The Lieutenant Governor in Council may make regulations,

1. exempting any person or class of persons from any provision of this Act or the regulations and attaching conditions to an exemption;

2. respecting applications for registration or renewal of registration and prescribing conditions of registration;

3. providing for the expiration and renewal of registrations;

4. governing the composition and manner of appointment of the members of the discipline committee and appeals committee;

5. prescribing a maximum fine to be imposed for contravention of the code of ethics;

6. respecting financial security requirements for registrants or any class of registrants, including requiring them to be bonded or insured or have collateral security, and prescribing the forfeiture of bonds, the disposition of proceeds and other terms related to the financial security requirements;

7. if there is a requirement that registrants or any class of registrants be insured, prescribing the minimum amount of insurance for which they must be insured and prescribing the insurers with which they must be insured;

8. regulating the management and operation of branch offices of travel agents;

9. governing contracts for the purchase or acquisition of travel services by travel wholesalers;

10. requiring registrants to provide, on request and in the prescribed circumstances, proof of registration and prescribing the nature of the proof and the manner in which it is to be provided;

11. requiring and governing the maintenance of trust accounts by registrants or any class of registrants, prescribing the money that shall be held in trust and the conditions of the trust and authorizing the registrar to specify the location at which such trust accounts must be kept;

11.1 setting out the manner in which trust accounts are wound down when a registration ends;

12. governing the documents and records that must be kept by registrants or any class of registrants, including the manner and location in which they are kept and the time periods for retaining such information and authorizing the registrar to specify the location at which they must be kept;

13. prescribing the responsibilities of registrants or any class of registrant;

14. requiring registrants to provide information to the registrar concerning persons other than the registrants in order to assist in determining whether such persons are or may be interested persons;

15. prescribing information that a travel agent or travel wholesaler must disclose to a customer or to another registrant;

16. governing the disclosure of names of registrants and other information concerning registrants;

17. respecting procedures and other matters related to complaints under section 16;

18. respecting inspections and investigations under this Act;

19. respecting the manner in which and the frequency with which decisions of the discipline committee and appeals committee are made available to the public;

20. governing procedures for hearings held by the Tribunal and providing for the responsibility for the payment of witness fees and expenses at proceedings before the Tribunal and prescribing the amounts of the fees and expenses;

21. varying the manner in which a notice under subsection 24 (7) or a lien under subsection 35 (3) is registered as a result of technological or electronic changes in the filing of documents in the land registry office;

22. prescribing information that must be provided to the registrar and requiring that specified information be verified by affidavit;

23. governing contracts for the sale of travel services;

24. governing the administration and maintenance of the Fund;

25. requiring that the Fund be held in trust and prescribing the terms of the trust;

26. requiring the participation in the Fund by travel agents and travel wholesalers;

27. respecting and requiring the payment of levies into the Fund by travel agents and travel wholesalers and prescribing the amounts thereof;

28. respecting the payment out of the Fund of claims and procedures to be followed in respect of such claims;

29. respecting the payment out of the Fund for matters relating to the administration and operation of the Fund;

30. prescribing the circumstances under which a registrant is required to reimburse the Fund for the payment of claims to customers of a registrant and prescribing rules respecting the time and manner for the reimbursement and the imposition of penalties and interest;

31. governing the reimbursement by registrants to the Fund for money paid out of the Fund to reimburse a customer of the registrant or to provide travel services to a customer of the registrant;

32. governing procedures and obligations if a participant is in default in making a payment to the Fund;

33. respecting the borrowing of money to supplement the Fund;

34. requiring decisions in respect of claims made against the Fund to be made available to the public, prescribing the manner in which the decisions are to be made available to the public, including requiring their publication, and governing the information contained in the decision which shall not be disclosed to the public;

35. requiring the registrar to make available to the public the names of registrants and prescribing the form and manner in which the names of registrants are made available and prescribing other information in respect of registrants that may be made available to the public;

36. requiring that any information required under this Act be in a form approved by the director, the registrar or the Minister, as specified in the regulation;

37. regulating advertising and representations or promises intended to induce the sale of travel services;

38. requiring registrants or classes of registrants to submit advertisements to the registrar for approval during a prescribed period of time and prescribing the period of time;

39. requiring registrants or classes of registrants to maintain business premises that comply with the prescribed rules;

40. delegating any matter that may be the subject of a regulation under this section to the Minister;

41. prescribing rules relating to addresses for service under the Act;

43. providing for any transitional matter necessary for the effective implementation of this Act or the regulations;

44. governing the application of the Electronic Commerce Act, 2000 or any part of that Act to this Act;

45. prescribing any matter or thing that this Act refers to as being prescribed or in accordance with the regulations.

Residual authority to act

(2) Despite any delegation to the Minister under this section and without having to revoke the delegation, the Lieutenant Governor in Council continues to have authority to make regulations in respect of the matter that is the subject of the delegation.

Revocation, transition

(3) The Lieutenant Governor in Council may, in writing, revoke a delegation to the Minister under this section, but the revocation shall not result in the revocation of any regulation made by the Minister under the delegation and the regulation remains valid and may be amended or revoked by regulation made by the Lieutenant Governor in Council.

Making regulation not a revocation

(4) The making of a regulation to which subsection (2) applies by the Lieutenant Governor in Council shall not constitute the revocation of a delegation under this section unless the regulation so specifies.

General or particular

(5) A regulation under this section may be general or particular in its application.

PART X
COMMENCEMENT AND SHORT TITLE

Commencement

45. The Act set out in this Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

46. The short title of the Act set out in this Schedule is the Travel Industry Act, 2002 .

SCHEDULE E
AMENDMENTS TO OTHER ACTS

CONTENTS

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

Business Practices Act repealed

Collection Agencies Act amended

Consumer Protection Act repealed

Consumer Protection Bureau Act repealed

Consumer Reporting Act amended

Discriminatory Business Practices Act amended

Highway Traffic Act amended

Licence Appeal Tribunal Act, 1999 amended

Loan Brokers Act, 1994 repealed

Ministry of Consumer and Business
Services Act
amended

Mortgage Brokers Act amended

Motor Vehicle Dealers Act repealed

Motor Vehicle Repair Act repealed

Personal Property Security Act amended

Prepaid Services Act repealed

Real Estate and Business Brokers Act repealed

Registered Insurance Brokers Act amended

Retail Sales Tax Act amended

Safety and Consumer Statutes
Administration Act, 1996
amended

Toronto Islands Residential Community Stewardship Act, 1993 amended

Travel Industry Act repealed

Commencement

______________

Business Practices Act repealed

1. The Business Practices Act, as amended by Statutes of Ontario, 1994, chapter 27, section 73, 1997, chapter 19, section 28, 1998 chapter 18, Schedule E, sections 40 and 41, 1999, chapter 12, Schedule G, section 14 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Collection Agencies Act amended

2. (1) Clause 2 (d) of the Collection Agencies Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

Same

(2) Section 15 of the Act is repealed.

Consumer Protection Act repealed

3. The Consumer Protection Act, as amended by Statutes of Ontario, 1993, chapter 27, Schedule, 1997, chapter 35, section 1, 1998, chapter 15, Schedule E, section 4, 1998, chapter 18, Schedule E, sections 54 and 55, 1999, chapter 12, Schedule F, sections 11 to 20, 1999, chapter 12, Schedule G, section 19, 2001, chapter 9, Schedule D, section 4 and 2002, chapter 17, Schedule F, Table, is repealed.

Consumer Protection Bureau Act repealed

4. The Consumer Protection Bureau Act, as amended by Statutes of Ontario, 2001, chapter 9, Schedule D, section 13, is repealed.

Consumer Reporting Act
amended

5. (1) The definitions of "credit repair" and "credit repairer" in subsection 1 (1) of the Consumer Reporting Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule B, section 8, are repealed.

Same

(2) Sections 13.1, 13.2, 13.3, 13.4, 13.5, 13.6, 13.7 and 13.8 of the Act, as enacted by the Statutes of Ontario, 2000, chapter 26, Schedule B, section 8, are repealed.

Same

(3) Section 17 of the Act is repealed.

Discriminatory Business Practices Act amended

6. (1) Subsections 6 (2) and (3) of the Discriminatory Business Practices Act are repealed and the following substituted:

Application of
Consumer Protection Act, 2002

(2) If the Director proposes to make an order under subsection (1), subsections 106 (2) to (7) of the Consumer Protection Act, 2002 apply with necessary modifications.

Order for immediate compliance

(3) Despite subsection (2), the Director may make an order under subsection (1) to take effect immediately if, in the Director's opinion, to do so is necessary for the protection of the public or of any person and in such case subsections 107 (2) to (6) of the Consumer Protection Act, 2002 apply with necessary modifications and, subject to subsections 107 (3), (4) and (5) of that Act, the order takes effect immediately.

Same

(2) Section 8 of the Act is repealed and the following substituted:

Appointment of investigators

8. (1) The Director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 8.1 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

8.1 (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that a person has contravened or is contravening this Act or the regulations, and,

(a) there are in any building, dwelling, receptacle or place anything relating to the contravention of this Act or the regulations; or

(b) there is information or other evidence relating to the contravention of this Act or the regulations that may be obtained through the use of an investigative technique or procedure or the doing of anything described in the warrant.

Same

(2) Subsections 102 (2) to (13) of the Consumer Protection Act, 2002 apply with necessary modifications to a warrant issued under subsection (1).

Searches in exigent circumstances

8.2 (1) Although a warrant issued under section 8.1 would otherwise be required, an investigator may exercise any of the powers described in subsection 102 (2) of the Consumer Protection Act, 2002 without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Same

(3) Section 13 of the Act is amended by striking out "under section 8" in the portion before clause (a).

Same

(4) Clause 16 (1) (c) of the Act is amended by striking out "section 8" and substituting "section 8.1".

Highway Traffic Act amended

7. Subsection 59 (2) of the Highway Traffic Act is amended by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002".

Licence Appeal Tribunal Act, 1999
amended

8. Section 11 of the Licence Appeal Tribunal Act, 1999 is amended,

(a) by striking out "Business Practices Act";

(b) by striking out "Consumer Protection Act" and substituting "Consumer Protection Act, 2002";

(c) by striking out "Loan Brokers Act, 1994";

(d) by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002";

(e) by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002"; and

(f) by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Loan Brokers Act, 1994 repealed

9. The Loan Brokers Act, 1994, as amended by Statutes of Ontario, 1998, chapter 18, Schedule E, sections 176 to 178, 1999, chapter 12, Schedule G, section 26 and 2001, chapter 9, Schedule D, section 13, is repealed.

Ministry of Consumer and Business Services Act
amended

10. The Ministry of Consumer and Business Services Act is amended by adding the following sections:

Investigations

5.1 (1) The Minister may by written order appoint a person to make an investigation into any matter that relates to an Act that has been assigned to him or her and is prescribed by regulation.

Powers, duties

(2) The person appointed shall report the result of the investigation to the Minister and, for the purposes of the investigation, that person has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Experts

(3) The Minister may appoint an expert,

(a) to examine valuables, documents, records or other things obtained under this section; or

(b) to provide assistance in producing a document or record in readable form from any data storage, processing or retrieval device or system.

Regulations

(4) The Lieutenant Governor in Council may make regulations prescribing Acts for the purpose of subsection (1).

. . . . .

Proof of document

10. Any document made under this Act that purports to be signed by the Minister or Deputy Minister, or a certified copy of the document, is receivable in evidence in any action, prosecution or other proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the Minister or Deputy Minister without proof of the office or signature of the Minister or Deputy Minister.

Mortgage Brokers Act amended

11. (1) Clause 2 (b) of the Mortgage Brokers Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

(2) Subsection 4 (4) of the Act is amended by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002".

Motor Vehicle Dealers Act repealed

12. The Motor Vehicle Dealers Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 92, 1997, chapter 19, section 38, 1997, chapter 35, section 2, 1998, chapter 18, Schedule E, sections 184 to 186, 1999, chapter 12, Schedule G, section 29 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Motor Vehicle Repair Act repealed

13. The Motor Vehicle Repair Act, as amended by Statutes of Ontario, 1994, chapter 27, section 93, 1997, chapter 35, section 3 and 2001, chapter 9, Schedule D, section 13, is repealed.

Personal Property Security Act amended

14. (1) Subsection 14 (2) of the Personal Property Security Act is repealed and the following substituted:

Non-application

(2) Subsection (1) does not apply to an assignment to which section 79 of the Consumer Protection Act, 2002 applies.

(2) Section 73 of the Act is amended by striking out "Consumer Protection Act" wherever it appears and substituting in each case "Consumer Protection Act, 2002".

Prepaid Services Act repealed

15. The Prepaid Services Act, as amended by Statutes of Ontario, 1999, chapter 12, Schedule F, section 33, is repealed.

Real Estate and Business Brokers Act repealed

16. The Real Estate and Business Brokers Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, 1994, chapter 27, section 98, 1996, chapter 19, section 24, 1997, chapter 19, section 41, 1998, chapter 18, Schedule E, sections 203 to 206, 1999, chapter 12, Schedule G, section 33, 2001, chapter 9, Schedule D, sections 13 and 14 and 2002, chapter 8, Schedule I, section 22, is repealed.

Registered Insurance Brokers Act amended

17. Clause 2 (2) (e) of the Registered Insurance Brokers Act is amended by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Retail Sales Tax Act amended

18. Clause 4.2 (5) (a) of the Retail Sales Tax Act, as enacted by the Statutes of Ontario, 1993, chapter 12, section 5, is amended by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002".

Safety and Consumer Statutes Administration Act, 1996
amended

19. The Schedule to the Safety and Consumer Statutes Administration Act, 1996, as amended by the Statutes of Ontario, 1998, chapter 15, Schedule E, section 46 and 2000, chapter 16, section 46, is amended,

(a) by striking out "Motor Vehicle Dealers Act" and substituting "Motor Vehicle Dealers Act, 2002";

(b) by striking out "Real Estate and Business Brokers Act" and substituting "Real Estate and Business Brokers Act, 2002"; and

(c) by striking out "Travel Industry Act" and substituting "Travel Industry Act, 2002".

Toronto Islands Residential Community Stewardship Act, 1993 amended

20. Paragraph 3 of subsection 14 (2) of the Toronto Islands Residential Community Stewardship Act, 1993 is repealed and the following substituted:

3. Real Estate and Business Brokers Act, 2002.

Travel Industry Act repealed

21. The Travel Industry Act, as amended by the Statutes of Ontario, 1994, chapter 27, section 100, 1996, chapter 19, section 25, 1997, chapter 19, section 42, 1998, chapter 18, Schedule E, section 289, 1999, chapter 12, Schedule G, section 34 and 2001, chapter 9, Schedule D, sections 13 and 14, is repealed.

Commencement

22. This Schedule comes into force on a day to be named by proclamation of the Lieutenant Governor.

This reprint of the Bill is marked to indicate the changes that were made in Committee.

Marginal side bars in the outer margin indicate that either a provision has been replaced, a new provision has been added or that there has been a change within a provision in either or both the English and French version of the bill. The changes are indicated by underlines for new text and a strikethrough for deleted text.

______________

EXPLANATORY NOTE

The Bill amends several statutes in relation to consumer protection. Here are some of the principal amendments:

SCHEDULE A
CONSUMER PROTECTION
ACT, 2002

The Schedule enacts the Consumer Protection Act, 2002. The new Act includes the substantive contents of what was the former Consumer Protection Act and also that of the Business Practices Act, the Consumer Protection Bureau Act, the Loan Brokers Act, 1994, the Motor Vehicle Repair Act, the Prepaid Services Act and parts of the Consumer Reporting Act.

The Schedule is divided into eleven Parts.

Part I: Interpretation and Application

The new Act, subject to limited exceptions, applies to all consumer transactions where the consumer or the person with whom the consumer is conducting the transaction is located in Ontario. There is an anti-avoidance provision that allows the substance of a transaction or entity to be examined to determine whether it is covered by the Act, permitting the form to be ignored. Consumer agreements that meet the criteria for more than one type of agreement covered by the Act must comply with the provisions applicable to all the types of agreement for which they meet the criteria, except as the provisions are exempted by regulation. Supplier disclosure under the new Act must be clear, comprehensible and prominent. If a supplier is required to deliver information to a consumer, it must be delivered in a form in which it can be retained by the consumer.

Part II: Consumer Rights and
Warranties

Nothing in the new Act is to be interpreted to limit any right or remedy of a consumer. Specifically, any provision that purports to require that disputes under a consumer agreement must be resolved by arbitration are not applicable to provisions in the new Act that give a consumer a right of action. Similarly, the consumer is given the right to commence or participate in a class proceeding arising from a consumer agreement, despite any provision in the agreement that purports to limit such a right.

Suppliers are deemed to warrant that services are of a reasonably acceptable quality. The implied conditions and warranties that apply to goods because of the Sale of Goods Act are made applicable to goods that are leased or traded and deemed or implied warranties or conditions cannot be negated. If a consumer receives an estimate, suppliers cannot charge consumers an amount that exceeds the estimate by more than 10 per cent. Ambiguities in any consumer agreement provided by the supplier and in required information are to be interpreted in favour of the consumer. A consumer cannot be charged to obtain a right or entitlement to which the consumer is entitled under the Act unless the entitlement is disclosed before the consumer agrees to pay the charge. Except as set out in limited circumstances, including on consent, a supplier cannot require payment for unsolicited goods or services.

Part III: Unfair Practices

Unfair practices include making a false, misleading or deceptive representation, making an unconscionable representation and renegotiating the price charged to a consumer in specified circumstances. Engaging in unfair practices is prohibited. A consumer agreement may be rescinded if it is entered into as the result of unfair practice and a consumer is entitled to any remedy available at law, including damages when an agreement is rescinded. Rescission of an agreement operates to cancel, as if they never existed, the agreement, related agreements, related guarantees and security and related credit agreements.

Part IV: Rights and Obligations Respecting Specific Consumer Agreements

Part IV covers several types of consumer agreements the regulation of which shares certain general characteristics. Future performance agreements, time share agreements, personal development services agreements, internet agreements, direct agreements and remote agreements are all regulated under this Part. In general, such agreements must meet a minimum total potential payment obligation to be regulated and must generally be provided in writing to the consumer. A consumer generally has a cooling-off period after delivery of the agreement to cancel and may generally cancel within one year after delivery of the agreement if the agreement did not meet the prescribed requirements.

Part V: Sectors Where Advanced Fee
Prohibited

In certain sectors, credit repair, loan brokering and the supply of other prescribed goods or services, advance fees are prohibited. Payments cannot be required or accepted until the obligations under the agreement have been performed. Such agreements may be cancelled within 10 days after a written copy of the agreement is delivered to the consumer or within one year if the agreement does not meet the prescribed requirements.

Part VI: Repairs to Motor Vehicles and
Other Goods

This Part regulates repairs to motor vehicles and other prescribed goods. Repairs cannot be undertaken unless the repairer provides the consumer with an estimate. However, a repairer may charge a consumer for work done without an estimate if the consumer declines the offer of an estimate and authorizes a maximum amount that he or she is willing to pay and the cost charged does not exceed that maximum amount. Repairers must tell consumers in advance if a fee is going to be charged for an estimate and cannot charge for an estimate where the work is authorized and carried out unless there has been unreasonable delay in obtaining the authorization.

If an authorization required under this Part is not given in writing, it must be recorded in accordance with the prescribed requirements. Repairers shall post the prescribed signs in accordance with the prescribed requirements. Invoices shall contain the prescribed information and shall be provided to consumers in the prescribed manner. Estimates or charges for work cannot be increased because cost is to be paid directly or indirectly by an insurance company.

There are requirements for returning parts when they are removed during repair and keeping such parts separate. Repairers are deemed to warrant parts and labour for a minimum of 90 days or 5,000 kilometres, whichever comes first, when a vehicle is repaired.

Part VII: Credit Agreements

Except as excluded, credit agreements in which a lender extends credit to a borrower (a consumer who is a party to a credit agreement) are regulated under this Part. Credit on the security of real property is excluded, as are supplier credit agreements if the borrower makes a single payment within a certain period and the borrower pays no interest during that period. Consumers are not liable to make payments on unsolicited credit cards until the card is used and the liability of a consumer for the unauthorized use of a credit card may be limited as prescribed. A borrower under a credit agreement is not liable to pay a lender the cost of borrowing if the lender has not disclosed the required information.

If a borrower is required to purchase insurance, he or she may purchase it from any insurer except that the lender can disapprove, on reasonable grounds, an insurer selected by the borrower. A borrower is permitted to terminate optional services supplied by a lender on 30 days notice. If a lender invites a borrower to defer making a payment, the invitation must disclose whether or not interest will accrue during the deferral period. Default charges are limited to reasonable charges in respect of legal costs incurred in attempting to collect payment, reasonable costs incurred on realizing on security and reasonable costs incurred because a cheque or other instrument has been dishonoured. A borrower is entitled to prepay the full outstanding balance under a credit agreement without penalty or charge.

There are a number of provisions regulating disclosure. Brokerage fees must be disclosed to borrowers as part of the required initial disclosure statement. Such statements must disclose the prescribed information. In addition, there are requirements for subsequent disclosure of changes in interest rates and insufficiency of scheduled payments to cover interest. Monthly statements of account are generally required in credit agreements for open credit.

Lenders' representations in respect of credit agreements must meet prescribed requirements.

When a negotiable instrument given to secure credit is assigned, the required statements and, if there is one, the consumer agreement must be delivered. An assignee has no greater rights and is subject to the same obligations as the person who assigned the credit.

Statements of the cost of borrowing shall be based on an adjusted amount if a consumer agreement allows for adjustment for an allowance for a trade-in. If there is an adjustment, the consumer agreement cannot be adjusted to change the percentage rate of the cost of borrowing, the total number of required instalments or the price.

Part VIII: Leasing

This Part covers consumer agreements for the lease of goods other than a lease in connection with a residential tenancy. It applies to leases of a fixed term of four months or more, leases for an indefinite period that are renewed automatically and residual obligation leases. Lessors are required to deliver disclosure statements before the earlier of the time the lessee enters into the lease and the time the lessee makes any payment in connection with it. The disclosure statement must contain the prescribed information. The maximum amount of compensation that may be charged to a lessee for early termination of a lease may be limited as prescribed. The maximum liability of a lessee at the end of a term of a residual obligation lease must be calculated in a prescribed manner.

Part IX: Procedures for Consumer
Remedies

This Part deals with the cancellation of consumer agreements other than those where the cancellation is being sought because of an unfair practice. Consumer agreements are not binding unless they are made in accordance with this Act and the regulations. The rules around the notice that a consumer must give to seek a remedy are set out including the form of notice, the date of effectiveness of notice and the address to which notice should be sent. If a consumer has a right to cancel an agreement, he or she can do so by giving notice. Cancellation of an agreement operates to cancel, as if they never existed, the consumer agreement, related agreements, related guarantees and security and related credit agreements. If a consumer agreement is cancelled, the supplier must refund payment and return goods delivered on a trade-in or refund an amount equal to the trade-in allowance.

Consumers may request that a credit issuer cancel or reverse a charge where the card was used to pay for a consumer agreement that was cancelled, to make a payment that was received in contravention of this Act or to make a payment that was collected in respect of unsolicited goods or services. A consumer may make such a request after the consumer has given notice of cancellation of the agreement or of a demand for a refund and the supplier has not refunded the payment within the required period. In these circumstances, the credit card issuer must acknowledge receipt of the request and cancel or reverse the charge or, after an investigation, send to the consumer a written notice explaining why the issuer is of the opinion that the consumer is not entitled to cancel the agreement or demand a refund.

If a consumer has a right to an action under this Act, the consumer may commence the action in the Superior Court of Justice. If successful in the action, the court must order, unless it would be inequitable in the circumstances, that the consumer recover the full payment to which he or she is entitled under this Act and the goods delivered on a trade-in or an amount equal to a trade-in allowance. It may also order exemplary or punitive damages or other appropriate relief.

Part X: Powers and Duties of Minister
and Director

The Minister may disseminate information to educate and advise consumers, may provide information on alternative dispute resolution to consumers and may enforce this Act and other legislation for the protection of consumers. To enforce the Act and other legislation to protect consumers, the Minister may enter into agreements with law enforcement agencies and share and exchange information with them. The Director shall maintain a public record of undertakings of voluntary compliance, compliance orders, orders to cease false advertising and of other prescribed documents and information. Both the Minister and the Deputy Minister may delegate their powers and duties under this Act.

Part XI: General

A number of matters are dealt with under this Part. The Ministry may receive complaints and make inquiries. The Director may appoint investigators. With the assistance of a warrant, a search may be undertaken. In exigent circumstances, a search of premises other than premises that are a dwelling may be made without a warrant. The Director may order a person to cease making false, misleading or deceptive statements, which order takes effect immediately but is subject to a right of appeal. The Director may also make freeze orders if it is advisable for the protection of consumers and an investigation has been undertaken, a compliance order has been made or there has been an undertaking of voluntary compliance. The Director may propose to make a compliance order and, if it is in the public interest, may make an order for immediate compliance. Both are subject to appeal with a right to appeal to the Licence Appeal Tribunal. If the Director has made or is considering making an order against a person, the person may enter into an undertaking of voluntary compliance. If the person is not complying with the Act, the Director may apply to the Superior Court of Justice for a compliance order.

A person who fails to comply with an order, direction or other requirement under the Act is guilty of an offence. In addition, the failure to comply or contravention of the listed provisions is also an offence, as is an attempt to commit any of the listed offences. Officers and directors are guilty of an offence if they fail to take reasonable care to prevent a corporation from committing an offence. On conviction, individuals are liable to a $50,000 fine or imprisonment of up to two years less a day and corporations are liable to a fine of no more than $250,000. Restitution and compensation may also be ordered on conviction.

If the payment of a fine is in default for more than 60 days, the Director may disclose the name of the defaulter, the date of the default and the amount of the fine to a consumer reporting agency. If the fine is paid, the Director within 10 days after having notice of the payment shall notify the agency. The Director may also create a lien against the property of a person who has failed to pay a fine. Generally, matters that arise during the course of exercising powers or carrying out duties under the Act are to be kept confidential. This Part allows the Director to issue a certificate certifying as evidence of the facts stated in it. There are extensive regulation making powers.

SCHEDULE B
MOTOR VEHICLE DEALERS
ACT, 2002

The Bill revises and replaces the Motor Vehicle Dealers Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that motor vehicle dealers and salespersons trading in motor vehicles be registered and that salespersons should not trade in motor vehicles on behalf of a motor vehicle dealer unless they are registered to trade on behalf of that dealer. An individual who trades in a motor vehicle on their own account or for a member of their family is exempt from registration if the motor vehicle has been used primarily for personal use.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants. The registrar may inspect the business premises of an applicant for registration. There are powers to inspect registrants and to appoint investigators. Investigators may conduct searches with the assistance of a warrant to investigate breaches of the statute. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee may be established. If these committees are established, registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants where it is advisable for the protection of the customers of the registrant or former registrant. The director may apply to the courts for the appointment of a receiver and manager to take the control of the business of a registrant in certain circumstances.

Motor vehicle dealers are required to ensure that the salespersons that they employ carry out their duties in compliance with the Act. Motor vehicle dealers are required to maintain a trust account.

Falsifying information, the furnishing of false information and false advertising are all prohibited. The registrar may make orders in respect of false advertising and may require that advertising be pre-approved before publication if an order in respect of false advertising has been made. The director may apply for a restraining order if a person is not complying with the Act.

The Bill contains an offence section. A person who contravenes the Act is guilty of an offence and, on conviction, is liable to a fine of up to $50,000 and up to two years imprisonment if the person is an individual and a fine of up to $250,000 if the person is a corporation. If there is a conviction, there may also be an order for restitution or compensation. If a fine is not paid, a lien may be registered against the person's property.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister.

The Motor Vehicle Compensation Fund established under the Act is continued. The Fund is managed by a board of trustees and is supported by levies and payments imposed on registrants. The Fund shall be held in trust for the benefit of customers who are entitled to make a claim against it. The registrar may make arrangements with registrants for the payment of money owed to the Fund and the failure to make payments may result in the registrar refusing to renew the registrant's registration.

The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE C
REAL ESTATE AND BUSINESS
BROKERS ACT, 2002

The Bill revises and replaces the Real Estate and Business Brokers Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that persons trading in real estate be registered as brokerages, brokers or salespersons, subject to certain specified exemptions. The Bill creates the new category of "brokerage" for registration. A brokerage is a business that trades in real estate on behalf of others.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants and the powers to both inspect and investigate are continued from the Act, but are modified to require warrants in all investigations. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee are established and registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants if it is advisable for the protection of the clients of the registrant or former registrant.

Brokerages are required to ensure that the salespersons and brokers they employ carry out their duties in compliance with the statute.

Brokerages are required to maintain trust accounts and unclaimed funds are passed on to the administrative authority and in certain circumstances to the Minister of Finance. The rights of persons who may claim entitlement to such funds are maintained.

There are provisions that are intended to prevent conflicts of interest and unethical behaviour, including restrictions against employing unregistered persons, against salespersons or brokers acting for any brokerage other than the one that employs them and against inducing any party to certain real estate agreements to break the agreement for the purpose of entering another agreement. Providing false information and false advertising are also prohibited.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister. The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE D
TRAVEL INDUSTRY ACT, 2002

The Bill revises and replaces the Travel Industry Act.

The Bill continues the offices of the registrar and director and permits them to be appointed by the board of directors of the administrative authority designated under the Safety and Consumer Statutes Administration Act, 1996 to administer this Act. If there is no administrative authority, the Minister of Consumer and Business Services appoints the director and the Deputy Minister appoints the registrar.

The Bill requires that a person who acts as or holds themself out as a travel agent or travel wholesaler be registered. In order to bring an action for commission or other remuneration for services in connection with the sale of travel services, the person must be registered or the action may be stayed. Registrations are not transferable.

There are provisions in the Bill that permit the registrar to deal with complaints made about registrants. There are powers to inspect registrants and to conduct investigations. Investigators are authorized to search premises with a warrant. There may be a search of a premise, other than a premise used as a dwelling, without a warrant in exigent circumstances. In addition, a discipline committee and an appeal committee may be established and registrants who have been found to have breached their code of ethics before a committee may be fined up to $25,000 or a lesser prescribed amount. The director may also freeze the assets of registrants and former registrants where it is advisable for the protection of the customers of the registrant or former registrant. The director may apply to the courts for the appointment of a receiver and manager to take the control of the business of a registrant in certain circumstances.

Falsifying information, the furnishing of false information and false advertising are all prohibited. The registrar may make orders in respect of false advertising and may require that advertising be pre-approved before publication if an order in respect of false advertising has been made. The director may apply for a restraining order if a person is not complying with the Act.

The Bill contains an offence section. A person who contravenes the Act is guilty of an offence and, on conviction, is liable to a fine of up to $50,000 and up to two years imprisonment if the person is an individual and a fine of up to $250,000 if the person is a corporation. If there is a conviction, there may also be an order for restitution or compensation. If a fine is not paid, a lien may be registered against the person's property.

The Bill contains general provisions dealing with such matters as the preservation of secrecy, service of documents and the setting of fees by the Minister.

The Travel Industry Compensation Fund established under the Act is continued. The provisions relating to the administration and management of the Fund will be set out in the regulations.

The Minister may make regulations establishing a code of ethics, governing the jurisdiction of committees and in areas prescribed by the Lieutenant Governor in Council. The Lieutenant Governor in Council may make regulations dealing with a broad range of matters to regulate the industry.

SCHEDULE E
AMENDMENTS TO OTHER ACTS

The Schedule contains amendments that are related to the enactments of Schedules A, B, C and D.

The Schedule repeals the Business Practices Act, the Consumer Protection Act, the Consumer Protection Bureau Act, the Loan Brokers Act, 1994, the Motor Vehicle Dealers Act, the Motor Vehicle Repair Act, the Prepaid Services Act, the Real Estate and Business Brokers Act and the Travel Industry Act.

Amendments consequential to the enactments of the other Schedules are made to the Collection Agencies Act, the Consumer Reporting Act, the Discriminatory Business Practices Act, the Licence Appeal Tribunal Act, 1999, the Mortgage Brokers Act, the Registered Insurance Brokers Act, the Safety and Consumer Statutes Administration Act, 1996 and the Toronto Islands Residential Community Stewardship Act, 1993.

The Ministry of Consumer and Business Services Act is amended to permit the Minister to appoint investigators to investigate matters that relate to an Act that has been assigned to the Minister, to assign powers and duties to investigators and to permit the Minister to appoint experts to assist in the investigation. The Act is also amended to allow documents made under the Act and signed by the Minister or Deputy Minister to be receivable in evidence without having to prove the office or signature of the Minister or Deputy Minister.

[37] Bill 180 Original (PDF)

Bill 180 2002

An Act to enact,
amend or revise various Acts
related to consumer protection

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Consumer Protection Act, 2002 enacted

1. Schedule A to this Act is hereby enacted.

Motor Vehicle Dealers Act, 2002 enacted

2. Schedule B to this Act is hereby enacted.

Real Estate and Business Brokers Act, 2002 enacted

3. Schedule C to this Act is hereby enacted.

Travel Industry Act, 2002 enacted

4. Schedule D to this Act is hereby enacted.

Amendments to other Acts

5. Schedule E to this Act is hereby enacted.

Commencement

6. (1) Subject to subsections (2) and (3), this Act comes into force on the day it receives Royal Assent.

Same

(2) The Schedules to this Act come into force as provided in the commencement section at the end of each of the Schedules.

Same

(3) If a Schedule provides that any provisions are to come into force on a day to be named by proclamation of the Lieutenant Governor, a proclamation may apply to one or more of those provisions, and proclamations may be issued at different times with respect to any of those provisions.

Short title

7. The short title of this Act is the Consumer Protection Statute Law Amendment Act, 2002.

SCHEDULE A
CONSUMER PROTECTION ACT, 2002

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

2.

3.

4.

5.

Interpretation

Application

Anti-avoidance

Consumer agreements

Disclosure of information

PART II
CONSUMER RIGHTS AND
WARRANTIES

6.

7.

8.

9.

10.

11.

12.

13.

Rights reserved

No waiver of substantial and procedural rights

Class proceedings

Quality of services

Estimates

Ambiguities to benefit consumer

Charging consumers for assistance

Unsolicited goods or services: relief from legal
obligations

PART III
UNFAIR PRACTICES

14.

15.

16.

17.

18.

19.

False, misleading or deceptive representation

Unconscionable representation

Renegotiation of price

Unfair practices prohibited

Rescinding agreement

Transition

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER
AGREEMENTS

Definitions and Application

20.

Interpretation

Future Performance Agreements

21.

22.

23.

24.

25.

26.

Application of sections

Requirements for future performance agreements

Cancelling future performance agreements

Rights in other goods not enforceable

No repossession after two-thirds paid except by leave of court

Late delivery

Time Share Agreements

27.

28.

Requirements for time share agreements

Cancellation: cooling-off period

Personal Development Services

29.

30.

31.

32.

33.

34.

35.

36.

Application

Requirements for personal development services agreements

Agreements for one year only

Only one agreement

Initiation fee

Instalment plans

Cancellation: cooling-off period

Trustee for payment for unavailable services

Internet Agreements

37.

38.

39.

40.

Application

Disclosure of information

Copy of internet agreement

Cancellation of internet agreement

Direct Agreements

41.

42.

43.

Application

Requirements for direct agreements

Cancellation: cooling-off period

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

44.

45.

46.

47.

48.

49.

50.

Definitions

Requirements for consumer agreements

Advance payments prohibited

Cancellation: cooling-off period

Officers, directors

Prohibited representations

Transition

PART VI
REPAIRS TO
MOTOR VEHICLES AND
OTHER GOODS

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

Definitions

Estimates

Estimate fee

Authorization required

Authorization not in writing

Posting signs

Return of parts

Invoice

Warranty for vehicles

Consistent cost

Transition

PART VII
CREDIT AGREEMENTS

General

62.

63.

64.

65.

66.

67.

68.

69.

70.

Definitions

Non-application of Part

Agreement for credit card

Limiting liability for unauthorized charges

Consequence of non-disclosure

Correcting errors

Required insurance

Termination of optional services

Deferral of payments

71.

72.

Default charges

Prepayment

Disclosure

73.

74.

75.

76.

77.

Representations

Disclosure of brokerage fee

Initial disclosure statement

Subsequent disclosure: fixed credit

Subsequent disclosure: open credit

Assignment of Security for Credit

78.

79.

80.

81.

Assignment of negotiable instrument

Obligations of assignee of lender

Order to pay indemnity

Allowance for trade-in subject to adjustment

PART VIII
LEASING

82.

83.

84.

85.

86.

Definitions

Application of Part

Advertising

Disclosure statement

Compensation re: termination of lease

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

87.

88.

89.

90.

91.

92.

93.

94.

95.

96.

Application

Form of consumer notice

Cancellation

Effect of cancellation

Obligations on cancellation

Title to goods under trade-in arrangement

Illegal payments

Consumer's recourse re: credit card charges

Action in Superior Court of Justice

Waiver of notice

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

97.

98.

99.

Powers of Minister

Duties of Director

Fees

PART XI
GENERAL

100.

101.

102.

103.

104.

105.

106.

107.

108.

109.

110.

111.

112.

113.

114.

115.

116.

117.

118.

Ministry receives complaints and makes inquiries

Appointment of investigators

Search warrant

Searches in exigent circumstances

False, misleading or deceptive representation

Freeze order

Compliance order

Order for immediate compliance

Appeal

Undertaking of voluntary compliance

Restraining orders

Offences

Orders for compensation, restitution

Default in payment of fines

Liens and charges

Matters confidential

Service by the Director of notice or order

Certificate as evidence

Lieutenant Governor in Council regulations: general

PART XII
COMMENCEMENT AND SHORT TITLE

119.

120.

Commencement

Short Title

______________

PART I
INTERPRETATION AND APPLICATION

Interpretation

1. In this Act,

"consumer" means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes; ("consommateur")

"consumer agreement" means an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment; ("convention de consommation")

"consumer transaction" means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement; ("opération de consommation")

"credit card" means a card or device under which a borrower can obtain advances under a credit agreement, as defined in Part VII, for open credit; ("carte de crédit")

"Director" means the person designated as the Director under the Ministry of Consumer and Business Services Act; ("directeur")

"future performance agreement" means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement; ("convention à exécution différée")

"goods" means personal property, including personal property that becomes a fixture; ("marchandises")

"initiation fee" means a fee in addition to an annual membership fee; ("droit d'entrée")

"loan broker" means,

(a) a supplier of loan brokering, or

(b) a person who holds themself out to be a person described in clause (a); ("courtier en prêts")

"loan brokering" means services or goods that are intended to assist a consumer in obtaining a loan of money, including obtaining a loan of money from the loan broker's own funds; ("courtage en prêts")

"loan of money" includes credit that is made available to the consumer; ("prêt d'argent")

"Minister" means the Minister of Consumer and Business Services or such other member of the Executive Council to whom the administration of this Act may be assigned under the Executive Council Act; ("ministre")

"Ministry" means the Ministry of Consumer and Business Services; ("ministère")

"officer" includes the chair and any vice-chair of the board of directors, the president and any vice-president, the secretary and assistant secretary, the treasurer and assistant treasurer and the general manager and assistant general manager of the corporation or a partner or general manager and assistant general manager of a partnership, any other individual designated as an officer by by-law or resolution or any other individual who performs functions for the corporation normally performed by an individual occupying such office; ("dirigeant")

"open credit" means credit under a credit agreement, as defined in Part VII, that,

(a) anticipates multiple advances to be made as requested by the borrower in accordance with the agreement, and

(b) does not define the total amount to be advanced to the borrower under the agreement, although it may impose a credit limit; ("crédit en blanc")

"payment" means consideration of any kind, including an initiation fee; ("paiement")

"prescribed" means prescribed by regulations made under this Act; ("prescrit")

"representation" means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) made for the purpose of receiving payment for goods or services supplied or purporting to be supplied to consumers; ("assertion")

"services" means anything other than goods, including any service, right, entitlement or benefit; ("services")

"supplier" means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier; ("fournisseur")

"trade-in allowance" means the greater of,

(a) the price or value of the consumer's goods or services as set out in a trade-in arrangement, and

(b) the market value of the consumer's goods or services when taken in trade under a trade-in arrangement; ("valeur de reprise")

"trade-in arrangement" means an arrangement under which a consumer agrees to sell his or her own goods or services to the supplier and the supplier accepts the goods or services as all or part of the consideration for supplying goods or services; ("convention de reprise")

"Tribunal" means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or such other tribunal as may be prescribed; ("Tribunal")

"year" means a period of 365 consecutive days or, if the period includes February 29, 366 consecutive days. ("année")

Application

2. (1) Subject to this section, this Act applies in respect of all consumer transactions if the consumer or the person engaging in the transaction with the consumer is located in Ontario when the transaction takes place.

Exceptions

(2) This Act does not apply in respect of,

(a) consumer transactions regulated under the Securities Act;

(b) financial services related to investment products or income securities;

(c) financial products or services regulated under the Insurance Act, the Credit Unions and Caisses Populaires Act, 1994, the Mortgage Brokers Act or the Loan and Trust Corporations Act;

(d) consumer transactions regulated under the Commodity Futures Act;

(e) prescribed professional services that are regulated under a statute of Ontario;

(f) consumer transactions for the purchase, sale or lease of real property, except transactions with respect to time share agreements as defined in section 20; and

(g) consumer transactions regulated under the Tenant Protection Act, 1997.

Same

(3) This Act does not apply to the supply of a public utility or to any charge for the transmission, distribution or storage of gas as defined in the Ontario Energy Board Act, 1998 if such charge has been approved by the Ontario Energy Board.

Marketers of gas, retailers of electricity

(4) Despite subsection (3), this Act applies to a transaction with,

(a) a gas marketer who is a supplier; and

(b) a retailer of electricity who is a supplier.

Definitions

(5) In this section,

"gas marketer" means a gas marketer as defined in Part IV of the Ontario Energy Board Act, 1998; ("agent de commercialisation de gaz")

"public utility" means water, artificial or natural gas, electrical power or energy, steam or hot water; ("service public")

"retailer of electricity" means a retailer as defined in the Electricity Act, 1998. ("détaillant en électricité")

Anti-avoidance

3. In determining whether this Act applies to an entity or transaction, a court or other tribunal shall consider the real substance of the entity or transaction and in so doing may disregard the outward form.

Consumer agreements

4. A consumer agreement that meets the criteria of more than one type of agreement to which this Act applies shall comply with the provisions that apply to each type of agreement for which it meets the criteria except where the application of the provisions is excluded as prescribed.

Disclosure of information

5. (1) If a supplier is required to disclose information under this Act, the disclosure must be clear, comprehensible and prominent.

Delivery of information

(2) If a supplier is required to deliver information to a consumer under this Act, the information must, in addition to satisfying the requirements in subsection (1), be delivered in a form in which it can be retained by the consumer.

PART II
CONSUMER RIGHTS
AND WARRANTIES

Rights reserved

6. Nothing in this Act shall be interpreted to limit any right or remedy that a consumer may have in law.

No waiver of substantive and procedural rights

7. (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

Limitation on effect of term requiring arbitration

(2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

Procedure to resolve dispute

(3) Despite subsections (1) and (2), after a dispute over which a consumer may commence an action in the Superior Court of Justice arises, the consumer, the supplier and any other person involved in the dispute may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(4) A settlement or decision that results from the procedure agreed to under subsection (3) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(5) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (2) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Class proceedings

8. (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding.

Procedure to resolve dispute

(2) After a dispute that may result in a class proceeding arises, the consumer, the supplier and any other person involved in it may agree to resolve the dispute using any procedure that is available in law.

Settlements or decisions

(3) A settlement or decision that results from the procedure agreed to under subsection (2) is as binding on the parties as such a settlement or decision would be if it were reached in respect of a dispute concerning an agreement to which this Act does not apply.

Non-application of Arbitration Act, 1991

(4) Subsection 7 (1) of the Arbitration Act, 1991 does not apply in respect of any proceeding to which subsection (1) applies unless, after the dispute arises, the consumer agrees to submit the dispute to arbitration.

Quality of services

9. (1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of a reasonably acceptable quality.

Quality of goods

(2) The implied conditions and warranties applying to the sale of goods by virtue of the Sale of Goods Act are deemed to apply with necessary modifications to goods that are leased or traded or otherwise supplied under a consumer agreement.

Same

(3) Any term or acknowledgement, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale
of Goods Act
or any deemed condition or warranty under this Act is void.

Same

(4) If a term or acknowledgement referenced in subsection (3) is a term of the agreement, it is severable from the agreement and shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

Estimates

10. (1) If a consumer agreement includes an estimate, the supplier shall not charge the consumer an amount that exceeds the estimate by more than 10 per cent.

Performance of consumer agreement

(2) If a supplier charges an amount that exceeds the estimate by more than 10 per cent, the consumer may require that the supplier provide the goods or services at the estimated price.

Subsequent agreement

(3) Nothing in this section prevents a consumer and a supplier from agreeing to amend the estimate or price in a consumer agreement, if the consumer requires additional or different goods or services.

Ambiguities to benefit consumer

11. Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer.

Charging consumers for assistance

12. No person shall charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act, unless, before the consumer agrees to pay the charge, the person discloses the entitlement's existence and direct availability to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly.

Unsolicited goods or services:
relief from legal obligations

13. (1) Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal.

No payment for unsolicited goods or services

(2) No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft.

Request not inferred

(3) A request for goods or services shall not be inferred solely on the basis of payment, inaction or the passing of time.

Material change deemed unsolicited

(4) If a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in such goods or services, the goods or services shall be deemed 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.

Form of consent

(5) 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.

Demand

(6) If a supplier has received a payment in respect of unsolicited goods or services, the consumer who made the payment may demand a refund of the payment in accordance with section 88 within one year after having made the payment.

Refund

(7) A supplier who receives a demand for a refund under subsection (6) shall refund the payment within the prescribed period of time.

Consumer may commence action

(8) The consumer who made the payment may commence an action to recover the payment in accordance with section 95.

Definition

(9) In this section,

"unsolicited goods or services" means,

(a) goods that are supplied to a consumer who did not request them but does not include,

(i) goods that the recipient knows or ought to know are intended for another person,

(ii) a change to periodically supplied goods, if the change in goods is not a material change, or

(iii) goods supplied under a written future performance agreement that provides for the periodic supply of goods to the recipient without further solicitation, or

(b) services that are supplied to a consumer who did not request them but does not include,

(i) services that were intended for another person from the time the recipient knew or ought to have known that they were so intended,

(ii) a change to ongoing or periodic services that are being supplied, if the change in the services is not a material change, or

(iii) services supplied under a written future performance agreement that provides for the ongoing or periodic supply of services to the recipient without further solicitation.

PART III
UNFAIR PRACTICES

False, misleading or deceptive representation

14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.

5. A representation that the goods have been used to an extent that is materially different from the fact.

6. A representation that the goods or services are available for a reason that does not exist.

7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.

8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.

11. A representation that a specific price advantage exists, if it does not.

12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.

13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.

14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.

16. A representation that misrepresents the purpose of any charge or proposed charge.

17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.

Unconscionable representation

15. (1) It is an unfair practice to make an unconscionable representation.

Same

(2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person's employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer;

(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.

Renegotiation of price

16. It is an unfair practice for a person to use his, her or its custody or control of a consumer's goods to pressure the consumer into renegotiating the terms of a consumer transaction.

Unfair practices prohibited

17. (1) No person shall engage in an unfair practice.

One act deemed practice

(2) A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice.

Advertising excepted

(3) It is not an unfair practice for a person, on behalf of another person, to print, publish, distribute, broadcast or telecast a representation that the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business.

Rescinding agreement

18. (1) Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.

Remedy if rescission not possible

(2) A consumer is entitled to recover the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to damages, or both, if rescission of the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services is no longer possible; or

(b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value.

Notice

(3) A consumer must give notice within one year after entering into the agreement if,

(a) the consumer seeks to rescind an agreement under subsection (1); or

(b) the consumer seeks recovery under subsection (2), if rescission is not possible.

Form of notice

(4) The consumer may express notice in any way as long as it indicates the intention of the consumer to rescind the agreement or to seek recovery where rescission is not possible and the reasons for so doing and the notice meets any requirements that may be prescribed.

Delivery of notice

(5) Notice may be delivered by any means.

When notice given

(6) If notice is delivered other than by personal service, the notice shall be deemed to have been given when sent.

Address

(7) The consumer may send or deliver the notice to the person with whom the consumer contracted at the address set out in the agreement or, if the consumer did not receive a written copy of the agreement or the address of the person was not set out in the agreement, the consumer may send or deliver the notice,

(a) to any address of the person on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the person known by the consumer.

Commencement of an action

(8) If a consumer has delivered notice and has not received a satisfactory response within the prescribed period, the consumer may commence an action.

Same

(9) If a consumer has a right to commence an action under this section, the consumer may commence the action in the Superior Court of Justice.

Evidence

(10) In the trial of an issue under this section, oral evidence respecting an unfair practice is admissible despite the existence of a written agreement and despite the fact that the evidence pertains to a representation in respect of a term, condition or undertaking that is or is not provided for in the agreement.

Exemplary damages

(11) A court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section.

Liability

(12) Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the consumer is entitled under this section.

Limited liability of assignee

(13) If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment under such an agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the consumer.

Effect of rescission

(14) When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel, as if they never existed,

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended, arranged or facilitated by the person with whom the consumer reached the agreement, or

(ii) otherwise related to the agreement.

Waiver of notice

(15) If a consumer is required to give notice under this Part in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

Transition

19. (1) This Part applies to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Business Practices Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to consumer transactions that occurred before its repeal.

PART IV
RIGHTS AND OBLIGATIONS
RESPECTING SPECIFIC CONSUMER AGREEMENTS

Definitions and Application

Interpretation

20. (1) In this Part,

"direct agreement" means a consumer agreement that is negotiated or concluded in person at a place other than,

(a) at the supplier's place of business, or

(b) at a market place, an auction, trade fair, agricultural fair or exhibition; ("convention directe")

"internet" means the decentralized global network connecting networks of computers and similar devices to each other for the electronic exchange of information using standardized communication protocols; ("Internet")

"internet agreement" means a consumer agreement formed by text-based internet communications; ("convention électronique")

"membership fee" means the amount payable by a consumer for personal development services; ("droit d'adhésion")

"personal development services" means services provided for personal development and any goods that are incidentally provided in addition to the provision of the services and includes facilities provided for, or instruction on,

(a) health, fitness, diet or matters of a similar nature,

(b) modelling and talent, including photo shoots, or matters of a similar nature,

(c) martial arts, sports, dance or similar activities, and

(d) other matters as may be prescribed; ("services de perfectionnement personnel")

"time share agreement" means a consumer agreement by which a consumer,

(a) acquires the right to use property as part of a plan that provides for the use of the property to circulate periodically among persons participating in the plan, whether or not the property is located in Ontario, or

(b) is provided with access to discounts or benefits for the future provision of transportation, accommodation or other goods or services related to travel. ("convention de multipropriété")

Limitations on cancellation

(2) Despite section 90, in the prescribed circumstances, the effect of cancellation of a consumer agreement to which this Part applies by a consumer may be subject to such limitations as may be prescribed.

Future Performance Agreements

Application of sections

21. (1) Sections 22 to 26 apply to future performance agreements if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Exception

(2) Sections 22 to 26 do not apply to agreements that are future performance agreements solely because of an open credit arrangement.

Transition

(3) Sections 22 to 26 apply to future performance agreements entered into on or after the day this section is proclaimed in force.

Same

(4) The Consumer Protection Act, as it existed immediately before its repeal under the Consumer Protection
Statute Law Amendment Act, 2002
, continues to apply to executory contracts entered into before its repeal.

Requirements for future performance agreements

22. Every future performance agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancelling future performance agreements

23. A consumer may cancel a future performance agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements required by section 22.

Rights in other goods not enforceable

24. Any provision in any future performance agreement or in any security agreement incidental to such an agreement under which the supplier may acquire title to, possession of or any rights in any goods of the consumer, other than the goods passing to the consumer under the agreement, is not enforceable.

No repossession after two-thirds paid except by leave of court

25. (1) Where a consumer under a future performance agreement has paid two-thirds or more of his or her payment obligation as fixed by the agreement, any provision in the agreement, or in any security agreement incidental to the agreement, under which the supplier may retake possession of or resell the goods or services upon default in payment by the consumer is not enforceable except by leave obtained from the Superior Court of Justice.

Powers of court

(2) Upon an application for leave under subsection (1), the court may, in its discretion, grant leave to the supplier or refuse leave or grant leave upon such terms and conditions as the court considers advisable.

Late delivery

26. (1) A consumer may cancel a future performance agreement at any time before delivery under the agreement or the commencement of performance under the agreement if the supplier,

(a) does not make delivery within 30 days after the delivery date specified in the agreement or an amended delivery date agreed to by the consumer in writing; or

(b) does not begin performance of his, her or its obligations within 30 days after the commencement date specified in the agreement or an amended commencement date agreed to by the consumer in writing.

Delivery or commencement date not specified

(2) If the delivery date or commencement date is not specified in the future performance agreement, a consumer may cancel the agreement at any time before delivery or commencement if the supplier does not deliver or commence performance within 30 days after the date the agreement is entered into.

Forgiveness of failure

(3) If, after the period in subsection (1) or (2) has expired, the consumer agrees to accept delivery or authorize commencement, the consumer may not cancel the agreement under this section.

Deemed delivery or performance

(4) For the purposes of subsections (1) and (2), a supplier is considered to have delivered or commenced performance under a future performance agreement if,

(a) delivery was attempted but was refused by the consumer at the time that delivery was attempted or delivery was attempted but not made because no person was available to accept delivery for the consumer on the day for which reasonable notice was given to the consumer that there was to be delivery; or

(b) commencement was attempted but was refused by the consumer at the time that commencement was attempted or commencement was attempted but did not occur because no person was available to enable commencement on the day for which reasonable notice was given to the consumer that commencement was to occur.

Time Share Agreements

Requirements for time share agreements

27. Every time share agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

28. (1) A consumer may, without any reason, cancel a time share agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement required under section 27.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a time share agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 27.

Personal Development Services

Application

29. (1) Sections 30 to 36 apply in respect of personal development services or proposed personal development services for which,

(a) payment in advance is required; and

(b) the consumer's total potential payment obligation, excluding cost of borrowing, exceeds a prescribed amount.

Exceptions

(2) Sections 30 to 36 do not apply to personal development services that are provided,

(a) on a non-profit or co-operative basis;

(b) by a private club primarily owned by its members;

(c) as an incidental part of the goods or services that are being supplied to the consumer;

(d) by a supplier funded or run by a charitable or municipal organization or by the Province of Ontario or any of its agencies; or

(e) by a golf club.

Transition

(3) Sections 30 to 36 do not apply to a personal development services agreement in existence before this section is proclaimed in force but do apply if a pre-existing agreement is extended or renewed after this section is proclaimed in force.

Same

(4) Agreements that are in existence before sections 30 to 36 are proclaimed in force are governed by the Prepaid Services Act as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002.

Requirements for personal development services
agreements

30. (1) Every personal development services agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Payments not required or accepted

(2) No supplier shall require or accept payment for personal development services from a consumer with whom the supplier does not have an agreement that meets the requirements established under subsection (1).

Agreements for one year only

31. (1) No personal development services agreement may be made for a term longer than one year after the day that all the services are made available to the consumer.

Deemed separate agreement

(2) Any personal development services agreement that provides for a renewal or an extension of the agreement beyond one year shall be deemed to create a separate agreement for each renewal or extension of one year or less.

Renewal provision

(3) A personal development services agreement that provides for the renewal or extension of the agreement is not valid unless the supplier complies with the prescribed requirements.

Deemed non-renewal of agreement

(4) A personal development services agreement that provides for a renewal or extension of the agreement shall be deemed not to be renewed or extended if the consumer notifies the supplier, before the time for renewal or extension, that the consumer does not want to renew or extend.

Monthly renewals

(5) Subsections (2) and (3) do not apply to an agreement providing for successive monthly renewals if the consumer has the option of terminating on one month's notice or less.

Only one agreement

32. (1) No supplier shall enter into a new agreement for personal development services with a consumer with whom the supplier has an existing agreement for personal development services and any such new agreement is void unless the new agreement is for personal development services that are distinctly different from the services provided under the existing agreement.

Same

(2) For the purposes of subsection (1), a different term or a different commencement date does not constitute a distinct difference in the personal development services to be provided.

Renewals exempted

(3) Nothing in this section prevents a personal development services agreement from being renewed during the term of the agreement provided that the renewal meets the requirements under section 31.

Initiation fee

33. No supplier of personal development services shall,

(a) charge a consumer more than one initiation fee; or

(b) charge an initiation fee that is greater than twice the annual membership fee.

Instalment plans

34. (1) Every supplier of personal development services shall make available to consumers at least one plan for instalment payments of membership fees and initiation fees, if applicable, that allow consumers to make equal monthly payments over the term of the personal development services agreement.

Same

(2) No supplier shall provide an instalment payment plan through which the total amount paid by instalments exceeds the membership or initiation fee, if applicable, by more than 25 per cent.

Cancellation: cooling-off period

35. (1) A consumer may, without any reason, cancel a personal development services agreement at any time within 10 days after the later of receiving the written copy of the agreement mentioned in subsection 30 (1) and the day all the services are available.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a personal development services agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 30.

Trustee for payment for unavailable services

36. (1) No supplier shall receive payment from a consumer for personal development services that are not available at the time the payment is made except if the payment is made through a trust corporation registered under the Loan and Trust Corporations Act that has agreed to act as a trustee for the payment.

Exception

(2) Subsection (1) does not apply when one of the services that is not available is the use of a facility and the consumer has agreed in writing to use another facility provided by the supplier until the facility contracted for is available.

Facility not available

(3) If a facility is not available for use on the day specified in the agreement, the trustee shall refund all payment received from the consumer unless the consumer agrees in writing to permit the trustee to retain the payment.

Extension

(4) No permission given under subsection (3) applies for longer than 90 days but a subsequent permission may be given on the expiration of a permission.

Duties of trustee

(5) Where a supplier has a trustee under subsection (1),

(a) any notice to the trustee shall be deemed to be notice to the supplier; and

(b) any money payable by the supplier is payable by the trustee to the extent that the trustee holds sufficient trust funds for that purpose.

Same

(6) Every trustee under subsection (1) shall, upon receiving any payment from a consumer, provide the consumer with written confirmation of receipt of the payment and of the fact that the payment will be dealt with in accordance with sections 30 to 35 and with this section.

Same

(7) No trustee shall release to a supplier funds received from a consumer until the personal development services are available.

Same

(8) The trustee shall release the funds held under this section to the consumer if the consumer cancels the personal development services agreement in accordance with this Act.

Internet Agreements

Application

37. Sections 38 to 40 apply to an internet agreement if the consumer's total potential payment obligation under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Disclosure of information

38. (1) Before a consumer enters into an internet agreement, the supplier shall disclose the prescribed information to the consumer.

Express opportunity to accept or decline agreement

(2) The supplier shall provide the consumer with an express opportunity to accept or decline the agreement and to correct errors immediately before entering into it.

Manner of disclosure

(3) In addition to the requirements set out in section 5, disclosure under this section shall be accessible and shall be available in a manner that ensures that,

(a) the consumer has accessed the information; and

(b) the consumer is able to retain and print the information.

Copy of internet agreement

39. (1) A supplier shall deliver to a consumer who enters into an internet agreement a copy of the agreement in writing within the prescribed period after the consumer enters into the agreement.

Content of internet agreement

(2) The copy of the internet agreement shall include such information as may be prescribed.

Deemed supply of internet agreement

(3) For the purposes of subsection (1), a supplier is considered to have delivered a copy of the internet agreement to the consumer if the copy is delivered in the prescribed manner.

Cancellation of internet agreement

40. (1) A consumer may cancel an internet agreement at any time from the date the agreement is entered into until seven days after the consumer receives a copy of the agreement if,

(a) the supplier did not disclose to the consumer the information required under subsection 38 (1); or

(b) the supplier did not provide to the consumer an express opportunity to accept or decline the agreement or to correct errors immediately before entering into it.

Same

(2) A consumer may cancel an internet agreement within 30 days after the date the agreement is entered into, if the supplier does not provide the consumer with a copy of the agreement pursuant to section 39.

Direct Agreements

Application

41. (1) Sections 42 and 43 apply to direct agreements if the consumer's total potential payment obligations under the agreement, excluding the cost of borrowing, exceeds a prescribed amount.

Transition

(2) Sections 42 and 43 apply to direct agreements entered into on or after the day this section is proclaimed in force.

Same

(3) The Consumer Protection Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to direct sales contracts entered into before its repeal.

Requirements for direct agreements

42. Every direct agreement shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Cancellation: cooling-off period

43. (1) A consumer may, without any reason, cancel a direct agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement required under section 42.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer may cancel a direct agreement within one year after the date of entering into the agreement if the consumer does not receive a copy of the agreement that meets the requirements under section 42.

PART V
SECTORS WHERE
ADVANCE FEE PROHIBITED

Definitions

44. In this Part,

"consumer report", "credit information", "file" and "personal information" each have the same meaning as in section 1 of the Consumer Reporting Act; ("rapport sur le consommateur", "renseignements sur la solvabilité", "dossier", "renseignements personnels")

"credit repair" means services or goods that are intended to improve a consumer report, credit information, file or personal information, including a credit record, credit history or credit rating; ("redressement de crédit")

"credit repairer" means,

(a) a supplier of credit repair, or

(b) a person who holds themself out as a person described in clause (a); ("redresseur de crédit")

"regulated operator" means a person who is a credit repairer, a loan broker or a supplier who supplies such other goods or services as may be prescribed. ("exploitant réglementé")

Requirements for consumer agreements

45. Every consumer agreement for loan brokering, credit repair or for the supply of such other goods or services as may be prescribed shall be in writing, shall be delivered to the consumer and shall be made in accordance with the prescribed requirements.

Advance payments prohibited

46. (1) No regulated operator shall require or accept any payment or any security for a payment, directly or indirectly, from or on behalf of a consumer unless and until,

(a) in respect of loan brokering, the consumer receives the loan of money that the loan broker has assisted to arrange;

(b) in respect of credit repair, the credit repairer causes a material improvement to the consumer report, credit information, file, personal information, credit record, credit history or credit rating of the consumer; or

(c) in respect of the supply of such other goods or services as may be prescribed, the prescribed requirements are met.

Security arrangement void

(2) Every arrangement by which a regulated operator takes security in contravention of subsection (1) is void.

Cancellation: cooling-off period

47. (1) A consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may, without any reason, cancel the agreement at any time from the date of entering into the agreement until 10 days after receiving the written copy of the agreement required under section 45.

Cancellation: failure to meet requirements

(2) In addition to the right under subsection (1), a consumer who is a party to an agreement for loan brokering, credit repair or the supply of such goods and services as may be prescribed may cancel the agreement within one year after the date of entering into it if the consumer does not receive a copy of the agreement that meets the requirements under section 45.

Officers, directors

48. The officers and directors of a regulated operator that is a corporation are jointly and severally liable for any remedy in respect of which a person is entitled to commence a proceeding against the operator.

Prohibited representations

49. A regulated operator shall not communicate or cause to be communicated any representation that is prescribed as a prohibited representation.

Transition

50. (1) Sections 44 to 49 apply to consumer transactions that occur on or after the day this section is proclaimed in force.

Same

(2) The Loan Brokers Act, 1994, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, continues to apply to all agreements to assist a consumer in obtaining a loan of money entered into before its repeal.

Same

(3) Sections 13.1 to 13.8 of the Consumer Reporting Act, as they existed immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to all consumer transactions that occurred before their repeal.

PART VI
REPAIRS TO MOTOR VEHICLES
AND OTHER GOODS

Definitions

51. In this Part,

"estimate" means an estimate of the total cost of work on and repairs to the goods being repaired; ("devis")

"repairer" means a supplier who works on or repairs vehicles or other prescribed goods; ("réparateur")

"vehicle" means a motor vehicle as defined in the Highway Traffic Act. ("véhicule")

Estimates

52. (1) No repairer shall charge a consumer for any work or repairs unless the repairer first gives the consumer an estimate that meets the prescribed requirements.

Same

(2) Despite subsection (1), a repairer may charge for work or repairs without giving an estimate if,

(a) the repairer offers to give the consumer an estimate and the consumer declines the offer of an estimate;

(b) the consumer specifically authorizes the maximum amount that he or she will pay the repairer to make the repairs or do the work; and

(c) the cost charged for the work or repairs does not exceed the maximum amount authorized by the consumer.

Estimate fee

53. (1) Subject to subsection (3), no repairer shall charge a fee for an estimate unless the consumer is told in advance that a fee will be charged and the amount of the fee.

Same

(2) A fee for an estimate shall be deemed to include the cost of diagnostic time, the cost of reassembling the goods and the cost of parts that will be damaged and must be replaced when reassembling if the work or repairs are not authorized by the consumer.

Same

(3) A repairer shall not charge a fee for an estimate if the work or repairs in question are authorized and carried out.

Same

(4) Despite subsection (3), a repairer may charge a fee for an estimate if the repairer is unable to obtain, without unreasonable delay, authorization to proceed with the work or repairs and the goods are reassembled before being worked on or repaired so that the goods can be moved in order to free repair space.

Authorization required

54. No repairer shall charge for any work or repairs unless the consumer authorizes the work or repairs.

Authorization not in writing

55. If an authorization required by section 52, 53 or 54 is not given in writing, the authorization is not effective unless it is recorded in a manner that meets the prescribed requirements.

Posting signs

56. A repairer shall post the prescribed signs in accordance with the prescribed requirements.

Return of parts

57. (1) Every repairer shall offer to return to the consumer all parts removed in the course of work or repairs and shall return all such parts unless advised when the work or repairs are authorized that the consumer does not require their return.

Parts kept separate

(2) Every repairer shall keep parts removed from goods being repaired separate from the parts removed from any other goods and, if their return is requested by the consumer, shall return the parts in a clean container.

Exception

(3) Subsections (1) and (2) do not apply to,

(a) parts for which there has been no charge for the part or for work on or repair to the part; or

(b) parts replaced under warranty whose return to the manufacturer or distributor is required.

Invoice

58. The repairer shall, on completion of work or repairs, deliver to the consumer an invoice containing the prescribed information in the prescribed manner.

Warranty for vehicles

59. (1) On the repair of a vehicle, every repairer shall be deemed to warrant all new or reconditioned parts installed and the labour required to install them for a minimum of 90 days or 5,000 kilometres, whichever comes first.

Same

(2) The warranty in subsection (1) is in addition to the deemed and implied conditions and warranties set out in section 9.

Failure of work or repairs under warranty

(3) The person having charge of a vehicle that becomes inoperable or unsafe to drive because of the failure or inadequacy of work or repairs to which a warranty under this section applies may, when it is not reasonable to return the vehicle to the original repairer, have the failure or inadequacy repaired at the closest facility available for the work or repairs.

Recovery of cost of failed work or repairs

(4) When work or repairs are made under subsection (3), the person entitled to a warranty under this section is entitled to recover from the original repairer the original cost of the work or repairs and reasonable towing charges.

Loss of warranty

(5) A consumer who subjects any vehicle part to misuse or abuse is not entitled to the benefit of the warranty on that part.

Same

(6) No repairer shall refuse to reimburse a consumer because of the operation of subsection (5) unless the repairer has reasonable grounds to believe that the part under warranty was subjected to misuse or abuse.

Return of parts

(7) A consumer who is seeking reimbursement under this section shall return, upon the request and at the expense of the original repairer, the defective parts to the original repairer unless, in the circumstances, it is not reasonably possible for the consumer to do so.

Reimbursement

(8) An original repairer who is required to make a payment under this section is entitled to recover from the supplier of a defective part any amount paid to the consumer under subsection (4).

Consistent cost

60. No repairer shall give an estimate or charge an amount for work or repairs that is greater than that usually given or charged by that repairer for the same work or repairs merely because the cost is to be paid, directly or indirectly, by an insurance company licensed under the Insurance Act.

Transition

61. (1) Sections 51 to 60 apply to all consumer agreements for work or repair that are entered into on or after the day this section is proclaimed in force.

Same

(2) The Motor Vehicle Repair Act, as it existed immediately before its repeal by the Consumer Protection Statute Law Amendment Act, 2002, applies to agreements for work or repair to a vehicle entered into before its repeal.

PART VII
CREDIT AGREEMENTS

General

Definitions

62. In this Part,

"advance" means value received by the borrower under a credit agreement as determined in the prescribed manner; ("avance")

"annual percentage rate" means the annual percentage rate in respect of a credit agreement that is determined in the prescribed manner; ("taux de crédit")

"borrower" means the consumer who is a party to a credit agreement or prospective credit agreement who, respectively, receives or will receive credit from the other party but does not include a guarantor; ("emprunteur")

"brokerage fee" means the payment that a borrower makes or agrees to make to a loan broker who assists or attempts to assist the borrower in arranging a credit agreement, and includes an amount that the lender deducts from an advance and pays to the broker; ("frais de courtage")

"cost of borrowing" means all amounts that a borrower is required to pay under or as a condition of entering into a credit agreement other than,

(a) a payment or repayment of a portion of the principal under the agreement as prescribed, and

(b) prescribed charges; ("coût d'emprunt")

"credit agreement" means a consumer agreement under which a lender extends credit to a borrower and includes a loan of money, a supplier credit agreement and a consumer agreement under which a loan of money or supplier credit agreement may occur in the future, but does not include an agreement under which a lender extends credit on the security of a mortgage of real property or consumer agreements of a prescribed type; ("convention de crédit")

"default charge" means a charge imposed on a borrower who does not make a payment as it comes due under a credit agreement or who does not comply with any other obligation under a credit agreement, but does not include interest on an overdue payment; ("frais de défaut")

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

"floating rate" means a rate that bears a specified mathematical relationship to a public index that meets the prescribed requirements; ("taux variable")

"lender" means a supplier who is a party to a credit agreement or prospective credit agreement who, respectively, extends or will extend credit to the borrower and includes a credit card issuer; ("prêteur")

"optional service" means a service that is offered to a borrower in connection with a credit agreement and that the borrower does not have to accept in order to enter into the agreement; ("service facultatif")

"supplier credit agreement" means a consumer agreement, other than a consumer agreement involving leases to which Part VIII applies, under which a supplier or an associate of the supplier, extends fixed credit to a consumer to assist the consumer in obtaining goods or services, other than credit, from the supplier; ("convention de crédit fournisseur")

"supplier creditor" means the supplier or an associate of a supplier in a supplier credit agreement. ("créancier fournisseur")

Non-application of Part

63. (1) This Part does not apply to a supplier credit agreement that,

(a) requires the borrower to make payment in full in a single payment within a certain period after the supplier delivers a written invoice or statement of account to the borrower;

(b) is unconditionally interest-free during the period for payment described in clause (a);

(c) does not provide for any non-interest charges;

(d) is unsecured apart from liens on the goods or services supplied through the agreement that may arise by operation of law; and

(e) the supplier cannot assign in the ordinary course of business other than as security.

Obligations of loan brokers

(2) If a loan broker assists or attempts to assist in the arrangement of credit and the creditor is not in the business of supplying credit, the obligations that this Part would impose on a lender shall be deemed to be obligations of the loan broker and not the creditor, except as prescribed.

Initial disclosure statement

(3) If the borrower pays or is liable to pay a brokerage fee, the initial disclosure statement for the credit agreement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Transitional

(4) Section 72 and subsection 75 (1) do not apply to a credit agreement that the parties have entered into before this section comes into force and sections 24, 25 and 28 of the Consumer Protection Act, as they read immediately before their repeal by the Consumer Protection Statute Law Amendment Act, 2002, continue to apply to that agreement.

Agreement for credit card

64. (1) Despite section 13, a consumer who applies for a credit card without signing an application form or who receives a credit card from a credit card issuer without applying for it shall be deemed to have entered into a credit agreement with the issuer with respect to the card on first using the card.

Liability

(2) A consumer described in subsection (1) is not liable to pay the lender any amount in respect of the credit card received in the circumstances described in that subsection until the consumer uses the card.

Limiting liability for unauthorized charges

65. The maximum liability of a borrower for unauthorized charges under a credit agreement for open credit may be limited as prescribed.

Consequence of non-disclosure

66. A borrower under a credit agreement is not liable to pay the lender,

(a) the cost of borrowing under a credit agreement if the borrower receives no statements required by this Part; or

(b) as part of the cost of borrowing, any amount in excess of the amounts specified in the statements that this Part requires to be delivered to the borrower in respect of the agreement.

Correcting errors

67. If there is an error in a statement of account issued under a credit agreement for open credit, the lender shall correct the error in accordance with the prescribed requirements.

Required insurance

68. (1) A borrower who is required under a credit agreement to purchase insurance may purchase it from any insurer who may lawfully provide that type of insurance, except that the lender may reserve the right to disapprove, on reasonable grounds, an insurer selected by the borrower.

Disclosure by lender

(2) A lender who offers to provide or to arrange insurance required under a credit agreement shall at the same time disclose to the borrower in writing that the borrower may purchase the insurance through an agent or an insurer of the borrower's choice.

Termination of optional services

69. (1) A borrower may terminate an optional service of a continuing nature provided by the lender or an associate of the lender on giving 30 days notice or such shorter period of notice as is specified in the agreement under which the service is provided.

Liability of borrower

(2) A borrower who terminates an optional service in accordance with subsection (1) is not liable for charges relating to any portion of the service that has not been provided at the time of termination and is entitled to a refund of amounts already paid for those charges.

Notice

(3) Notice under subsection (1) may be given in any way as long as it indicates the intention of the borrower to terminate the optional service and section 88 applies, with necessary modification, to such notice.

Deferral of payments

70. (1) If the lender under a credit agreement invites the borrower to defer making a payment that would otherwise be due under the agreement, the invitation must disclose whether or not interest will accrue on the unpaid amount during the period of the deferral and, if interest will accrue, the invitation must also disclose the interest rate.

Waiver of interest

(2) If the lender does not comply with subsection (1), the lender shall be deemed to have waived the interest that would otherwise accrue during the period.

Default charges

71. A lender is not entitled to impose on a borrower under a credit agreement default charges other than,

(a) reasonable charges in respect of legal costs that the lender incurs in collecting or attempting to collect a required payment by the borrower under the agreement;

(b) reasonable charges in respect of costs, including legal costs, that the lender incurs in realizing a security interest or protecting the subject-matter of a security interest after default under the agreement; or

(c) reasonable charges reflecting the costs that the lender incurs because a cheque or other instrument of payment given by the borrower under the agreement has been dishonoured.

Prepayment

72. (1) A borrower is entitled to pay the full outstanding balance under a credit agreement at any time without any prepayment charge or penalty.

Refund or credit to borrower

(2) If a borrower prepays the full outstanding balance under a credit agreement for fixed credit, the lender shall refund to the borrower or credit the borrower with the portion of the charges, other than charges on account of interest, that was paid by the borrower under the agreement or that was added to the balance under the agreement.

Determining refund or credit

(3) The portion of the charges, other than charges on account of interest, that is to be refunded or credited to the borrower under subsection (2) shall be determined in the prescribed manner.

Partial prepayment

(4) A borrower is entitled to prepay a portion of the outstanding balance under a credit agreement for fixed credit on any scheduled date of the borrower's required payments under the agreement or once in any month without any prepayment charge or penalty.

No credit to borrower

(5) A borrower who makes a payment under subsection (4) is not entitled to a credit for the charges, other than charges on account of interest, that the borrower was required to pay under the agreement or that were added to the outstanding balance under the agreement.

Disclosure

Representations

73. No lender shall make representations or cause representations to be made with respect to a credit agreement, whether orally, in writing or in any other form, unless the representations comply with the prescribed requirements.

Disclosure of brokerage fee

74. (1) If a lender deducts a brokerage fee from an advance, the lender's initial disclosure statement must,

(a) disclose the amount of the brokerage fee; and

(b) account for the brokerage fee in the annual percentage rate and in the cost of borrowing.

Loan broker's statement

(2) If a loan broker takes an application from a borrower for a credit agreement and sends it to a lender, the loan broker shall deliver a statement to the borrower containing the information required in the initial disclosure statement referred to subsection (1), any other information required by this Part and any prescribed information.

Lender adopting loan broker's statement

(3) If a loan broker has delivered a statement to the borrower, the lender may adopt it as his, her or its own initial disclosure statement or may elect to deliver a separate initial disclosure statement to the borrower.

Initial disclosure statement

75. (1) Every lender shall deliver an initial disclosure statement for a credit agreement to the borrower at or before the time that the borrower enters into the agreement.

Contents of statement, fixed credit

(2) The initial disclosure statement for a credit agreement for fixed credit shall disclose the prescribed information.

Contents of statement, open credit

(3) The initial disclosure statement for a credit agreement for open credit shall disclose the prescribed information.

Brokerage fee

(4) If a loan broker assists in arranging a credit agreement, the initial disclosure statement shall disclose the prescribed information.

Subsequent disclosure: fixed credit

76. (1) If the interest rate in a credit agreement for fixed credit is a floating rate, the lender shall, at least once every 12 months after entering into the agreement, deliver to the borrower a disclosure statement for the period covered by the statement disclosing the prescribed information.

Increase in interest rate

(2) If the interest rate in a credit agreement for fixed credit is not a floating rate and the agreement allows the lender to change the interest rate, the lender shall, within 30 days after increasing the annual interest rate to a rate that is at least 1 per cent higher than the rate most recently disclosed to the borrower, deliver to the borrower a disclosure statement disclosing the prescribed information.

Insufficient scheduled payments

(3) The lender shall deliver to the borrower notice if the amount of the borrower's scheduled payments required by a credit agreement for fixed credit is no longer sufficient to cover the interest accrued under the agreement because the principal set out in the agreement has increased as a result of default charges or the failure of the borrower to make payments under the agreement.

Notice

(4) The notice under subsection (3) shall be in writing, shall disclose the situation and shall be delivered within 30 days after the point when the amount of the scheduled payments is no longer sufficient to cover the accrued interest.

Amendments

(5) If information disclosed in a disclosure statement delivered under this section changes because the parties have agreed to amend a credit agreement, the lender shall deliver a supplementary disclosure statement to the borrower within 30 days after the amendment is made setting out the changed information, subject to subsection (6).

Exception

(6) If an amendment to a credit agreement consists only of a change in the schedule of required payments by the borrower, it is not necessary for the supplementary disclosure statement to disclose any change to the annual percentage rate or any decrease in the total required payments by the borrower or the total cost of borrowing under the agreement.

Subsequent disclosure: open credit

77. (1) Subject to subsection (2), the lender under a credit agreement for open credit shall deliver a statement of account to the borrower at least once monthly after entering into the agreement.

Exception

(2) The lender is not required to deliver a statement of account to the borrower at the end of any period when, since the most recent statement of account, the borrower has received no advances and made no payments under the agreement and,

(a) at the end of the period the outstanding balance payable by the borrower under the agreement is zero; or

(b) the borrower is in default and has been notified that the lender has cancelled or suspended his or her right to obtain advances under the agreement and has demanded payment of the outstanding balance.

Information about account

(3) The lender shall provide to the borrower a telephone number at which the borrower can make inquiries about the borrower's account during the lender's ordinary business hours without incurring any charges for the telephone call.

Contents of statement of account

(4) A statement of account for a credit agreement for open credit shall disclose the prescribed information.

Change in interest rate

(5) A lender under a credit agreement for open credit who, pursuant to the agreement, changes the interest rate under the agreement shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, in the case of a credit agreement that is not for a credit card; and

(b) at least 30 days before the change, in the case of a credit agreement that is for a credit card where the interest rate is not a floating rate.

Other changes

(6) A lender under a credit agreement for open credit who, pursuant to the agreement, changes any of the matters prescribed under subsection 75 (3), other than the interest rate under the agreement, shall deliver a disclosure statement to the borrower disclosing the change,

(a) in the next statement of account after the change, if the change is not a material change, as prescribed; and

(b) at least 30 days before the change, if the change is a material change, as prescribed.

Assignment of Security for Credit

Assignment of negotiable instrument

78. (1) If a person assigns a negotiable instrument given to secure credit, the person shall deliver to the assignee with the negotiable instrument a copy of the statement required by section 75 and, if the person is a supplier creditor, a copy of the consumer agreement for the goods or services that were obtained with credit.

Reassignment of negotiable instrument

(2) Every assignee of a negotiable instrument who reassigns the instrument shall deliver to the person to whom the instrument is being reassigned the statement and the consumer agreement, if any, received by the assignee in respect of the instrument.

Indemnity

(3) If an assignee of a negotiable instrument to which subsection (2) applies is entitled to recover on the instrument from the maker, the maker is entitled to be indemnified by any assignor of the instrument who has not complied with subsection (1) or (2), as the case may be.

Obligations of assignee of lender

79. (1) The assignee of any rights of a person who extends credit has no greater rights than and is subject to the same obligations, liabilities and duties as the assignor, and the provisions of this Act apply equally to such assignee.

Same

(2) Despite subsection (1), a borrower shall not recover from, or be entitled to set off against, an assignee of the person who extended credit an amount greater than the balance owing on the consumer agreement at the time of the assignment, and, if there have been two or more assignments, the borrower shall not recover from an assignee who no longer holds the benefit of the consumer agreement an amount that exceeds the payments made by the borrower to that assignee.

Order to pay indemnity

80. (1) If an assignor of a negotiable instrument is convicted of a contravention of section 78, the Ontario Court of Justice making the conviction may order that the person convicted is liable to indemnify the maker under subsection 78 (3).

Filing indemnity order in court

(2) If an indemnity order is made under subsection (1) in favour of a person who is or becomes liable under a judgment of a court to an assignee of the negotiable instrument in respect of which the indemnity order was made, the person entitled to the indemnity may file the indemnity order in the court office of the court in which the judgment was issued.

Default judgment

(3) Upon the filing of the indemnity order, the local registrar or clerk of the court shall issue a default judgment in favour of the person entitled to the indemnity and against the person required by the indemnity order to give the indemnity, and the amount of the default judgment shall be the amount of the judgment referred to in subsection (1) and costs together with the costs of issuing the default judgment, or such lesser amount as the person entitled to the indemnity by requisition requests.

Setting aside or variation of default judgment

(4) Upon application, the court in which the default judgment is issued may set aside the default judgment or may determine the amount of the indemnity or make an order of reference for the purpose and may vary the amount of the default judgment.

Allowance for trade-in subject to adjustment

81. (1) If the amount to be paid by a consumer under a consumer agreement is determined after an allowance for a trade-in and is stated in the consumer agreement to be subject to adjustment after the existence or amount of liens against the trade-in is ascertained or confirmed, any statements of the terms of payment and the cost of borrowing, as required under this Act, shall be based upon the amount as determined upon the information provided by the consumer.

Further adjustments

(2) If there is an additional adjustment to the amount to be paid by a consumer under a consumer agreement to which subsection (1) applies after the adjustment under subsection (1), the consumer agreement shall not be adjusted to change,

(a) the percentage rate by which the cost of borrowing is expressed;

(b) the total number of instalments required to pay the total indebtedness; or

(c) the price shown in the consumer agreement.

PART VIII
LEASING

Definitions

82. In this Part,

"lease" means a consumer agreement for the lease of goods, other than a consumer agreement for the lease of goods in connection with a residential tenancy agreement, and "lessor" and "lessee" have a corresponding meaning; ("convention de location", "bailleur", "preneur")

"lease term" means the period during which the lessee is entitled to retain possession of the leased goods; ("durée de la convention")

"residual obligation lease" means a lease under which the lessor may require the lessee at the end of the lease term to pay the lessor an amount based in whole or in part on the difference, if any, between,

(a) the estimated wholesale value of the leased goods at the end of the lease term, and

(b) the realizable value of the leased goods at the end of the lease term. ("convention à obligation résiduelle")

Application of Part

83. This Part applies to,

(a) leases for a fixed term of four months or more;

(b) leases for an indefinite term or that are renewed automatically until one of the parties takes positive steps to terminate them; and

(c) residual obligation leases.

Advertising

84. Any person who makes representations or causes representations to be made about the cost of a lease, whether orally, in writing or in any other form, shall do so in accordance with the prescribed requirements.

Disclosure statement

85. (1) Every lessor shall deliver a disclosure statement for a lease to the lessee before the earlier of,

(a) the time that the lessee enters into the lease; and

(b) the time that the lessee makes any payment in connection with the lease.

Contents of statement

(2) The disclosure statement for a lease shall disclose the prescribed information.

Compensation re: termination of lease

86. (1) The maximum amount of compensation that may be charged to a lessee by a lessor for termination of a lease before the end of the lease term may be limited as prescribed.

Residual obligation lease

(2) The maximum liability of the lessee at the end of the term of a residual obligation lease after returning the leased goods to the lessor shall be the amount calculated in the prescribed manner.

PART IX
PROCEDURES
FOR CONSUMER REMEDIES

Application

87. This Part does not apply to remedies claimed in respect to unfair practices under Part III.

Form of consumer notice

88. (1) If this Act requires a consumer to give notice to a supplier to request a remedy, the consumer may do so by giving notice in accordance with this section.

Same

(2) The notice may be expressed in any way, as long as it indicates the intention of the consumer to seek the remedy being requested and complies with any requirements that may be prescribed.

Delivery of notice

(3) The notice may be delivered by any means.

Notice given when sent

(4) If notice is given other than by personal service, the notice shall be deemed to be given when sent.

Address

(5) The consumer may send or deliver the notice to the address set out in a consumer agreement or, if the consumer did not receive a written copy of a consumer agreement or the address was not set out in the written agreement, the consumer may send or deliver the notice,

(a) to any address of the supplier on record with the Government of Ontario or the Government of Canada; or

(b) to an address of the supplier known by the consumer.

Cancellation

89. (1) If a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel the agreement by giving notice in accordance with section 88.

Effective time

(2) The cancellation takes effect when the consumer gives notice.

Effect of cancellation

90. The cancellation of a consumer agreement in accordance with this Act operates to cancel, as if they never existed,

(a) the consumer agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the consumer agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the consumer agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended arranged or facilitated by the person with whom the consumer reached the consumer agreement, or

(ii) otherwise related to the consumer agreement.

Obligations on cancellation

91. (1) If a consumer cancels a consumer agreement, the supplier shall, in accordance with the prescribed requirements,

(a) refund to the consumer any payment made under the agreement or any related agreement; and

(b) return to the consumer in a condition substantially similar to when they were delivered all goods delivered under a trade-in arrangement or refund to the consumer an amount equal to the trade-in allowance.

Repossession or return of goods

(2) Upon cancelling a consumer agreement, the consumer, in accordance with the prescribed requirements and in the prescribed manner, shall permit the goods that came into the consumer's possession under the agreement or a related agreement to be repossessed, shall return the goods or shall deal with them in such manner as may be prescribed.

Reasonable care

(3) If a consumer cancels a consumer agreement, the consumer shall take reasonable care of the goods delivered to the consumer under the agreement or a related agreement for the prescribed period.

To whom obligation owed

(4) The consumer owes the obligation described in subsection (3) to the person entitled to possession of the goods at the time in question.

No further obligation

(5) Compliance with this section discharges the consumer from all obligations relating to the goods and the consumer is under no other obligation, whether arising by contract or otherwise, to take care of the goods.

Right of action

(6) If a consumer has cancelled a consumer agreement and the supplier has not met the supplier's obligations under subsection (1), the consumer may commence an action.

Title to goods under trade-in arrangement

92. If the consumer recovers an amount equal to the trade-in allowance under subsection 91 (1) and the title of the consumer to the goods delivered under the trade-in arrangement has not passed from the consumer, the title to the goods vests in the person entitled to the goods under the trade-in arrangement.

Illegal payments

93. (1) If a supplier has received a payment in contravention of this Act, the consumer who made the payment may demand a refund of the payment by giving notice in accordance with section 88 within one year after making the payment.

Refund of illegal payment

(2) A supplier who receives a notice demanding a refund of a payment that was received in contravention of this Act, shall refund the payment within the prescribed period of time.

Right of action

(3) The consumer who made a payment that was received in contravention of this Act may commence an action to recover the payment in accordance with section 95.

Consumer's recourse re: credit card charges

94. (1) A consumer who has charged to a credit card account all or any part of a payment described in subsection (2) may request the credit card issuer to cancel or reverse the credit card charge and any associated interest or other charges.

Types of payment

(2) Subsection (1) applies to,

(a) a payment in respect of a consumer agreement that has been cancelled under this Act;

(b) a payment that was received in contravention of this Act; and

(c) a payment that was collected in respect of unsolicited goods or services for which payment is not required under section 13.

Timing of request

(3) A consumer may make a request under subsection (1) if the consumer has cancelled a consumer agreement or demanded a refund in accordance with this Act, and the supplier has not refunded all of the payment within the required period.

Form and delivery of notice

(4) A request under subsection (1) shall be in writing and shall be delivered to the credit card issuer, in the prescribed period, in accordance with section 88.

Obligation of credit card issuer

(5) The credit card issuer shall,

(a) acknowledge the consumer's request within the prescribed period; and

(b) if the request meets the requirements of subsection (4),

(i) cancel or reverse the credit card charge and any associated interest or other charges within the prescribed period, or

(ii) send a written notice to the consumer, after having conducted an investigation, explaining the reasons why the credit card issuer is of the opinion that the consumer is not entitled to cancel the consumer agreement or to demand a refund under this Act.

Right of action

(6) A consumer may commence an action against a credit card issuer to recover a payment and associated interest and other charges to which the consumer is entitled under this section.

Other prescribed payment systems

(7) If a consumer charges all or part of a payment described in subsection (2) to a prescribed payment system, the consumer may request that the charge be cancelled or reversed and this section applies with necessary modifications to the cancellation or reversal of such a charge.

Action in Superior Court of Justice

95. (1) If a consumer has a right to commence an action under this Act, the consumer may commence the action in the Superior Court of Justice.

Judgment

(2) If a consumer is successful in an action,

(a) the court shall order that the consumer recover,

(i) the full payment to which he or she is entitled under this Act, and

(ii) all goods delivered under a trade-in arrangement or an amount equal to the trade-in allowance; and

(b) the court may order exemplary or punitive damages or such other relief as the court considers proper.

Waiver of notice

96. If a consumer is required to give notice under this Act in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

PART X
POWERS AND DUTIES OF MINISTER
AND DIRECTOR

Powers of Minister

97. (1) The Minister may,

(a) disseminate information for the purpose of educating and advising consumers;

(b) provide information to consumers about the use of alternate dispute resolution techniques as a means of resolving disputes arising out of consumer transactions; and

(c) enforce this Act and other legislation for the protection of consumers.

Enforcement agreements

(2) For the purpose of enforcing this Act and other legislation for the protection of consumers, the Minister may,

(a) enter into agreements with law enforcement agencies in Canada and other jurisdictions; and

(b) for the purposes of clause (a), share and exchange information concerning breaches or possible breaches of this Act or other legislation for the protection of consumers.

Duties of Director

98. (1) The Director shall perform such duties and exercise such powers as are given to or conferred upon the Director under this or any other Act.

Same

(2) The Director shall maintain, in accordance with the prescribed requirements, a public record of the following:

1. Undertakings of voluntary compliance entered into under this Act.

2. Compliance orders issued under this Act.

3. Orders to cease false advertising.

4. Any other prescribed document or information.

Same

(3) The Director shall publish such documents or information as are prescribed.

Transition

(4) Records that the Director maintained available for public inspection as required by section 5 of the Business Practices Act before its repeal are deemed to be records that are to be maintained for purposes of subsection (2).

Fees

99. (1) The Minister may by order require the payment of fees for the inspection of public records maintained under section 98 and may approve the amount of those fees.

Same

(2) Orders made under subsection (1) are not regulations within the meaning of the Regulations Act.

PART XI
GENERAL

Ministry receives complaints and makes inquiries

100. The Ministry may,

(a) receive complaints concerning conduct that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act; and

(b) make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate, concerning any matter that comes to its attention that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act.

Appointment of investigators

101. (1) The Director may appoint persons to be investigators for the purposes of conducting investigations.

Certificate of appointment

(2) The Director shall issue to every investigator a certificate of appointment bearing his or her signature or a facsimile of the signature.

Production of certificate of appointment

(3) Every investigator who is exercising powers under section 102 shall, upon request, produce the certificate of appointment as an investigator.

Search warrant

102. (1) Upon application made without notice by an investigator appointed under this Act, a justice of the peace may issue a warrant, if he or she is satisfied on information under oath that there is reasonable ground for believing that,

(a) a person has contravened or is contravening this Act or the regulations; and

(b) there are in any building, dwelling, receptacle or place any money, valuables, documents, records or other things relating to the contravention of this Act or the regulations.

Powers under warrant

(2) A warrant obtained under subsection (1) may authorize the investigator named in the warrant,

(a) to enter premises, including a dwelling, specified in the warrant;

(b) to exercise any of the powers specified in subsections (5), (6), (11) and (12); and

(c) to use any investigative technique or procedure or do anything described in the warrant if there are reasonable grounds to believe that information and other evidence relevant to the reason for issuing the warrant will be obtained through the use of the technique or procedure or the doing of the thing.

Conditions on search warrant

(3) A warrant obtained under subsection (1) shall contain such conditions as the justice of the peace considers advisable to ensure that any search authorized by the warrant is reasonable in the circumstances.

Expert help

(4) The warrant may authorize persons who have special, expert or professional knowledge to accompany and assist the investigator in respect of the execution of the warrant.

Powers

(5) A warrant obtained under subsection (1) may authorize the investigator to,

(a) upon producing his or her appointment, during the hours specified in the warrant enter the premises specified in the warrant and examine money, valuables, documents, records and other things relevant to the investigation;

(b) use any data storage, processing or retrieval device or system used in carrying on business in order to produce a document or record in readable form;

(c) inquire into the affairs of the person being investigated, including any negotiations, transactions, loans and borrowings made by or on behalf of or in relation to the person and into property or things acquired or disposed of by the person or anyone acting on the person's behalf that are relevant to the investigation.

Same

(6) For the purposes of this section, the investigator has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act.

Time of execution

(7) An entry under a warrant issued under this section shall be made between 6 a.m. and 9 p.m., unless the warrant specifies otherwise.

Expiry of warrant

(8) A warrant issued under this section shall name a date of expiry, which shall be no later than 30 days after the warrant is issued but a justice of the peace may extend the date of expiry for an additional period of no more than 30 days, upon application without notice by the investigator named in the warrant.

Use of force

(9) The investigator named in the warrant may call upon police officers for assistance in executing the warrant and the investigator may use whatever force is reasonably necessary to execute the warrant.

Obstruction

(10) No person shall obstruct an investigator carrying out an investigation under this section or withhold from him or her or conceal, alter or destroy any money, valuables, documents, records or other things relevant to the investigation.

Assistance

(11) An investigator may, in the course of an investigation, require a person to produce a document or record and to provide whatever assistance is reasonably necessary, including using any data storage, processing or retrieval device or system to produce a document or record in readable form and the person shall produce the document or record or provide the assistance.

Removal of things

(12) An investigator carrying out an investigation may, upon giving a receipt for it, remove for review and copy a document, record or other thing relevant to the investigation, including any data storage disk or other retrieval device in order to produce a document or record in readable form, but the investigator shall return the item within a reasonable time.

Admissibility

(13) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

Searches in exigent circumstances

103. (1) Although a warrant issued under section 102 would otherwise be required, an investigator may exercise any of the powers described in subsection 102 (2) without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would be impracticable to obtain the warrant.

Dwellings

(2) Subsection (1) does not apply to a building or part of a building that is being used as a dwelling place.

Use of force

(3) The investigator may, in executing any authority given by this section, call upon police officers for assistance and use whatever force is reasonably necessary.

Admissibility

(4) A copy of a document or record certified by an investigator as being a true copy of the original is admissible in evidence to the same extent as the original and has the same evidentiary value.

False, misleading or deceptive representation

104. (1) If the Director believes on reasonable grounds that any person is making a false, misleading or deceptive representation in respect of any consumer transaction in an advertisement, circular, pamphlet or material published by any means, the Director may,

(a) order the person to cease making the representation; and

(b) order the person to retract the representation or publish a correction of equal prominence to the original publication.

Real property

(2) Despite clause 2 (2) (f), this section applies to any representations involving real property.

Order effective

(3) The order takes effect immediately upon being made.

Service

(4) The Director shall serve the order, together with written reasons for it, on the person named in it.

Request for a hearing

(5) The order shall inform the person named in it that the person may request a hearing before the Tribunal by mailing or delivering a written notice of request for a hearing to the Director and the Tribunal within 15 days after service of the order.

Hearing date

(6) If the person gives a notice of request for a hearing within the allowed time, the Tribunal shall hold a hearing.

Stay of order

(7) The Tribunal may stay the order until it confirms or sets aside the order under subsection (9).

Parties

(8) The Director, the person who requested the hearing and the persons whom the Tribunal specifies are parties to the hearing.

Powers of Tribunal

(9) After holding the hearing, the Tribunal may,

(a) confirm the order with the amendments, if any, that the Tribunal considers proper to give effect to the purposes of the Act; or

(b) set aside the order.

Same

(10) In confirming or setting aside the order, the Tribunal may substitute its opinion for that of the Director.

Appeal

(11) Even if the person named in an order made under this section appeals it under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.

Freeze order

105. (1) If the conditions in subsection (2) are met, the Director may, in writing,

(a) order any person having on deposit or controlling any assets or trust funds of a supplier or former supplier to hold those funds or assets;

(b) order a supplier or former supplier to refrain from withdrawing any asset or trust fund from a person having them on deposit or controlling them; or

(c) order a supplier or former supplier to hold any asset or trust fund of a consumer or other person in trust for the person entitled to it.

Conditions

(2) The Director may make an order under subsection (1) if he or she believes that it is advisable for the protection of consumers and,

(a) an investigation of the person has been undertaken under this Act;

(b) an order has been made under section 106 or 107; or

(c) there has been an undertaking of voluntary compliance under section 109.

Person engaged in unfair practice

(3) Subsections (1) and (2) apply with necessary modifications to any person, whether or not the person is or was a supplier, if the person has engaged or is engaging in unfair practices under this Act.

Limitation

(4) In the case of a bank or authorized foreign bank within the meaning of section 2 of the Bank Act (Canada), a credit union within the meaning of the Credit Unions and Caisses Populaires Act, 1994 or a loan or trust corporation, the order under subsection (1) applies only to the offices and branches named in the order.

Release of assets

(5) The Director may consent to the release of any particular asset or trust fund from the order or may wholly revoke the order.

Exception

(6) Subsection (1) does not apply if the person files with the Director, in such manner and amount as the Director determines,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance;

(c) a bond of a guarantor accompanied by collateral security; or

(d) another prescribed form of security.

Application to court

(7) An application may be made to the Superior Court of Justice for a determination in respect of the disposition of an asset or trust fund,

(a) by a person in receipt of an order under subsection (1), if that person is in doubt as to whether the order applies to the asset or trust fund; or

(b) by a person who claims an interest in the asset or trust fund subject to the order.

Notice

(8) If an order is made under this section, the Director may register in the appropriate land registry office a notice that an order under subsection (1) has been issued and that the order may affect land belonging to the person referred to in the notice and the notice has the same effect as the registration of a certificate of pending litigation except that the Director may in writing revoke or modify the notice.

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