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The Prearranged Funeral Services Amendment Act

S.M. 1989-90, c. 58

Bill 78, 2nd Session, 34th Legislature

The Prearranged Funeral Services Amendment Act

(Assented to March 15, 1990)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. F200 amended

1           The Prearranged Funeral Services Act is amended by this Act.

Section 1 amended

2           Section 1 is amended

(a) by adding "including cremation," after "commodity," in the definition of "funeral services"; and

(b) by adding the following definition in alphabetical order in the section:

"moneys" or "plan moneys" means money paid by a purchaser to a licensee under a prearranged funeral plan and includes

(a) the interest that accrues or ought to accrue on the money,

(b) the income earned by the money inclusive of interest, and

(c) the capital gain realized upon the liquidation of an asset or property in which the money is invested by an authorized trustee,

but does not include amounts that may be deducted in accordance with this Act or the regulations. («sommes» ou «sommes payées aux termes d'un arrangement»)

Subsections 2(3) to (5), repeal and substitution

3           Subsections 2(3), (4) and (5) are repealed and the following subsections are substituted:

Employment of salesperson or agent

2(3)        A licensee may employ a salesperson or a person to act as an agent for the purpose of soliciting persons to enter into a prearranged funeral plan with the licensee, but no person shall act as such agent or salesperson unless the person

(a) holds a valid and subsisting written authority from the licensee authorizing him or her so to act as agent or salesperson for the licensee; and

(b) applies to and obtains from the board a licence in the form prescribed in the regulations to act as agent or salesperson of a licensee.

No canvassing or soliciting

2(4)        Notwithstanding the issuance of a licence, no person shall canvass or solicit a patient in a hospital, a resident of a nursing home or a resident of a senior citizens rest home for the purchase of a prearranged funeral plan.

Contract between purchaser and licensee

2(5)        Every contract entered into by a purchaser through an agent or salesperson shall be made between the purchaser and a specific licensee and in no case shall an agent or salesperson be a party to the contract.

Subsection 4(3), repeal and substitution

4           Subsection 4(3) is repealed and the following subsections are substituted:

Forfeiture

4(3)        Where a prearranged funeral plan is terminated, cancelled or discontinued at the request of the purchaser, the amount, if any, retained under subsection (2) is forfeited to the licensee as a penalty.

Where no amount retained

4(4)        Where a licensee fails to retain an amount pursuant to subsection (2), the licensee may not assert a claim to a penalty under subsection (3).

Transitional, old plans

4(5)        Notwithstanding subsection (3), in the case of a prearranged funeral plan that is entered into before this subsection comes into force, the amount, if any, retained under subsection (2) is forfeited to the licensee as a penalty only if the plan is terminated, cancelled or discontinued at the request of the purchaser within three years after the date of entering into the plan.

Section 5, repeal and substitution

5           Section 5 is repealed and the following is substituted:

Special fund

5(1)        Moneys of which a licensee is trustee under a prearranged funeral plan shall be paid to the authorized trustee within the time prescribed in the regulations for deposit in a special fund.

Separate funds

5(2)        The authorized trustee shall maintain separate special funds for:

(a) moneys under a prearranged funeral plan entered into before this subsection comes into force; and

(b) moneys under a prearranged funeral plan entered into after this subsection comes into force.

Interest and income to purchaser

5(3)        Subject to subsection (4), where a prearranged funeral plan fails to provide that interest and income earned on moneys paid under the plan are payable to the purchaser upon a payment out of moneys to the purchaser under clause 6(1)(a), the plan is deemed to so provide and a provision in the plan to the contrary is unenforceable to the extent that it conflicts with this subsection.

Transitional: existing plans

5(4)        In respect of a prearranged funeral plan entered into before the coming into force of this section, subsection (3) does not apply in respect of interest or income earned on moneys paid under the plan where the plan expressly provides that the interest or the income, or both, is not or are not payable to the purchaser upon a payment out of the plan moneys to the purchaser.

Release of interest

5(5)        Where a prearranged funeral plan entered into before this section comes into force provides that interest on plan moneys or income earned on plan moneys is payable to the licensee, the licensee shall not request the release of that interest or income and the authorized trustee shall not release that interest or income to the licensee or any person on behalf of the licensee until the interest or income has accrued in a manner and to the extent prescribed in the regulations.

Authorized trustee fee deductible

5(6)        A fee payable to an authorized trustee under this Act may be deducted from the interest or the income that is earned on plan moneys and that is payable to a licensee or purchaser under this section, as the board may approve.

Investment

5(7)        Moneys in any special fund for the purposes of this Act may be invested in any investments in which trustees may invest under The Trustee Act.

Subsection 6(1) amended

6(1)        Subsection 6(1) is amended by striking out "paid to" and substituting "held by".

Subsec. 6(2), repeal and substitution

6(2)        Subsection 6(2) is repealed and the following subsection is substituted:

Payment of amount retained

6(2)        With respect to a prearranged funeral plan entered into before this subsection comes into force, where, after the plan has been in operation for at least three years, a payment is made under clause (1)(a), the licensee shall pay to the person entitled to the payment an amount equal to the sum, if any, retained by the licensee under subsection 4(2).

Subsection 7(2) amended

7(1)        Subsection 7(2) is amended

(a) by striking out "1" after "December" and substituting "31"; and

(b) by adding the following clauses after clause (c):

(c.1) the amount of interest accrued or income earned by the fund with respect to each purchaser;

(c.2) the investments made under subsection 5(7);

Subsection 7(3) amended

7(2)        Subsection 7(3) is amended

(a) by striking out "December 31" and substituting "March 1"; and

(b) by striking out "that the statement was compiled and based on information supplied by the licensee" and substituting "the parts of the statement, if any, for which the authorized trustee relies upon information supplied by the licensee".

Section 10, repeal and substitution

8           Section 10 is repealed and the following section is substituted:

Offences and penalties

10          A person who contravenes or who refuses or neglects to observe a provision of this Act or the regulations is guilty of an offence and if no other penalty is expressly provided for the offence, is liable, on summary conviction,

(a) in the case of an individual, to a fine of not more than $10,000. and in default of payment to imprisonment for not more than one month;

(b) in the case of a corporation, to a fine of not more than $50,000.

Section 16 amended

9           Section 16 is amended

(a) by striking out the words which precede clause (a) and substituting "The Lieutenant Governor in Council may make regulations"; and

(b) by repealing clause (c) and substituting the following:

(c) respecting security instruments that are required as a term or condition of a licence under this Act.

Coming into force

10          This Act comes into force on a day fixed by proclamation.